(dissenting):
It is indeed strange that what has been done under license from and by express authority of the state can be held a nuisance.
Such finding is in direct conflict with section 57-104, R. C. M. 1947, providing: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. ’ ’
This is also the general law.
“As a general proposition, it may be stated that the properly doing of that which the law itself expressly or by necessary implication authorizes is not a nuisance, although it be the doing of that which, but for the justification of the law’s authority, would be so. The courts will not construe that to be a crime punishable under one statute which was done in the exercise of *150powers specifically granted by another statute.” 46 C. J., Nuisances, sec. 40, p. 672.
“The legislative authority is,a complete protection against accountability for a public nuisance from the mere doing of the act, and exempts the person doing it from civil and criminal liability therefor at the suit of the state.” 39 Am. Jur., Nuisances, sec. 204, p. 480.
It cannot be presumed that the state, after taking the license money from fraternal, religious, charitable and nonprofit organizations and issuing a license therefor, from which a portion of the state’s revenue comes, intended that such organizations be found guilty of a crime or nuisance, their property seized and their places of business closed, because of the doing of the licensed act.
“Furthermore, on the ground that it cannot be presumed that the state intends to punish criminally any act which is licensed by its authority, and which it makes a source of a portion of its revenue, it is well settled that where a license tax is imposed on a particular form of gaming, a gambling device, or a gambling house, one who pays the tax cannot be prosecuted for gaming for doing that which is contemplated by the license * * *” 24 Am. Jur., Gaming and Prize Contests, sec. 10, pp. 404-405.
The 1945 legislative assembly was faced by the illegal slot machine situation, now grown to such proportions that national governmental action has resulted in many states. To eliminate the worse evils, the legislature legalized such machines in fraternal, religious, charitable and nonprofit organizations. Money which otherwise would have left the state remained here to be put to beneficial uses. Some of it to become substantial state revenue, the state collecting during the first six months of 1950, the sum of $498,800 from the sale of slot machine licenses.
The Act, Chapter 142, Session Laws of Montana 1945, legalizing such machines is a valid, workable, subsisting law. It does not provide merely for the payment of license fees and issuance of licenses. It is not a mere licensing statute, not be*151cause there were not legal slot machines to license when the law was enacted, but because it authorizes and sets up the entire machinery for legalizing and licensing the operation of such machines.
The title of the Act calls attention to .the fact that the Act is “Repealing All Acts and Parts of Acts in Conflict Herewith.” The Act, in part, permits cities and counties to levy a tax on such machines. It provides a different penalty for illegal possession of such machines than existed before such enactment. It provides: “Religious organizations, fraternal organizations, charitable, or nonprofit organizations, before using, operating, keeping and maintaining for use, slot machines, must first procure the license and pay the license fee provided by this act. ’ ’ Sec. 3. Also, that “Any * * * organization which has not been issued a license under this act and which maintains for use or permits the use of any slot machine * * * shall be guilty of a misdemeanor;” sec. 10, that “no slot machine shall hereafter be used, operated, kept or maintained for use or operation within the State of Montana by any person or persons whomsoever save and except as in this act provided,” sec. 1, and “all acts or parts of acts in conflict herewith are hereby repealed.” Sec. 11.
A reasonable person, after reading this law can only come to the conclusion that the 1945 legislative assembly expressly, and to say the least, by clear and unquestionable implication, authorized the named organizations to possess, own and operate slot machines upon which the license fees were paid and licenses issued therefor.
“Legislative authority of a character to justify conduct that in the judicial view would constitute a nuisance must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury.” 39 Am. Jur., Nuisances, sec. 206, p. 483.
Since the defendant organization possessed and operated slot *152machines upon which the license fees were paid and for which licenses were issued under a valid law permitting and authorizing the same, it cannot now be guilty of a nuisance in possessing and operating such machines.