(dissenting).
The question of the constitutionality of the statute legalizing punch boards is not properly before this court for two reasons: (1) The question of lottery is not raised by the pleadings; and (2) such constitutionality is not raised by anyone who is directly injured in a legal right by the enforcement of the punch board statute.
It is evident from the record that this action was not intended to punish defendants for a law violation. It is used simply as a vehicle to have this court determine that the state statutes legalizing punch boards are unconstitutional, as contravening that section of our Constitution which prohibits lotteries. In this respect it is no different than where proceedings are instituted seeking a declaratory judgment for the same purpose.
Defendants were neither charged with the crime of operating a lottery nor maintaining a nuisance in the form of a lottery. They were not charged with the crime of illegal gambling, but with maintaining a nuisance in the form of illegal gambling, viz., maintaining in their place of business, the Stockman, “trade stimulators, such as ticket boards and punch boards * * * used by them in conducting, operating”- and “maintaining * * * gambling. ’ ’
The lower court said these “abatement proceedings based upon the complaint * * * involve a charge of gambling; * * * the charge is that the premises were maintained for conducting gambling, specifically * * * that the defendants maintained on the premises trade stimulators such as ticket boards * # In its judgment the lower court said: “Now, it is the conclusion *116of this court from the evidence in this case that all the boards that were operated in the place of business constitutes a violation of the Hickey gambling law of this state and that a permanent injunction * * * will be issued. However, if an appeal is taken * * * to determine what the courts are going to say about the Hickey gambling act insofar as it affects punch boards, that injunction order will not be made as drastic as it could be. =::= * * q j presume you will appeal the ease? A. The defense will appeal the case. The Court': Well, I want that assurance * # Defendants’ business was not closed and no bond was required to remain open.
Under our statutes unlawful gambling and lotteries are separate and different offenses. See: Gambling, R. C. M. 1947, secs. 94-2401-94-2428; and Lotteries, R. C. M. 1947, secs. 94-3001-94-3011.
Our State Constitution recognizes the difference by specifically prohibiting lotteries, while not prohibiting gambling.
Under the complaint, the only question properly before the lower court and this court is: Did the defendants maintain a nuisance by conducting illegal. gambling in operating punch boards.
Since the Constitution does not prohibit the legislature from enacting laws permitting gambling, and since the legislature had legalized punch boards, and defendants were not charged with operating a lottery, and it was not charged that punch boards constituted lotteries, the lower court should have found no nuisance existed by reason of illegal gambling in the operation of punch boards. The fact that some punch boards had no stamps upon them could give rise only to a separate charge under R. C. M. 1947, sec. 84-5702, making such lack of stamps a misdemeanor punishable by a fine up to $100 for each separate offense.
Defendants sustained no injury as a result of the enforcement of the punch board law nor do they complain hereof. Certainly the state is not injured by its enforcement since it receives much needed revenue therefrom.
*117What Justice Gibson said in Chovanak v. Matthews, 120 Mont. 520, 188 Pac. (2d) 582, 584, well applies here, viz.: “It is by reason of the fact that it is only judicial power that the courts possess, that they are not permitted to decide mere differences of opinion between citizens, or between citizens and the state, or the administrative officials of the state, as to the validity of statutes. * * *
“As to the various charges of unconstitutionality levelled against Chapter 142 [Laws of 1945 J by the appellant, it is elementary that none thereof may be considered unless raised by someone who is directly injured in a legal right by the enforcement of the statute, and then only where determination of the constitutional question is rendered necessary to protect the suitor in such invaded right. Pierson v. Hendricksen, 98 Mont. 244, 38 Pac. (2d) 991; Durocher v. Myers, 84 Mont. 225, 274 Pac. 1062; Barth v. Pock, 51 Mont. 418, 155 Pac. 282. * * *
“It is held in Montana, as it is held by the United States Supreme Court, and by courts throughout the nation, that a showing only of such interest in the subject of the suit as the public generally has is not sufficient to warrant the exercise of judicial power. Barth v. Pock, supra; State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 Pac. 204; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 Pac. 631.
“The Supreme Court of the United States also holds that ‘only those to whom a statute applies and who are adversely affected by it can draw in question its constitutional validity in a declaratory judgment proceeding as in any other.’ Alabama State Federation of Labor, etc. v. McAdory, 325 U. S. 450, 65 S. Ct. 1384, 1390, 89 L. Ed. 1725.
“A long line of Montana decisions holds in accordance with this rule of the United States Supreme Court. We cite a few of the many cases so holding: State ex rel. Riley v. District Court, 103 Mont. 576, 64 Pac. (2d) 115; State ex rel. Brooks v. Cook, 84 Mont. 478, 276 Pac. 958; Barth v. Pock, supra; Shea v. North-Butte Mining Co., 55 Mont. 522, 179 Pac. 499.
*118“Nor does the fact that the action here is brought under the Uniform Declaratory Judgments Act, Chapter 90, Revised Codes of Montana 1935, change the rule. It is still judicial power that is sought to be invoked, and that power only extends to actual ‘cases’ and ‘controversies,’ not to abtract questions. Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Holt v. Custer County, 75 Mont. 328, 243 Pac. 811.
“A text writer, Anderson on Declaratory Judgments, section 31, says: ‘The rule is not different in declaratory judgment actions from that obtaining with regard to actions generally, as to the necessity of a personal right in the plaintiff to maintain the action. * * * The general rule is that a party having only such interest as the public generally has cannot maintain a declaratory judgment action.’ ” See also Thomas v. Riggs, 67 Idaho 223, 175 Pac. (2d) 404.