Continental Industries, Inc. v. Erbe

• Decision Date: 11 January 1961
• Docket Number: No. 50121,50121
• Citation: 107 N.W.2d 57,252 Iowa 690
• Parties: CONTINENTAL INDUSTRIES, INC., Capital Vendors, Inc., John Stamatelos, d/b/a West Des Moines Music, Appellees, v. Norman A. ERBE, Attorney General of Iowa, The City of Des Moines, Iowa, Howard Eide, Chief of Police of the City of Des Moines, Iowa, Wilbur Hildreth, Sheriff of Polk County, Iowa, Ray Hanrahan, County Attorney of Polk County, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 57

107 N.W.2d 57

252 Iowa 690

CONTINENTAL INDUSTRIES, INC., Capital Vendors, Inc., John Stamatelos, d/b/a West Des Moines Music, Appellees, v.Norman A. ERBE, Attorney General of Iowa, The City of Des Moines, Iowa, Howard Eide, Chief of Police of the City of Des Moines, Iowa, Wilbur Hildreth, Sheriff of Polk County, Iowa, Ray Hanrahan, CountyAttorney of Polk County, Iowa, Appellants.

No. 50121.

Supreme Court of Iowa.

Jan. 11, 1961.

Norman A. Erbe, Atty. Gen., Gary S. Gill, Special Asst. Atty. Gen., for appellants.

Gibson, Stewart & Garrett, Des Moines, Swisher, Cohrt, Swisher & Finch, Waterloo, for appellees.

HAYS, Justice.

This appeal involves the interpretation to be given to Section 98.36(6), Code of 1958, I.C.A., and particularly to the words 'vending machine', as they are used therein.The section reads as follows: 'It shall be unlawful to sell or vend cigarettes by means of a device known as a vending machine.'

Plaintiffs, makers, distributors and owners of certain types of machines by which cigarettes are dispensed to the public, brought this action in equity seeking to enjoin the defendants, various law enforcement agencies, from interfering with the use of such machines in Iowa.A temporary injunction, later made permanent, was issued by the trial court and defendants appeal.

The record discloses two types of machines are involved and are known in this record as Exhibit I and IA, and Exhibit 2 and 2A.Exhibit I is a cabinet, containing sections for numerous brands of cigarettes, which acts also as a display case and stands on the floor of the store or place of business where installed.It also contains electric motors, a coin slot for the deposit of the purchase price of a package of cigarettes; numerous buttons, the pushing of one of which will release a particular brand of cigarettes into a receptacle and from which the purchaser takes them.IA, called a remote control, consists of a push button and a light which are connected by wires with electrical equipment in Exhibit I.This unit is installed behind the counter of the business establishment or at some place not generally accessible to others than the business proprietor or his employees.In order for the machine to function and make cigarettes available to a would-be purchaser the following procedure is required: The purchaser deposits the price of a package of cigarettes in the coin slot on Exhibit I.This lights the light on the remote control unit, Exhibit IA.The proprietor or his employee presses the button on such control unit which lights a light on the cabinet Exhibit I and activates the same.The purchaser by then pressing a button releases the desired brand into the receptacle from which he may take it.

The machine contains complicated mechanism which could not be readily changed or altered by one not trained in its construction, and is locked and inaccessible to the public.While it is urged that by taping down the push button Exhibit IA, the machine would be constantly activated and would make the contents thereof available without any operation of Exhibit IA, the record, and a demonstration before this court, dispells this contention.It clearly appears that each sale of a package of cigarettes is a separate transaction, requiring the following of the exact procedure above set forth.If the button on Exhibit IA was taped down, a coin placed in the slot on Exhibit I would merely fall into a return slot for return to the purchaser and would not make an electrical contact.

Exhibit 2 and 2A is, in effect, identical in operation with Exhibit I and IA, except that the purchaser using this machine will pull a lever, rather than push a button, for the release of the desired brand of cigarettes.Otherwise, the exact procedure is required in the operation of Exhibit 2 and 2A as is required in the operation of Exhibit I and IA.

As before stated, the decision herein must depend upon the meaning to be given to the words 'vending machine' as used in the statute.Words and phrases must be construed according to the context and approved usage of the language, Section 4.1(2),Code 1958, I.C.A. but in ascertaining the meaning thereof, we must look also to the context in order to give force and effect to the legislative intent, as embodied therein.Chapter 98,Code 1958, I.C.A. deals with the sale of cigarettes and tobacco in this state.While cigarettes may be lawfully sold, they are deemed to be a commodity requiring specific regulations for the handling thereof.Under statutory regulations, only licensed dealers or permit holders may dispense them and they are required to be bonded.Section 98.2,Code 1958, as amended, I.C.A., provides: 'No person shall furnish to any minor under eighteen years of age by gift, sale or otherwise, any cigarette * * *.'As this section is the only one which specifically limits the sale of cigarettes, and Section 98.36(6) limits only the manner in which they may be sold, we think it is clear that the legislature in enacting Section 98.36(6) had in mind the prohibition against sale to minors and by the use of the words 'vending machine', attributed to them their usual and ordinary meaning.

Machine selling or vending of merchandise is not in itself illegal.In the ordinary type of machine selling, the machine receives the money from the purchaser and holds it for the seller, automatically measures the product and automatically delivers it to the purchaser.The sale is effected by a slot which receives the coin of the buyer, by gravity takes it out of control of the buyer, and by gravity puts it in control of the seller, and at the same time releases the bargained amount of the product and delivers it to the buyer.McCaughn v. American Meter Co., 3 Cir., 67 F.2d 148.The entire transaction is effected by mechanism, automatically, and without any working human agency.79 C.J.S. Sellp. 1035.It is clearly apparent that vending or selling cigarettes by use of such machines, if permitted, would nullify the provisions of Section 98.2, as the automatic vendor must sell to any and all who insert coins.It has no power of discrimination.

Such, however, is not the type of machine involved herein.True, it ultimately sells or vends the cigarettes to the buyer, in that he deposits the coin in the machine and removes the cigarettes therefrom, but such removal is possible, not automatically, but only by the intervention of the proprietor in operating the remote control unit.

Chapter 98,Code 1958, I.C.A., while authorizing the sale of cigarettes, prohibits the sale thereof to minors, and places the responsibility against such sales upon the licensee or permit holder.It is his duty to refuse a sale to a minor by refusing to hand them across the counter to a minor.Under the types of machines in question, his opportunity to ascertain the age of any wouldbe purchaser, and his duty to reject such a sale, if the buyer be a minor, is in no way altered.Section 98.2,Code 1958, I.C.A., is just as meaningful and enforceable when sale is made by the use of machines such as are here in question, as if made by a direct hand to hand sale by the permit holder.We think the legislature by using the term 'vending machine' clearly referred to the wholly automatic type of machine and that the machines in question do not violate either the letter or the intent of Section 98.36(6).The same effect, seePressley v. City of Chicago, 26 Ill.App.2d 283, 168 N.E.2d 41.

It is contended that the cabinet Exhibit I and the remote control unit Exhibit IA, likewise Exhibits 2 and 2A, may be so removed from each other as to prevent the proprietor from determining the age of the would-be buyer and therefore are illegal.Such a situation is possible, just as it is possible for the permittee to make a hand to hand sale without regard to who is the purchaser.However, the possibility that Section 98.36(6) may be ignored does not, per se make the sale of cigarettes illegal, whether the sale be by machine or hand to hand.Furthermore, the trial court foresaw such a possibility and made suitable provision therefore in its...