State v. Israel , 124 Mont. 152 ( 1950 )

MR. JUSTICE FREEBOURN

(dissenting) :

The state of Montana, under authority of Chapter 142, Session Laws of Montana 1945, gave the defendant organization, for money paid, a license and right to possess such slot machines.

To find that such possession is wrongful and a nuisance is in direct conflict with section 57-104, R. C. M. 1947, sec. 8645, Rev. Codes 1935, which states: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. ’ ’

This is also the law generally. See 46 C. J., Nuisances, sec. 40, p. 672, and 39 Am. Jur., Nuisances, sec. 204, p. 480.