Benjamin v. City of Columbus

Decision Date18 December 1957
Docket Number35180,Nos. 35179,s. 35179
Parties, 4 O.O.2d 113 BENJAMIN et al., Appellants, v. CITY OF COLUMBUS et al., Appellees. FERGUSON et al., Appellants, v. CITY OF COLUMBUS et al., Appellees.
CourtOhio Supreme Court

Syllabus by the Court

1. Where all the proposed uses of certain pin-game machines by their owners will necessarily violate the law as set forth in valid municipal ordinances, the petitions of such owners seeking equitable relief to protect those machines and seeking declaratory judgments setting forth their rights and duties with respect to them will be dismissed. (Paragraph four of the syllabus of Westerhaus v. City of Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318, approved and followed.)

2. The 'powers of local self-government' conferred upon municipalities by Section 3 of Article XVIII of the Constitution include the power to enact local legislation, except to the extent that limitations upon that legislative power have been set forth in the Constitution.

3. The words appearing in Section 3 of Article XVIII of the Constitution after the word 'self-government' represent not a grant of legislative power but a limitation upon the legislative power granted by the words up to and including the word 'self-government.'

4. A municipal ordinance enacted pursuant to the police power of the municipality cannot be considered invalid merely because it prohibits instead of regulates. (Frecker v. City of Dayton, 153 Ohio St. 14, 90 N.E.2d 851, distinguished.)

5. Although almost every exercise of the police power will necessarily either interfere with the enjoyment of liberty or the acquisition, possession and production of property, within the meaning of Section 1 of Article I of the Ohio Constitution, or involve an injury to a person within the meaning of Section 16 of Article I of that Constitution, or deprive a person of property within the meaning of Section 1 of Article XIV of the Amendments to the Constitution of the United States, an exercise of the police power having such an effect will be valid if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary.

6. Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.

7. Where an amusement device is so designed that it may readily be put to an unlawful use in gambling, a municipality may, in the exercise of its police power, prohibit the exhibition of such machine and need not postpone such action until such machine is unalwfully used. (Myers v. City of Cincinnati, 128 Ohio St. 235, 190 N.E. 569, followed.)

8. A machine or other device is not a game within the ordinary meaning of the word 'game' if it does not enable someone to determine whether he has, by his efforts in playing it, either made some score or achieved or not achieved some other objective.

9. A municipality may be ordinance make it a misdemeanor to possess within the municipality any pin game, the operation, use or play of which is controlled by placing therein any coin, although operation of such machine will not give a player any prize even by way of free plays or anything in return for his payment other than amusement in playing such game.

10. The provisions of the state and federal Constitutions, inhibiting laws impairing the obligation of contract, cannot affect the police power.

11. If the police power of a municipality includes the power to make possession within the municipality of a certain kind of property unlawful, the exercise of that police power to make such possession unlawful will not be impaired by the fact that owners of such property have theretofore made binding contracts relative to its use within the municipality.

These two actions for declaratory judgment and injunction were heard together by the Common Pleas Court of Franklin County, 136 N.E.2d 641, under a stipulation that any evidence competent in one case should be competent in the other, and that the validity of three ordinances of the city of Columbus should be treated as being involved in each case. The plaintiffs in both cases, herein referred to as plaintiffs, have for varying numbers of years owned and operated in Columbus varying numbers of pin-game machines having very substantial values.

The three ordinances, the validity of which are questioned and which are now incorporated in the Code of the City of Columbus, are ordinance No. 156-53, relative to licensing of mechanical amusement devices but containing some provisions relative to seizure of machines tending to encourage gambling, ordinance No. 157-53, relative to gambling but containing some provisions declaring as a nuisance the exhibition for the purpose of operation of machines merely tending to encourage gambling and authorizing their seizure, and ordinance No. 1615-54 which reads so far as pertinent:

'Section 29.69-1. * * * Whoever shall within the city have in his possession, or in his custody or under his control any table game or device commonly known as a 'pin game,' 'pin-ball game,' or 'marble game,' the operation, use or play of which is controlled by placing therein any coin, plate, disk, plug, key or other token, or by the payment of a fee, shall be guilty of a misdemeanor * * *.'

In the preamble to the ordinance enacting that section of the Code of the City of Columbus it is stated in part:

'Whereas, the operation of pin-ball machines and similar machines involving chance or skill or reward encourages gaming and the general disorder incident thereto, and is a threat or menace to the peace and morals of the community; and,

'Whereas, even the so-called amusement-only pin-ball machines are so constructed as to be almost identical in appearance and operation to certain gambling devices, per se; and

'Whereas, even the vast majority of such so-called amusement-only devices are readily convertible to gambling devices; and,

'Whereas, the operation of even amusement-only pin-ball machines has become and now constitutes a nuisance in that it encourages a false sense of values, idling, and loitering * * *.'

This latter ordinance was enacted in December 1954, immediately after the Court of Appeals in Ferguson v. City of Columbus, Ohio App., 128 N.E.2d 198, had cast doubt upon the effectiveness of the two earlier ordinances in discouraging the ownership or exhibition of machines which, although not gambling devices per se or shown to have been used for gambling, either tended to encourage gambling, were adapted for gambling, might readily be converted to be so adapted or registered odds or a score.

The Common Pleas Court determined that all these ordinances are 'invalid, unconstitutional and void, insofar as they prohibit the ownership, possession, custody, control and operation of pin games for amusement purposes only' and decreed that defendants should be enjoined from interfering under these ordinances 'with the ownership, possession, custody, control and operation of said pin games by * * * plaintiffs * * * as well as interfering with or molesting any merchant with whom said plaintiffs have either heretofore had, or may now or hereafter have, contracts for the operation of said games, so long as said games are not used for gambling.' Benjamin v. City of Columbus, Ohio Com. Pl., 136 N.E.2d 641.

On appeal to the Court of Appeals on questions of law and fact, that court determined that the three ordinances are valid and that plaintiffs were 'not entitled to an injunction restraining the enforcement of said ordinances' and dismissed the petitions.

These two causes are now before this court on appeal from the judgments of the Court of Appeals, both as appeals involving constitutional questions and pursuant to allowances of motions to certify the records.

McLeskey & McLeskey and Owen B. Sherwood, Columbus, for appellants.

Russell Leach, City Atty., and John C. Young, Columbus, for appellees.

TAFT, Judge.

In order to avoid the effect of this court's decision in Westerhaus & Co. v. City of Cincinnati, 165 Ohio St. 327, 135 N.E.2d 318, 320, plaintiffs have emphasized the fact that the machines involved in the instant cases are not equipped so as to provide for and are not to be used to provide free plays. However, besides deciding that free-play machines are gambling devices, we also decided in the Westerhaus case that, since the proposed use of the machines there involved would violate certain state statutes, a petition of the owner of the machines 'seeking equitable relief to protect such machines and seeking a declaratory judgment setting forth the rights and duties of such owner with respect to such machines, will be dismissed.' (Paragraph four of syllabus.) In the opinion 165 Ohio St. at page 335, 135 N.E.2d at page 325, it was pointed out that 'if * * * each of the * * * machines * * * is * * * a 'gambling device or machine,' then the' trial court 'would have been encouraging violations of' the law 'if it had given plaintiff any relief with regard to those machines, and its judgment in dismissing the petition must be affirmed.' If all the proposed uses by plaintiffs of the machines involved in the instant cases will necessarily violate the law, then their petitions, seeking equitable relief to protect those machines and seeking declaratory judgments setting forth their rights and duties with respect to such machines, should be dismissed. Even though the law violated may be set forth in municipal ordinances instead of in state statutes, the same principle must be applied.

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