Cossack v. City of Los Angeles

• Decision Date: 21 June 1974
• Court: California Supreme Court
• Parties: , 523 P.2d 260 Roger COSSACK et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants. L.A. 30233. In Bank

Page 460

114 Cal.Rptr. 460

11 Cal.3d 726, 523 P.2d 260

Roger COSSACK et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

L.A. 30233.

Supreme Court of California,

In Bank.

June 21, 1974.

Roger Arnebergh and Burt Pines, City Attys., George J. Franscell and John T. Neville, Asst. City Attys., W. T. Maskey, Burk M. Weidner, Deputy City Attys., and Edward M. Davis, for defendants and appellants.

Warren I. Wolfe, Los Angeles, for plaintiffs and respondents.

Ball, Hunt, Hart, Brown & Baerwitz, Edmund G. Brown, John R. McDonough, Beverly Hills, Louis Lawson, Los Angeles, and Rufus King, Washington, D.C., as amici curiae for plaintiffs and respondents.

McCOMB, Justice.

Defendants appeal from a judgment in favor of plaintiffs in an action in which plaintiffs alleged that section 43.05.1 of the Los Angeles Municipal Code is unconstitutional and void and asked for a judgment so declaring and enjoining defendants from enforcing it. ¹

Facts: In 1939, the voters of the City of Los Angeles approved, by initiative measure, the legislation which is the subject of this action. ² Upon approval thereof by the voters, the city adopted the measure by ordinance; and it was placed in the Los Angeles Municipal Code as section 43.05.1 under article 3, which is entitled 'Gambling, Fraud and Deceit.' The measure is still in full force and effect, not having been amended or repealed.

Plaintiffs desire to place, or to have place, in operation in certain business locations coin-operated amusement games, which technically meet the definition of 'pin game' contained in section 43.05.1 of the Los Angeles Municipal Code, but which were shown by the uncontradicted evidence to be predominantly games of skill.

The trial court made detailed findings with respect to the type of machines proposed to be placed in operation. ³ It then found, supported by substantial evidence as follows: '19. That for the two decades prior to 1948, the pin ball games or machines, pin games, marble games, and horse race machines then in existence, as described in the Pin Ball Ordinance, were all devices or games predominantly of chance.

'20. In 1948, 'flippers' were developed and incorporated in pin ball games and machines. Since then, with the addition of flippers, the games became known as flipper games and were then and still are games predominantly of skill.'

In its conclusions of law, the trial court determined that both subdivision 1 and subdivision 2 of paragraph B of section 43.05.1 of the Los Angeles Municipal Code pertain on their faces, and are applied, to games predominantly of chance and that both subdivisions are void under article XI, section 7, of the California Constitution. ⁴

The trial court also concluded that flipper games and other skill games (as described in finding 16) are capable of being licensed and permitted in the City of Los Angeles under section 21.63 of the Los Angeles Municipal Code (pertaining to 'amusement machines'), under section 103.101 of the Los Angeles Municipal Code (pertaining to 'arcades'), and under section 103.116 of the Los Angeles Municipal Code (pertaining to 'games of skill and science').

In further conclusions of law, the trial court determined that section 43.05.1 of the Los Angeles Municipal Code is unconstitutional on specified additional grounds, including the ground of a denial of the equal protection of the laws, pointing out that the section establishes an invidious discrimination between flipper games and (a) other skill games and (b) other recreational and sporting activities which are predominantly of skill.

Judgment was entered declaring section 43.05.1 of the Los Angeles Municipal Code unconstitutional and void and enjoining defendants from enforcing it, directly or indirectly.

Question: Did the trial court properly determine that both subdivision 1 and subdivision 2 of paragraph B of section 43.05.1 of the Los Angeles Municipal Code pertain to games of chance and hence have been preempted by state law?

Yes. Subdivision 2 of paragraph B of section 43.05.1 of the Los Angeles Municipal Code clearly prohibits the possession of any 'mechanical device . . . for the playing of any game of chance'; and the parties stipulated that that subdivision is void because it occupies a field pre-empted by state law. (See In re Lane, 58 Cal.2d 99, 102--103, 22 Cal.Rptr. 857, 372 P.2d 897.)

In the legislation in which the Legislature pre-empted the field respecting gambling machines or devices, it specifically provided that amusement machines or devices which are predominantly games of skill were not included ⁵; and it was stipulated by the parties hereto that the State has not pre-empted the field of coin-operated games of skill. (Cf. In re Hubbard, 62 Cal.2d 119, 125(4), 41 Cal.Rptr. 393, 396 P.2d 809.)

Under the circumstances, if the machines here in question are games predominantly of chance, they are clearly prohibited under the legislation adopted by the State. If they are games predominantly of skill, they are not prohibited by the state legislation and hence could legally be placed in operation and used, as desired, unless they are validly prohibited by subdivision 1 of paragraph B of section 43.05.1 of the Los Angeles Municipal Code.

Whether a game is a game of skill or a game of chance depends upon which factor predominates, and this is a fact question for the trial court. (Knowles v. O'Connor, 266 Cal.App.2d 31, 33, 71 Cal.Rptr. 879; People v. Mason, 261 Cal.App.2d 348, 354, 68 Cal.Rptr. 17.) In the present case, the trial court found, supported by substantial evidence, that the games in question are games predominantly of skill. In addition, the Attorney General has indicated that although pinball machines which are predominantly games of chance are prohibited by section 330b of the Penal Code, pinball machines equipped with flippers, permitting manipulation of the ball by the player, are predominantly games of skill. (37 Ops.Cal.Atty.Gen., 126, 129--130.)

Subdivision 1 of paragraph B of section 43.05.1 of the Los Angeles Muncipal Code, it will be noted, refers to the games defined in detail in paragraph A and does not designate them 'games of chance.' However, as stated in People v. Superior Court, 70 Cal.2d 123, 132(7), 74 Cal.Rptr. 294, 301, 449 P.2d 230, 237: "The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' (Citations.) Statutes should be construed so as to be given a reasonable result consistent with the legislative purpose.' (See also Select Base Materials v. Board of Equal., 51 Cal.2d 640, 645, 335 P.2d 672.) Similarly, it was said in Alford v. Pierno, 27 Cal.App.3d 682, 688(6), 104 Cal.Rptr. 110, 114, 'The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.' It was further said in Alford, 'The apparent purpose of a statute will not be sacrificed to a literal construction.' (P. 688(7), 104 Cal.Rptr. p. 114.)

As hereinabove pointed out, the enactment was placed in the municipal code under article 3, which is entitled, 'Gambling, Fraud and Deceit.' That article prohibits various forms of gambling, such as chain letter schemes, gambling with dice or cards, playing billiards or pool for money or things of value, using telegraph or telephone lines for bookmaking, and lotteries. And the licensing of skill games is specifically authorized under other parts of the municipal code.

More significantly, it is clear that at the time the ordinance was adopted all the games referred to therein were purely games of chance. Prohibiting machines or devices for playing pin ball or marble games of Skill could not have been the objective of the electorate, since they did not come into existence until almost 10 years later.

The trial court in its memorandum of opinion aptly stated: '(N)owhere in subdivision 1 of paragraph B of the Pin Ball Ordinance is there any mention whatever made of gambling, hazard or chance. This poses the question as to what was the legislative intent in placing both subdivisions, 1 and 2, in paragraph B of the Pin Ball Ordinance?

'The answer to this question lies in recalling the time when this ordinance was enacted--1939. At that time the flippertype of machines and all of the other kinds of machines affording the player substantial control over the play thereof were not yet in existence. All of the various pin games, marble games, and slot machines then in use operated purely on the basis of chance, and since this means gambling, obviously it was the intention of the electorate to prohibit this form of gambling. For this reason the ordinance undertook first, to describe and define in paragraph A all of the various types of games, such as 'Pin Games,' 'Marble Games,' games similar to marble games, such as 'Bally-Alley,' 'Claw, Hook and Grab Machines,' and 'Horse Racing Machines,' and then second, to prohibit them in subdivision 1 of paragraph B. Then, out of an abundance of caution and upon the premise that there may be some other mechanical devices or machines used for gambling, and whose names they did not know, subdivision 2 was added as a 'catch-all' so as to include within its broad prohibition any other games of 'chance."

Accordingly, we hold that subdivision 1 of paragraph B of section 43.05.1 of the Los Angeles Municipal Code pertains only to games of chance and does not prohibit the games here in question.

In any event, however, even if it were concluded that subdivision 1 of paragraph B was intended to proscribe games of skill, and hence would prohibit the games of skill sought to be provided or used by plaintiffs, it would be unconstitutional, because it would violate the equal protection clauses of the Fourteenth Amendment to the United...