Clerk of Circuit Court for Calvert County v. Chesapeake Beach Park, Inc., 162

• Decision Date: 06 December 1968
• Docket Number: No. 162,162
• Citation: 248 A.2d 479,251 Md. 657
• Parties: . CHESAPEAKE BEACH PARK, INC. Court of Appeals of Maryland
• Court: Maryland Court of Appeals

Page 657

251 Md. 657

248 A.2d 479

CLERK OF the CIRCUIT COURT FOR CALVERT COUNTY v. CHESAPEAKE BEACH PARK, INC.

No. 162.

Court of Appeals of Maryland.

Dec. 6, 1968.

Thomas A. Garland and Donald Needle, Asst. Attys. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellant.

Ward B. Coe, Jr., Baltimore (Anderson, Coe & King, Baltimore, and David A. Harkness, Prince Frederick, on the brief), for appellee.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

HAMMOND, Chief Judge.

Slot machine entrepreneurs who desire to continue their business to the greatest possible extent brought an action in the Circuit Court for Calvert County for a declaratory judgment that it was not a violation of Ch. 617 of the Laws of 1963 (Code (1964 Supp.), Art. 27, § 264B), to possess and operate after July 1, 1968:

'a. A mechanical amusement device (commonly known as a one-arm bandit) which requires the insertion of a coin or token for its operation and which offers an award to the operator based in whole or in part upon chance, the award being a metal token which may, at the option of the operator, be inserted in the device for replay or may be redeemed at petitioner's place of business for merchandise.

b. An electrical amusement device (commonly known as a console device) which requires the insertion of a coin for its operation and which offers an award to the operator based in whole or in part on chance, said award being the registration upon the device of one or more free plays, which free plays may, in the option of the operator, be taken by playing the machine or may be redeemed at petitioner's place of business for merchandise.

c. A partly mechanical and partly electrical amusement device (commonly known as a pinball machine) which requires the insertion of a coin for its operation and which offers an award to the operator based in whole or in part upon chance or his skill, said award being the registration upon the device of one or more free plays which may, in the option of the operator, be taken by replaying the machine or may be redeemed at petitioner's place of business for merchandise,'

and a further declaration that each of the three devices is legal under § 181(a) of the Code of Public Local Laws of Calvert County (1963). They also sought mandamus to compel the Clerk of the Circuit Court to accept applications and issue licenses for these 'amusement devices.' The Circuit Court held that the one-arm bandit was a slot machine within the definition of Ch. 617 and, therefore, proscribed statewide and that neither the console nor the pinball machine was encompassed by the definition of a slot machine and each, therefore, could legally be licensed, possessed and operated in Calvert County. The Clerk appealed from the writ of mandamus directing him to license the console and the pinball machines. The slot machine entrepreneurs appealed from the court's denial of their right to a license for the one-arm bandit.

In 1962 Governor Tawes appointed a committee of seven, chaired by Richard W. Emory of the Baltimore Bar, to study and recommend procedures designed to do away with slot machines in Anne Arundel, Calvert, Charles and St. Mary's Counties 'with the least possible damage to the economy of these Counties.' The committee unanimously recommended complete abolition of slot machines, with four of its members adding individual recommendations aimed at softening the blow by a gradual phase-out and State inspired or provided financial replacements to the economy of the affected County, and phrased its recommendation to the Governor in January 1963 in part as follows:

'7. Procedures for Abolishing Slot Machines.

'Any abolition of slot machines requires repeal of the local laws applicable to Anne Arundel, Calvert, Charles and St. Mary's Counties legalizing cash pay-off machines. It also requires repeal or amendment of the General Laws permitting the licensing of 'free play' slot machines classified by the Federal government as gambling devices, and enactment of a State law at least as strong as the Federal Gambling Devices Act of 1962 prohibiting any machine, 'free play' or otherwise, which may be used as a gambling device. Unless the problem is attacked on a statewide basis, the 'free play' gambling devices will invade Southern Maryland and the slot machine business will continue there, but the four Counties will have been deprived of the approximate $1,600,000 in annual revenues which they now enjoy.

'Florida and New York have laws that prohibit the possession of any machine or device which, by reason of any element of chance or of other outcome of such operation unpredictable by the operator, the user may receive or become entitled to receive anything of value or otherwise or may secure additional chances or rights to use the machine. It will be noted that this is a very broad definition which prohibits the possession of even a 'free play' machine which the Federal government in the Gambling Devices Act of 1962 and in the revenue laws classifies as an amusement device.

'Whether Maryland adopts a law based upon Florida and New York law or upon Federal law, enactment must be followed by strict enforcement; otherwise nothing will have been accomplished but to deprive the four Southern Maryland Counties of the revenues which they receive.'

On February 18, 1963, the Speaker introduced House Bill 475, which eventually became Ch. 617 of the Laws of 1963. Its title read that it was to add § 264B of Art. 27 of the Code, Crimes and Punishments, under the sub-title 'Gaming,' to define the term 'slot machines,' to make it unlawful to possess or operate such machines except for a specified period in the four Southern Maryland Counties during which these machines were to be gradually decreased year by year and 'providing for the gradual and eventual total abolition by July 1, 1966, of all slot machines within this State.' The bill provided that:

'Any machine, apparatus or device is a slot machine within the provisions of this section if it is one that is adapted for use in such a way that, as a result of the insertion or deposit therein, or placing with another person of any piece of money, coin, token or other object, such machine, apparatus or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, coin, token or other object representative of and convertible into money, irrespective of whether the said machine, apparatus or device may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise or money or other tangible thing of value.'

On March 6 an amendment of the Committee on the Judiciary was adopted by the House, adding Sec. 2 to House Bill 475 to read as follows:

'And be it further enacted, That the intent of the Legislature in the enactment of the aforegoing Act is expressed as not intending to apply to the machine, apparatus or device commonly known or colloquially referred to, as 'Pinball Machine,' so long as said machine, apparatus or device does not permit any compensation, remuneration, recompense, reward, repayment or winnings beyond an automatic replay of a game or games mechanically provided upon said machine.'

This was the only amendment to the bill as introduced except changes in dates making the total abolition date July 1, 1968, instead of July 1, 1966, with appropriate changes in phase-out dates. The bill, which passed the House on March 18 and the Senate on March 26, contained the customary provision that all laws or parts of laws, public, general or public, local, inconsistent with the provisions of this Act are repealed to the extent of any such inconsistency.

The Circuit Court took the view that the one-arm bandit came within the definition of a slot machine because it is a machine:

'which delivers to the operator (in the cup into which the tokens would fall after a winning pull of the arm of the bandit) as a function of the machine itself either money, coins, tokens or any other tangible object which is representative of or convertible into money * * *.' (Emphasis added)

The Court then described the methods of operation of the console and pinball machines, saying that on each winners would become entitled to varying numbers of free plays 'Which register on the machine and may be used either to operate the machine again or may be taken off of the machine by someone representing the owner of the machine and a receipt for those plays given to the operator, which receipt may be convertible into further plays in the machine at another time or into a prize in the form of some tangible object, either merchandise or food or services offered by the establishment operating the machine,'

and held that console and pinball machines were permitted by the Calvert County law and not proscribed by Ch. 617 because:

'A slot machine within the definition of the phase-out law has to deliver some object to the operator which is convertible into money. These machines, as a function of the machines themselves, do not deliver anything to anybody.'

We do not agree for a number of reasons. If statutory language is fairly susceptible of more than one reasonable construction the interpreting court may seek assistance from established rules of construction. In Dept. of Tide. Fisheries v. Sollers, 201 Md. 603, 611, 95 A.2d 306, 309, Judge Delaplaine for the Court put it this way:

'It is important, however, to keep in mind that the meaning of the plainest language in a statute may be controlled by the context, and if the language is fairly susceptible of more than one construction, the Court may seek the legislative intention by considering the facts of contemporary history, the prior state of the law, and the particular evil, abuse or defect which the statute was...