Dallmann v. Kluchesky

• Decision Date: 09 November 1938
• Citation: Dallmann v. Kluchesky, 229 Wis. 169, 282 N.W. 9 (Wis. 1938)
• Parties: DALLMANN v. KLUCHESKY.
• Court: Wisconsin Supreme Court

229 Wis. 169

282 N.W. 9

DALLMANN

v.KLUCHESKY.

Supreme Court of Wisconsin.

Nov. 9, 1938.

Appeal from a judgment of the Circuit Court for Milwaukee County; Arold F. Murphy, Judge.

Affirmed.

Action of replevin, begun January 6, 1938, in the civil court of Milwaukee county, by Leslie Dallmann against Joseph T. Kluchesky as chief of police of the city of Milwaukee, to recover possession of a coin-operated amusement machine.From a judgment in favor of the plaintiff, appeal was taken to the circuit court, and from a judgment of that court affirming the judgment of the civil court, the defendant appeals.

Two city ordinances provide in part as follows:

“Section 1068.It is hereby made the duty of every member of the police department to seize any table, wheel, instrument, device or thing kept for use, or used, for the purpose of gambling for money or other valuable thing, and all such tables, instruments, devices and things when so seized shall be destroyed. ***”

“Section 1069.No person shall possess, keep, own, operate, use or cause to be kept, operated or used in any room, tent, booth, shed, tavern, building, enclosure or upon any premises, or part thereof, or in any place within the city of Milwaukee any clock, joker, tape, slot machine, table or implement for any game of bagatelle or pigeon hole *** upon, in, by or through which money is *** or may be played or paid upon chance, or upon the result of the action of such *** slot machine *** or other device of any kind or nature whatsoever, money *** or other valuable thing is or may be staked, bet, hazarded, won or lost; and such devices are prohibited in the city of Milwaukee and declared to be gambling devices. ***

“This is an ordinance for the immediate preservation of public peace and safety, and is hereby declared a matter of urgency, being occasioned by the fact that various persons are establishing so-called vending machines, pin games, digger games, slot machines, rotary merchandisers, and other devices, in the city of Milwaukee, which by offering chances or hazards have a tendency to demoralize the youth of the city of Milwaukee.”

Leslie Dallmann owned a machine which he placed in a restaurant in the city of Milwaukee.The police warned the restaurant proprietor to remove it within twenty-four hours.When he failed to do so, the machine was seized and taken to police headquarters, where it remained until Dallmann commenced this action.

The machine is known as a Bally's Basketball Machine.Within a glass enclosure there is a miniature basketball court, with baskets at either end.When a nickel is inserted, five balls are released onto the playing floor, in which there are spring plungers which hurl the balls into the air.Two players operate the machine, each controlling a set of plungers, and the play continues until all five balls come to rest in the baskets.There is no pay-off device of any kind, nor is it possible to play more than one game with a single coin.The city attorney admits that there is no evidence whatever that the machine was used for gambling.

In the civil court a jury was called and the court submitted the question, “Is the machine in question a gambling device?”The jury answered, “No.”The court then ordered the defendant to return the machine to Dallmann.Upon appeal to the circuit court, this judgment was affirmed.

Walter J. Mattison, City Atty., and Carl F. Zeidler and Leo B. Hanley, Asst. City Attys., all of Milwaukee, for appellant.

Joseph A. Padway and Michael Klein, both of Milwaukee, for respondent.

FAIRCHILD, Justice.

[1][2] Under the laws of this state, the city of Milwaukee may enact ordinances prohibiting gambling.The legislative branch of the city government may also, within constitutional limits, enact ordinances which classify as a nuisance the keeping in public places of devices readily adaptable to gambling.

The police officials of the city, acting under sec. 1069 of the city ordinances, have taken into their possession a “nickel-in-the-slot” machine.They found it in a restaurant where it had been placed by the owner with the consent of the restaurant proprietor, under an agreement to divide the earnings on sixty-forty basis.Upon the front of the machine appeared the legend, “A Game of Skill-For Amusement Only.”It is admitted by the police that there is no evidence that bets were placed upon the results of the operation of the machine.No arrest of any person was made, and there is no proceeding pending in the district court of Milwaukee county, which has jurisdiction to determine whether violations of ordinances have occurred.

[3] Two questions are presented.One relates to the authority or power of the common council to enact the ordinance.The other relates to the scope of interpretation of the ordinance.As suggested at the beginning of this opinion, there is a recognized doctrine that the possession of certain articles may be forbidden upon the theory that they lend themselves to illegal uses and are therefore a public nuisance.Familiar subjects for the exercise of this police power are liquor and narcotics, firearms, and gambling devices.Ordinarily the evil or dangerous character of the outlawed articles is clear and obvious, but the same power may be used to abate a public nuisance arising out of the use or possession of articles which are entirely harmless when properly used or controlled.

In Herman v. Mackenzie, 1928, 197 Wis. 281, 283, 221 N.W. 758, the plaintiff brought replevin to recover a dog which had been caught running deer.The court held that the replevin could not be maintained, saying: “It is a general rule that articles which are by law a public nuisance per se are not lawful subjects of property which the law protects, and such property may be seized and destroyed without violating any constitutional provision.*** The law has therefore declared such an animal a public nuisance.It is considered therefore that the plaintiff has no right of property in the animal, and that an action of replevin will not lie to restore possession of the dog to the owner under the admitted facts of this case.”

An illustration of the lengths to which the legislature and the courts have gone in protecting the public interest may be found in Commonwealth v. Savage, 1892, 155 Mass. 278, 29 N.E. 468.A statute, evidently designed to protect the lobster industry of the state, made it unlawful for anyone to have in his possession a lobster less than ten and one-half inches in length.The defendant imported lobsters from the British provinces, and upon finding that some were below the legal size, returned them alive to tide-water.Nevertheless it was held that he was liable to a fine of five dollars for each undersized lobster, mere possession having been declared an offense.

A leading case on the subject of confiscation under state police power is Lawton v. Steele, 1894, 152 U.S. 133, 142, 14 S.Ct. 499, 38 L.Ed. 385.A fish commissioner was sued for the conversion of fish nets seized by a warden.The court said [page 503]: “It is said, however, that the nets are not in themselves a nuisance, but are perfectly lawful acts of manufacture, and are ordinarily used for a lawful purpose.This is, however, by no means a conclusive answer.Many articles-such, for instance, as cards, dice, and other articles used for gambling purposes-are perfectly harmless in themselves, but may become nuisances by being put to an illegal use, and in such cases fall within the ban of the law, and may be summarily destroyed.*** The power of the legislature to declare that which is perfectly innocent in itself to be unlawful is beyond question, (People v. West, 106 N.Y. 293, 12 N.E. 610[60 Am.Rep. 452];) and in such case the legislature may annex to the prohibited act all the incidents of a criminal offense, including the destruction of property denounced by it as a public nuisance.”

It is argued that sec. 66.05 (6), Stats., has preempted the field of regulation of gambling devices and results in a limitation of the city's power to act in the matter.Sec. 66.05 (6) provides as follows: “The board or council of any town, village, or city may prohibit all forms of gambling and fraudulent devices and practices and cause the seizure of anything devised solely for gambling or found in actual use for gambling and the destruction thereof...