Calcutt v. McGeachy

• Decision Date: 02 February 1938
• Docket Number: 673.
• Citation: 195 S.E. 49,213 N.C. 1
• Parties: CALCUTT v. McGEACHY, Sheriff of Cumberland County, et al.
• Court: North Carolina Supreme Court

195 S.E. 49

213 N.C. 1

CALCUTT v. McGEACHY, Sheriff of Cumberland County, et al.

No. 673.

Supreme Court of North Carolina

February 2, 1938

Appeal from Superior Court, Cumberland County; N. A. Sinclair Judge.

Action under the Uniform Declaratory Judgment Act by Joseph Calcutt trading as the Vending Machine Company, against N.H McGeachy, Sheriff of Cumberland County, and others, to determine the constitutionality of a statute prohibiting the manufacture, sale, possession, and use of gambling devices. From an adverse judgment, plaintiff appeals.

Affirmed.

Action under Uniform Declaratory Judgment Act of North Carolina chapter 102, P.L.1931, Code 1935, §§ 628 (a) to 628 (o), to determine constitutionality of chapter 196, Laws 1937, prohibiting "manufacture, sale, possession and use of slot machines, gambling apparatus and devices," for declaration of rights, status, and other legal relations thereunder, and for injunction.

Plaintiff alleges: That he is "engaged in the business of managing and selling to parties both in the State of North Carolina and in other states certain vending and amusement machines and devices * * * and has made and * * * is making, storing, keeping, possessing, selling, transporting (both within the state and from this state into other states) said machines and devices, and * * * is under contractual obligation to make and is prepared * * * to make such machines and devices"; that he has in his possession a number of machines and devices of twelve types "operated by slot, the sole function of which is to collect (in lieu of personal collection) the uniform and unvarying use charge, namely, charge made for use of the machine"; that, as to the first eleven types, "in their playing the operator or player may make varying scores or tallies; that the twelfth type involves no element of either skill or chance since the return in merchandise is invariably predictable and known in advance to the operator; and there is no chance to make varying scores or tallies"; that, claiming to act under the authority of chapter 196, P.L. of 1937, declaring the maintenance or keeping of all or any machines therein described to be a public nuisance, defendant McGeachy, sheriff, and McBryde, chief of police, have threatened to seize all such machines which may on or after July 1, 1937, be, remain, or come into the possession of plaintiff, to institute proceeding against plaintiff under C.S. §§ 3181 to 3187 for injunction, abatement, and other penalties therein set out, and to prosecute against plaintiff "both such civil and such criminal actions for and on account of the possession, maintenance, sale, transportation and the making of contracts and agreements with reference to the same as may be authorized by said" Laws of 1937. Defendants, sheriff and chief of police, admit that, acting in accordance with their oaths of office and with said laws, they are preparing to enforce the same as to such machines.

The court below found the following facts: "The plaintiff at the time this action was instituted, and at the time of the hearing of the same, had in his possession a large number of slot machines, devices and apparatus, which under the provisions of chapter 196, P.L.1937, it was unlawful to manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend, or give away, transport or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away or to permit operation of, and that for a long while the plaintiff has been engaged in the business in this State of making, storing, keeping, possessing, selling and transporting within and without the State such slot machines, apparatus and devices; that the plaintiff in the complaint filed herein admitted that he owned and had in his possession various types of slot machines, apparatus, and devices which are described in the complaint as consisting of twelve (12) types by reference to characteristics of said machines, devices and apparatus and the results achieved from the operation thereof; that no further description or designation of said slot machines was made in the complaint; and that at the hearing the plaintiff requested the Court to visit the plaintiff's factory and make a personal inspection of the various types of machines referred to in the complaint, which the Court declined to do, the Court finding as a fact that the characteristics and nature of said machines, apparatus and devices were sufficiently described in the complaint. It found as a fact that all of the slot machines of the plaintiff as thus described in the complaint, except Type No. 12, are expressly declared to be public nuisances and unlawful under the provisions of chapter 196 of the P.L. of 1937, if kept in violation of said act. It is further found as a fact that none of the defendants have threatened or intended to enforce the provisions of chapter 196, P.L. of 1937, against the plaintiff except as to machines, apparatus and devices which are declared illegal and the maintaining or keeping of which is declared to be a public nuisance by the provisions of said law."

The court concluded as a matter of law as follows:

"Upon consideration of the statute and the relation of the plaintiff thereto, and a further consideration of the evidence and admissions of plaintiff and defendants made upon the trial of this cause, the Court is of the opinion, and so declares, that chapter 196, P.L.1937, is constitutional and valid in all its parts, both per se and in its application to the matters complained of by the plaintiff, and that with the exceptions of the types of devices included within Type No. 12 of the complaint, the devices catalogued and named by the complaint may not be manufactured, sold, possessed or operated under the said law in this State; that the defendants have the right to enforce the said statute with respect thereto and under the authority of the said statute and other pertinent laws, prosecute the plaintiff and other persons manufacturing, selling, possessing or operating the said devices contrary to the said statute.

As described by its characteristics and results of operation, type of slot machine No. 12, as set up in the complaint, involves no element of skill or chance and invariably returns a definite piece of merchandise, the character of which is known in advance by the operator. As thus described in the complaint the defendants made no contention that said slot machine violated the provisions of chapter 196, P.L. of 1937; the particulars and exact nature of said machine was not set up in the complaint, but as thus described, ownership and operation of the same is not found to be illegal, and it is further found by the Court that no controversy whatever has existed between the parties hereto with respect to such type of machine, and that as to such machine no justifiable cause of action is presented to the Court."

From adverse judgment thereon, plaintiff appealed to the Supreme Court, and assigned error.

Malcolm McQueen, of Fayetteville, and Ehringhaus, Royall, Gosney & Smith, of Raleigh, for appellant.

A. A. F. Seawell, Atty. Gen., and Harry McMullan and T. W. Bruton, Asst. Attys. Gen., for appellees.

WINBORNE Justice.

While on this appeal the question of jurisdiction of the court under the Uniform Declaratory Judgment Act, Pub.Laws 1931, c. 102, Code 1935, § 628 (a) et seq., is not presented by the parties, it is proper to state that the action is maintainable only in so far as the legislative act, chapter 196 P.L.1937, affects the civil "rights, status and other relations" in the present actual controversy between parties. We consider it only in that aspect.

The court below has found as a fact without objection that the first eleven types of slot machines and devices described in the complaint are within the letter of the definition of "slot machines and devices" which are condemned by the act under consideration as public nuisances. In the playing of each of these types the operator may make varying scores and tallies upon the outcome of which wagers might be made. The defendants, sheriff and chief of police, admit their intention and preparation to seize such machines and devices. Therefore, the correctness of the ruling below, as to the rights, status, and other relations thereto is unchallenged, provided, of course, the act be constitutional.

The record then presents the determinative question: Is chapter 196, P.L.1937, entitled "An Act to Prohibit the Manufacture, Sale, Possession and Use of Slot Machines, Gambling Apparatus and Devices," constitutional? We agree with the affirmative holding below.

The title of the act manifests the intention and purpose of the Legislature to suppress and prohibit gambling. After prescribing the prohibitive provisions, the definition of slot machines and devices covered by the act is clearly set forth as follows: "Sec. 3. That any machine, apparatus or device is a slot machine or device within the provisions of this Act if it is one that is adapted, or may be readily converted into one that is adapted, for use in such a way that, as a result of the insertion of any piece of money or coin or other object, such machine or device is caused to operate or may be operated in such manner that the user may receive or become entitled to receive any piece of money credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, or which may be exchanged for any money, credit, allowance or any thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device; or in the playing of which the operator or user has a...