Crippen v. Mint Sales Co.

• Decision Date: 20 April 1925
• Docket Number: 24715
• Citation: 139 Miss. 87,103 So. 503
• Court: Mississippi Supreme Court
• Parties: CRIPPEN, SHERIFF, v. MINT SALES CO. [*]

103 So. 503

139 Miss. 87

CRIPPEN, SHERIFF, v. MINT SALES CO. ^[*]

No. 24715

Supreme Court of Mississippi

April 20, 1925

APPEAL from chancery court of Leflore county, HON. C. L. LOMAX Chancellor.

Suit for injunction by the Mint Sales Company against E. H Crippen, Sheriff. Decree for complainant, and defendant appeals. Reversed, and bill dismissed.

Decree reversed and bill dismissed.

H. M Bryan, Assistant Attorney-General, for appellant.

Appellee relies upon chapter 339 of the Laws of 1924, to sustain the legality of the particular machine here under review. It will be noted that by chapter 239 of the Laws of 1922, the legislature repealed outright section 3786 of the Code of 1906 (Hemingway's Code, sec. 6486), as well as "all laws and parts of laws in conflict" therewith. It is our contention that the language, "slot machine, or similar devices," condemned by chapter 339, Laws of 1924 includes the kind of machine described in the record in this case.

The proviso in the act to the effect that its penal provisions shall not apply to "automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine" is applicable and applicable alone to the things specifically comprehended under the term "vending machines." If the machine of appellee is a vending machine and nothing more, clearly it has been legalized. However, if the vending machine has as adjuncts thereto any feature or features that would convert it into a game of chance, then it is a gambling device regardless of its name.

We think that the question of whether or not this particular machine is a gambling device does not depend upon what it will do on a single operation of the machine, but that if it encourages one to continue to play it with the possibility of receiving more or less in value than he began with, it has been converted into a game of chance and is gambling outright. As such, the legislature did not expressly or by implication legalize its operation.

It is our contention that the use of the machine here under review violates chapter 339 of the Laws of 1924, as aforesaid, as well as our general gambling statutes, particularly section 933, Hemingway's Code. Further, we contend that such machine violates section 98 of the constitution which forbids lotteries, etc.

Further we contend that as gambling devices, law enforcement officers are expressly authorized to seize them and to destroy them, under section 939 of Hemingway's Code. A lottery has been variously defined by courts of last record and possibly, while associate counsel will brief this phase of the question for the court, we do desire to submit the following authorities, showing that slot machines involving hazard or chance have been definded as lotteries. Prendergast v. State, 57 S.W. 850, and City of New Orleans v. Collins, 27 So. 532; Bouvier's Law Dictionary, 3d Revision.

Therefore, even if under any construction chapter 339 of the Laws of 1924, could be held to sanction the operation of such machine, the legislature would be without power to enact it in the face of the specific constitutional prohibition. See the following recent cases: Pure Mint Company v. Labarre et al. (N. J.), 125 A. 105; Tonahill v. Molony, Supt. of Police, 101 So. 130.

In State v. Johnson (Okla.), 177 P. 926, it was directly held that such machines were gambling devices, citing and relying upon the cases of Ferguson v. State, 176 Ind. 568, 99 N.E. 806, 42 L. R. A. (N. S.) 720, Ann. Cas. 1915 C. 172; McTeer v. State, 129 Tenn. 536, 167 S.W. 121; State v. Googan, 117 Me. 102, A. 920, and Allen v. Commonwealth, 178 Ky. 250, 198 S.W. 896. To the same effect was the decision in the Commonwealth v. Critten (Ky.), 202 S.W. 884, and in the last case of Zaft et al. v. Milton (N. J.), 126 A. 29; Griste v. Burch (So. Carolina), 99 S.E. 703.

In the case at bar, appellee sought the aid of a court of conscience to restrain a law enforcement officer from proceeding to interfere with the operation of a machine which many courts of last resort have held to be gambling devices. It ill behooves one to come into a court of conscience and there ask for a remedial writ to restrain an officer from interfering with gambling.

The machine in question thus being clearly a gambling device in fact, and operated in this state contrary to our constitution and law, the learned lower court erred in making the injunction perpetual and we respectfully ask that a decree be entered here dissolving the same.

Means Johnston, also for appellant.

OPERATION OF SLOT MACHINES AS GAMBLING DEVICES WHICH INDICATED IN ADVANCE WHAT THE PURCHASER IS TO RECEIVE AND WHERE PLAYER IS NOT SUBJECT TO LOSS. The supreme court of Indiana, in Ferguson v. State, 42 L. R. A. (N. S.) 720, 99 N.E. 806, held that a slot machine, which delivered an article of merchandise worth the coin deposited, and sometimes, in addition thereto trade checks, and which machine indicated in advance to the purchaser on each operation of the machine, what he is to receive--is a gambling device, and prohibited by the statutes of that state. See to same effect Welch v. Kentucky, 200 S.W. 371; State v. McTeer, 129 Tenn. 535, 167 S.W. 121.

The contention was made in that case, as here, that it was not a gambling device, because the indicator always showed what the player was to get before he deposited his nickle, and for that reason there could have been no element of uncertainty or chance in playing the machine. In rejecting this contention the court declared that while upon depositing the first nickle, the player might know exactly what he was to receive from the machine in return, yet the indicator at the end of the play might show that the next nickle deposited, instead of drawing only a package of gum, might draw in addition a package of gum and one dollar's worth in checks. In this connection it is in the opinion said: "The lure is the opportunity of winning from ten to one hundred cents by the deposit and expenditure of five cents. There must at least be one play before any of the numbers mentioned are shown on the indicator, and there may be many, and it is not known which number will appear, nor at what time, nor after how many plays . . . However, there is always a chance that any single player, by the expenditure of ten cents through making two plays of five cents each, may obtain not only a package of gum worth five cents, but checks from ten cents to one hundred cents. In People ex rel. Verchereau v. Jennings, 153 A.D. 512, 138, N.Y.S. 449, the same conclusion was reached, the slot machine being the same that we have in the instant case. See, too, Moberly v. Deskin, 169 Mo.App. 677, 155 S.W. 842; Cullian (Supp.) 114 A.D. 654, 99 N.Y.S. 1097; Cagle v. State, 93 So. 206; Pure Mint Co. v. Labarre et al., 125, A. 105, (New Jersey); Tonahill v. Molony, 101 So. 130; Griste v. Burch, 99 S.E. 703; State v. Googin, 117 Maine, 102, 102 A. 970.

I have confined myself to the citation only of that class of cases, in support of my contention that the machine in question belonging to appellee and operated by the said Dave Smith, was a gambling device to those certain cases of like kind and description, wherein the player was not subjected to loss, and wherein the player sometimes stood a chance of securing additional trade checks good for merchandise, and wherein the machine indicated in advance to the purchaser or operator thereof what he was to receive on each operation of the machine.

I only found one decision, wherein the court, in passing upon a machine of like kind and description held that it was not a gambling device, and took issue with the universal sound reasoning of all of the other courts of last resort; this case was Byke v. Enright, Police Commissioner, 203 N.Y.S. 296, which was a lower court of record, and which decision conflicts with the reasoning in People ex rel. Verchereau v. Jennings, 153 A.D. 512, supra, and all of the other courts of last resort. A large number of decisions have condemned similar slot machines and devices, wherein the player always received an article of merchandise of a certain value, and sometimes, in addition trade checks. Land v. Merwin, 99 Maine, 486, 39 A. 1021, 105 A. S. R. 293; Myer v. State, 112 Ga. 20, 37 S.E. 96, 81 A. S. R. 17, 51 L. R. A. 496; Lytle v. State (Texas), 100 S.W. 1160; State v. Vasquez (Florida), 38 So. 830.

II.

It is contended by appellee that his machine was expressly legalized by chapter 339 of the Laws of 1924, and the lower court so held, and that prior to the enactment of chapter 339 of the Laws of 1924, he would have no standing in this court, and that his machine would be classed as a gambling machine, therefore the decisions that I have cited for the consideration of this court do not apply, because they are based on general and special legislation condemning gaming devices.

I submit to the court, the following proposition: That legislation and policies of long standing, for the preservation of the morals of its citizens should not be overturned:--

(1) By a doubtful interpretation.

(2) Must not be overturned except by clear and unambiguous language.

(3) It must clearly appear that the statute under consideration is clearly repugnant to the act, and that both cannot be given effect.

(4) That any statute passed in derogation of the long established policy of the state for the preservation of its morals, must be strictly construed.

(5) That the court will never presume that the legislature intended to repeal legislation of long standing for the preservation of the morals of its citizens.

(6) That if said chapter is susceptible of two constructions, one in favor of the policy of long standing, and the other against it, it is the duty of the...