For respondents there was an oral argument by Mr. John P. Kavanaugh, with a brief over the names of L. A. McNary, City Attorney, and J. P. Kavanaugh, to this effect.

1. The State has by the charter of 1903 delegated to the City of Portland all the police power it possessed except such as is specially reserved, and that power may be exercised by the city to the same extent that the State might have exercised it within the corporate limits: Port. Charter 1903, Sec. 73, subds. 1 and 48, and Sec. 74; Dareentel v. Slaughterhouse, 44 La. Ann. 632; Ex parte Tuttle, 91 Cal. 589. This being so, the city is not subject to judicial supervision any more than the State is: Villavaso v. Barthet, 39 La. Ann. 252; Taylor v. Carondelet, 22 Mo. 110; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505; Monson v. Shawneetown, 77 Ill. 533.

2. The city having entire control over the whole subject of intoxicating liquors, has the power to permit the sale on such terms and conditions as may seem appropriate: Ex parte Tuttle, 91 Cal. 589; Schwuchow v. Chicago, 68 Ill. 444; Gunnarsohn v. Sterling, 92 Ill. 569; Burckholter v. McConnellsville, 20 Ohio St. 308.

3. The rule that where there is a general grant of power without a direction as to the mode of its exercise, the acts done under the grant must be "reasonable," does not apply where all the police power of the State is conferred on the municipality (City of Danville v. Hatcher, 101 Va. 523); but is applicable only when part of the police power is conferred, or the ordinance is passed under an implied or incidental power: Car Float v. Jeffersonville, 112 Ind. 15; Shea v. Muncie, 148 Ind. 14; McQuillan, Munic. Ord., § 121, et seq.

4. Municipal councils have a large discretion in the application of the police power, and that discretion will seldom be reviewed: Cooley, Const. Lim. (7 ed.), 556; State v. Loomis, 115 Mo. 373.

5. The restaurant business is a proper subject of regulation and the council had power to prescribe the kinds of apartments that might exist in restaurants where no liquor is sold: Munn v. Illinois, 94 U. S. 113; State v. Clarke, 28 N. H. 176 (61 Am. Dec. 611); State v. Freeman, 38 N. H. 426.

6. The purpose of this ordinance being to advance the public welfare and morals, the enactment is not void because its incidental effect is to allow boxes or private rooms to be maintained in some places of business though prohibited in other resorts of the same kind: Ex parte Tuttle, 91 Cal. 589; Des Moines v. Keller, 116 Iowa, 648 (57 L. R. A. 243, 93 Am. St. Rep. 268); Klug v. Georgia, 77 Ga. 731 (4 Am. St. Rep. 106); People v. Lewis, 86 Mich. 273; Goddard, Petitioner, 16 Pick. 504 (28 Am. Dec. 259).

7. The ordinance in question (14029) does not forfeit plaintiffs' licenses. The city always has a right to regulate and control generally businesses which it has licensed: St. Charles v. Hackman, 133 Mo. 634; Bishoff v. State ex rel. 43 Fla. 67 (30 So. 808).

The local option law does not repeal all local restriction on the subject of intoxicating liquors. The language of the act indicates that local enactments are to continue in force until suspended by the vote of the electors under the act. Since the commencement of this suit the electors have defeated local prohibition in the county and precincts in which plaintiff's places of business are located.

MR. JUSTICE MOORE delivered the opinion of the court.

It is insisted by plaintiffs' counsel that the local option liquor law adopted by the people at the general election held June 6, 1904, in pursuance of initiative petitions (Laws 1905, p. 41, c. 2), deprives the common council of Portland of the power to license, regulate, or restrain the sale of intoxicating liquors in that city, and, this being so, the ordinance complained of is void, and an error was committed in sustaining the demurrer to the complaint. It is argued that the old law and the new cannot both exist at the same time, and that the local option act, being the latest expression of the direct will of the people, supersedes all prior legislation on the subject to which it relates. The act of the people adverted to does not in express terms attempt to repeal any other law. The rule in this State is that, though repeals by implication are not prohibited by the constitution (Grant County v. Sels, 5 Or. 243; Warren v. Crosby, 24 Or.

558, 34 Pac. 661), they are not favored in law or allowable, except where the inconsistency and repugnancy between a prior and a subsequent act on the same subject are plain and unavoidable: McLaughlin v. Hoover, 1 Or. 31; State v. Rogers, 22 Or. 348 (30 Pac. 74); Continental Ins. Co. v. Riggen, 31 Or. 336 (48 Pac. 476). Where, however, the enactment is a new and independent law, revising some previous policy of the State, or altering the whole subject of a prior statute, and evidently intended as a substitute therefor, although containing no abrogating clause, the later act will operate as a repeal of the old law by implication: State v. Benjamin, 2 Or. 125; Fleischner v. Chadwick, 5 Or. 152; Little v. Cogswell, 20 Or. 345 (25 Pac. 727); Strickland v. Geide, 31 Or. 374 (49 Pac. 982); Ex parte Ferdon, 35 Or. 171 (57 Pac. 376); Ladd v. Gambell, 35 Or. 393 (59 Pac. 113); Reed v. Dunbar, 41 Or. 509 (69 Pac. 451). If two statutes relating to the same subject are inconsistent, the later law furnishes the rule of action; and, though it contains no revoking words, it repeals the prior act by implication, so far as the conflict is concerned: Hurst v. Hawn, 5 Or. 275; Smith v. Day, 39 Or. 531 (64 Pac. 812, 65 Pac. 1055). If a later statute, however, only modifies a prior law, the two must be taken together as one act: Winter v. Norton, 1 Or. 43; Bower v. Holladay, 18 Or. 491 (22 Pac. 553); Winters v. George, 21 Or. 251 (27 Pac. 1041). A subsequent act not embracing the entire ground of an earlier statute, and not clearly designed as a substitute therefor, will not repeal the prior act unless its provisions are so repugnant to it that both cannot stand: Booth's Will, 40 Or. 154 (61 Pac. 1135, 66 Pac. 710). In the case last cited, Mr. Chief Justice. BEAN, discussing the interpretation of statutes, says: "It is therefore the duty of the court to adopt any reasonable construction that will give effect to both acts, and, in order that one may have the effect of repealing another by implication, its conflict with the former act must be 'so positive as to be irreconcilable by any fair, strict, or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing

both together in harmony with the whole course of legislation on the subject.'"

1. Keeping these rules in view, the charter of the City of Portland, approved January 23, 1903 (Sp. Laws 1903, p. 3), and the local option law, will be examined, to ascertain if the latter repeals the former by implication, so far as it relates to the subject of intoxicating liquors.

The charter contains the following provisions on that topic: "The council has power and authority ** to grant licenses ** and to provide for the revoking of the same": Sec. 73, subd. 21. "To regulate and restrain bartenders, saloon keepers, dealers in and manufacturers of spirituous, vinous, fermented or malt liquors, barrooms, drinking shops, or places where spirituous, vinous, fermented, or malt liquors are kept for sale, or in any manner disposed of, and the sale and disposal thereof": Sec. 73, subd. 48. The local option law provides, in effect, that whenever a petition therefor has been filed with the county clerk for an election in any county or a subdivision thereof, consisting of one or more entire and contiguous precincts, which may also embrace the whole or a part of any incorporated town or city, the county court of such county shall order an election to be held, to determine whether the sale of intoxicating liquors shall be prohibited in the designated territory: Sec. 1. When an election has been held in pursuance of the provisions of this act, the county clerk shall canvass the returns and make an abstract of the votes, and, if a majority thereof are for prohibition, the county court shall make an order declaring the result, and prohibiting the sale of intoxicating liquors within the. prescribed district: Sec. 10. When such order has been regularly made, any person who thereafter, within the inhibited territory, sells, exchanges, or gives away any intoxicating liquors, shall be subject to prosecution, etc.: Sec. 15.

The adoption of the local option law was the enactment of a new statute relating to intoxicating liquors, but a perusal thereof will show that it was not intended as a substitute for the earlier law, but only as a modification thereof when its provisions become applicable to a specified district by a majority vote of the qualified electors. The county courts of the several counties of

this State are authorized to license the sale of intoxicating liquors outside incorporated towns and cities, but, before such permission can be granted, the applicant therefor is required to file a petition signed by an actual majority of the whole number of legal resident voters of the precinct in which he desires to carry on the business: B. & C. Comp. §§ 3854-3864, as amended by an act approved February 24, 1903: Laws 1903, p. 169. A majority vote for prohibition, cast in pursuance of an election held in any county or subdivision thereof, under the local option law, is tantamount to a remonstrance against the granting of a license by the county court; thereby preventing the sale of intoxicating liquors in any precinct in the designated district until the vote has been regularly changed at a subsequent election so as to be against prohibition. The local option law is therefore only a modification of the earlier statute relating to the mode of protesting against the granting of licenses to sell intoxicating liquors. The charter of Portland does not require an applicant for a liquor license to secure the signatures of any other person to his petition, nor is a remonstrance thereto necessary, the council evidently being authorized to grant the license at the request of the petitioner, and his compliance with the terms of any reasonable ordinance that may be passed relating to the subject. The refusal of a license in an incorporated town or city, in pursuance of a majority vote for prohibition, under the provisions of the local option law, is a modification of the prior acts generally applicable to municipal corporations; but, as such law was not intended to be operative until the expediency or inexpediency of granting licenses was determined by a popular vote, we think that, when the enactment by the people is considered as an entirety, it shows that it was not designed as a substitute for the former law, and hence does not repeal the prior acts by implication.

2. The question not being involved herein, it is unnecessary to determine whether or not the local option act violates Const. Or. Art. I, § 21, which is as follows: "No ex post facto law, or law impairing the obligations of contracts, shall ever be essed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided