City of Milwaukee v. Milwaukee Amusement, Inc.

• Decision Date: 07 January 1964
• Parties: CITY OF MILWAUKEE, a municipal corporation, Respondent, v. MILWAUKEE AMUSEMENT, INC., a domestic corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 625

125 N.W.2d 625

22 Wis.2d 240

CITY OF MILWAUKEE, a municipal corporation, Respondent, v. MILWAUKEE AMUSEMENT, INC., a domestic corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 7, 1964.

Dissenting Opinion Jan. 8, 1964.

Michael D. Preston, Milwaukee, for appellant.

John J. Fleming, City Atty., Maurice L. Markey, Harvey G. Odenbrett and Patrick J. Madden, Asst. City Attys., Milwaukee, for respondent.

CURRIE, Chief Justice.

These issues are presented by this appeal:

(1) Is the pinball machine herein involved a gambling device within the provisions of the ordinance?

(2) Is the ordinance invalid as going beyond the delegable power authorized by sec. 66.051, Stats.?

(3) Is the ordinance so broad in scope that it constitutes an unreasonable exercise of the police power in violation of the due process clause of the Fourteenth amendment to the United States constitution and sec. 1, art. I, Wisconsin constitution?

(4) Is the city estopped from bringing this action because of having licensed the instant pinball machine?

(5) Did the trial court commit prejudicial error in its rulings on evidence?

(6) Should a mistrial have been granted because of an incident which occurred during the course of trial?

(7) Were the costs improperly taxed?

Instant Pinball Machine as a Gambling Device Within Provisions of Ordinance.

The pertinent provision of the applicable ordinance, viz., sec. 107-5 of the Milwaukee Code of Ordinances, provides as follows:

'No person shall possess, keep, own, operate, use or cause to be kept, operated or used * * * any * * * pin games, * * * or other device of any kind or nature whatsoever, upon, in by or through which money is or may be staked or hazarded * * *, or upon the result of the action of such * * * money, chips, checks, credit prizes, merchandise, * * * or other valuable thing is or may be staked * * * won or lost; and such devices are prohibited in the city of Milwaukee and declared to be gambling devices.'

Whether the instant pinball machine constitutes a prohibited gambling device within the meaning of the ordinance is dependant on whether transfer to the succeeding game of the additional score, which has been won by chance on the preceding game, is a 'valuable thing.'

This court in the recent case of State v. Lake Geneva Lanes (1963), Wis., 125 N.W.2d 622, held that the award of a free game or replay as a result of a score obtained largely by chance on a pinball machine is something of value as a matter of law. This holding is in accord with State v. Jeske (1944), 245 Wis. 398, 14 N.W.2d 148. As pointed out in the Lake Geneva Lanes Case the courts of the country are divided on this issue. See, also, comment 'Gambling Today Via the 'Free Replay' Pinball Machine' by Robert J. Urban, 42 Marquette Law Review (1958) 98.

The rationale in support of holding that a free replay is a thing of value within the meaning of anti-gambling ordinances and statutes is well stated in Kraus v. Cleveland (1939), 135 Ohio St. 43, 46-47, 19 N.E.2d 159, 160-161 as follows:

'Amusement is a thing of value. Were it not so, it would not be commercialized. The less amusement one receives, the less value he receives, and the more amusement, the more value he receives. Whoever plays the device and obtains tokens therefrom receives more value for his nickel, with respect to the amount of amusement obtained, than the player who receives none at all. * * *

'The minimum amount of amusement offered in each play is that which is offered without any return of tokens. Whatever amusement is offered through the return of tokens is added amusement which a player has an uncertain chance of receiving. This added amount of amusement, the procurement of which is dependent wholly upon chance, is a thing of value * * *.

'Since amusement has value, and added amusement has additional value, and since it is subject to be procured by chance without the payment of additional consideration therefor, there is involved in the game three elements of gambling, namely, chance, price and a prize.' (Emphasis supplied.)

The foregoing was quoted with approval in the more recent case of Westerhaus v. Cincinnati (1956), 165 Ohio St., 327, 336, 135 N.E.2d 318. Other cases which hold that amusement provided by devices such as pinball machines is a thing of value, under an ordinance or statute worded similarly to the instant ordinance, are Worl v. State (Ind.1962), 183 N.E.2d 594, 597, and People v. Gravenhorst (1942), Sp.Sess. 32 N.Y.S.2d 760, 775. For other cases holding that free replays on pinball machines make them gambling devices, see Territory v. Uyehara (1957), 42 Haw. 184; Holliday v. Governor of State of South Carolina (1948), O.C.S.C. 78 F.Supp. 918; and Alexander v. Martin (1939), 192 S.C. 208, 6 S.E.2d 17.

Under the reasoning of the cited cases we are satisfied that it would be immaterial if, instead of taking the form of a replay given free for a high score obtained by chance, the award were to consist of giving extra balls or plays to be realized on inserting a further coin. For example, the instant machine provides the player with five balls for each dime inserted. If as a result of achieving a certain high score by chance the player were to receive two extra balls, or seven balls in all, by inserting another dime, it cearly would be a gambling device under an ordinance such as the one before us on this appeal. This is because the player receives more amusement for seven balls than he does for five, and amusement is a thing of value within the provisions of the ordinance. However, the instant machine, instead of providing extra balls free upon insertion of a further dime because of the high score received in playing the preceding game, provides a carry-over score which may be utilized by the player upon inserting another dime. Because the goal sought by the player in playing the machine is a high score, he receives more amusement for his second dime than would be the case if there was no score carried over from the prior game. In other words the transferable score achieves the identical purpose as would providing extra free balls for the second dime.

In Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N.W. 335, the alleged gambling device consisted of a machine with a slot into which the player inserted a five-cent piece. When the player pulled a lever a series of revolving discs was set in motion. When these discs ceased to revolve the machine indicated through an opening the number of checks worth five cents in trade which the player would receive if he played the machine again. At the end of each play the player by pulling another lever secured a package of mints. If the player failed to pull this second lever after placing the nickel in the slot, he forfeited his right to secure the mints upon that play. The checks secured by playing the machine could also be used to play the machine in place of nickels, but the machine was so constructed that the player secured no mints when he played the machine with these checks in place of the five-cent piece. The court in its opinion stated (192 Wis. at page 593, 213 N.W. at page 338):

'It is this chance of receiving something for nothing which appeals to the cupidity of human nature and to the gambling instinct possessed by human beings. The machine is so designed as to induce the player to deposit his coin for the purpose of ascertaining what he will receive in return for coins thereafter deposited. It is this element of chance involved in the second operation of the machine that is the soul of the transaction which attracts the player and makes the machine a gambling device.'

We deem this same reasoning is applicable to the instant machine. The player, who receives sufficient score to be entitled to a transfer of score to a second game, is induced to spend a further dime in order to realize the benefit of the carry-over score. Not only does this render the machine a gambling device within the meaning of the ordinance because the player deems this carry-over score to be a thing of value to him, but it emphasizes one of the evils sought to be combatted by such an ordinance. This evil is the inducing of feeding more money into the machine than would be the case if there were no carry-over score or other thing of value awarded. The more money which the player spends playing such device the less he will have to devote to the needs and welfare of himself or family.

The majority of the court conclude that the instant pinball machine is a gambling device which is prohibited by the ordinance.

Does Statute Exceed Delegated Power?

Defendant contends that the instant ordinance exceeds in scope the power delegated by the legislature under sec. 66.051, Stats., to regulate gambling and gambling devices. ¹ The asserted basis for this contention is that this statute is only applicable to gambling devices per se, and the instant pinball machine is not such device. This argument overlooks sub. (4) of the statute, which provides that nothing in the statute 'shall be construed to preclude cities and villages from prohibiting conduct which is the same or similar to that prohibited by chs. 941 to 947,' Stats.

Sec. 945.05, Stats. prohibits the dealing in gambling devices or machines and sec. 945.01(3), Stats., defines a gambling machine as follows:

'A gambling machine is a contrivance which for a consideration affords the player an opportunity to obtain something of value, the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine.'

For reasons previously stated herein the instant pinball machine does afford the player an opportunity to obtain something of value, the award of which is determined by chance. Therefore, the contention that Milwaukee in enacting the ordinance exceeded the power delegated to it by sec. 66.051, Stats., is without merit. ²

Constitutionality of Ordinance....