(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 slot machines.
To find that such possession is unlawful and a nuisance is in direct conflict with section 57-104, R. C. M. 1947 (sec. 8645, R. C. M. 1935), which provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. ’ ’
Such possession is neither a nuisance or a crime. See 46 C. J., Nuisances, sec. 40, p. 672, and 39 Am. Jur., Nuisances, sec. 204, p. 480.
Although slot machines are gambling devices, they do not constitute lotteries as defined by the state statutes.
Section 94-3001, R. C. M. 1947, provides: “Lottery defined. A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known.”
Webster’s New International Dictionary defines a lottery to be: “A scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, usually as determined by the numbers or tickets as drawn from a lottery wheel. A game in *183which prizes are given from a pool to holders of cards matching others reserved for that purpose. ’ ’
It is plain that a slot machine does not come within these definitions.
One person only can play a slot machine on each play of the machine. Many persons play a lottery on each play or drawing.
One person only can win on a play of the slot machine. Many persons may win on a play of the lottery.
That the legislature intended the slot machine to be a gambling device is shown by the placing of the' slot machine in the same section of the Codes, section 94-2401, ft. C. M. 1947, with faro, poker, craps and other gambling games.
Companion sections of the statute, enacted at the same time and under the same Chapter as the section defining lotteries, provide punishment for selling lottery tickets, printing or writing lottery tickets, and for “lotteries drawn or to be drawn out of this state * * * in the same manner as to lotteries drawn or to be drawn within this state.” R. C. M. 1947, sec. 94-3010.
"What the legislature meant by lotteries as defined, are those schemes which were used in our early national history to raise money for post roads and government projects, in which tickets were sold to many persons for each drawing and the prize or prizes divided among many persons.
History shows that in 1748 Benjamin Franklin and other good citizens organized a lottery to erect a battery for the defense of the Colonies.
Also in 1764 legislative authority authorized a lottery to rebuild Faneuil Hall, to rebuild the first edifice destroyed by fire in 1761.