*1 (dissenting): organiza- given having the defendant Montana, The state of Laws Session tion, under op- right possess license and price paid, for rightfully, find the defendant cannot, machines, such slot erate operating organization possessing nuisance such machines. shall not be done. R. M. directs this
Section It done or maintained provides: which is nuisance.” be deemed a statute can Nuisances, sec. general J., This is law. 46 C. also the p. Jur., Nuisances, p. Respondent Appellants.
STATE, ENGLE, al., et No. 1950. Decided Davis, S'. Mr. Brown, Mr. Horace Norman Rockwood Mr. Bellingham, Billings, William H. all of for Mr. Hanson and argued S. Davis Horace appellants.
Mr. Olsen, Atty. Gen., Arnold H. Jones, B. Mr. Mr. Willis Philip O’Donnell, Attys. Holt, Gen., Mr. Harold L. Asst. Mr. B. Sande, Deputy Charles Attorney, Collins, E. E. County Attorney, Billings, respondent. argued for Mr. Sande *2 Marrón, County Glasgow,
Mr. Thomas R. Atty., Bert W. County Kronmiller, Atty., County Hardin, Allen, Mr. Nat. A. Atty., Ryegate, amici curiae.
PER CURIAM. Engle
Ross and John D. Gibb were convicted district court of county, Guy judge, Yellowstone Derry, Hon. district jury’s presiding, unlawfully possessing eight a verdict for coin-operated judg- slot machines, appeal and here from the ment of conviction. August 22, filed 1949, charges: information “That one Engle Gibb,
Ross and John D. late of the of Yellow- stone, day State of on or 20th August, about the D., 1949, county A. at the of Yellowstone and of Mon- State tana, Imple- committed the Gambling crime of Possession of ments, Misdemeanor, Engle a in that the said Ross and John Gibb, being, did, D. wilfully, then and there there, then and wrongfully unlawfully and have in their and under control, keep their did building and in a certain then and there management under control, commonly and and known as Avenue, the Silver Inn at 2902 Dollar located Minnesota Bil- lings, Montana, gambling implements, ma- to-wit: slot chines, contrary form, force and effect of the statute in against provided, dig- ease made and peace nity of the of Montana. says: “Any person The law who possession, has in his or control, permits placed, or or his who any room, space, or kept building, owned, enclosure leased * * or occupied by him, * slot machine # [*] [*] or under his punishable by management a fine of not control, less than dollars, nor than one thousand may one hundred more imprisoned for not less than months nor more than one three year court; in the provided, however, discretion of the that this apply public officer, person section shall not com to or to ing into in or reason of the thereof duty of an holding offiical same according to law.” R. C. M. sec. 94-2404. April 1, 1907,
On the above statute into went effect as law of this state and it has continued as the law Mon- since tana. Under this lawfully law no one may possess any ma- * * *
chine in this state public officer, other than “a per- son coming into thereof in or per- formance of duty an official the same to be dis- posed law.” R. C. M.
supra.
Defendants had in their and under their control they machines. not were nor do claim *3 public officers. did not come into of by the machines in or of an official duty. They were not disposed the machines “to be of jury to law. A found defendants of the of fense banned the 1947, law. R. C. M. sec. 94-2404. The pleadings and the ample evidence are to sustain both the ver judgment dict and of conviction herein. rely
Appellants upon 142, of the Session Laws of 1945, licensing Act, justify battery of their of machines, contending that such licensing Act ef- repeal fected a of existing the banning theretofore statutes the operation of all slot machines licensed the equalization. state board of keeping
The of slot machines is provisions banned the of 1947, R. C. M. 94-2401 sections as well as provisions other necessary of our Codes not to here consider. repealed by provisions These laws have not been the Chap of ter Laws of payment and the of a license fee to the
178 ma legalize outlawed equalization does not
state board of conducting', op running, justification for the nor is it chines any of these keeping possessing of erating, maintaining, Replogle Joy v. bandits. State ex rel one-armed banned Israel, 988; v. (2d) 124 Mont. Pac. Club, land (2d) 1003. Mont. Pac. urged no specifications We find no merit record. prejudicial error machines will cause the The clerk of this court trial to be returned the coins therein contained M. sections provided in R. C. of as is court Joyland Replogle v. 94-2412,and in State ex rel. 94-2411and Club, supra. issue forthwith. judgment affirmed and remittitur to
The (dissenting) : Chapter 142, Ses- Montana, under state of The necessary 1945, having Montana of received sion Laws of authorizing pos- fee, license permitting license issued a slot machines. session unlawful or machines cannot be of such slot 1947, sec. 57-104, R. C. M. nuisance since section
constitute a 1935, provides: which is done M. R. C. a statute can under the deemed a nuisance.” J., Nuisances, sec. general law. See C.
This is also the Nuisances, 204, p. Jur., p. 672, and 39 MARCK, STATE, Respondent, Appellant. No. 8953 8, 1950. Decided