Ex parte Pierotti

• Decision Date: 06 October 1919
• Docket Number: 2404.
• Citation: 184 P. 209,43 Nev. 243
• Parties: Ex parte PIEROTTI.
• Court: Nevada Supreme Court

184 P. 209

43 Nev. 243

Ex parte PIEROTTI.

No. 2404.

Supreme Court of Nevada

October 6, 1919

In the matter of the original application of Louis Pierotti for a writ of habeas corpus. Writ issued.

Norcross Thatcher & Woodburn, of Reno, for petitioner.

L. D Summerfield, Dist. Atty., of Reno, and L. B. Fowler, Atty Gen., for respondent.

SANDERS J.

The thing or device denominated in the complaint "a lottery" is a "nickel-in-the-slot machine." The act complained of is that the petitioner willfully and unlawfully set up a nickel-in-the-slot machine in his place of business at 128 Commercial Row, in the city of Reno, Nev.

The offense charged with the word "lottery," entirely removed therefrom, would be a public nuisance.

Every place wherein any gambling game or device is kept, or any article, apparatus, or device useful therefor is kept "shall be a public nuisance." Section 6561, Rev. Laws.

Nickel-in-the-slot machines have a well-defined meaning in criminal law.

"Slot machine by which the player has a chance of losing the amount he plays is a *** gambling device." Territory v. Jones, 14 N.M. 579, 99 P. 338, 20 L. R. A. (N. S.) 239, and note, 20 Ann. Cas. 128, and note; 12 R. C. L. pp. 721-26-28-29.

It would be idle for us to deny that chance is the material element in the operation of such machines. The player hopes to get cigars or drinks for nothing. The dealer hopes chance will save him from giving something for nothing. If it were not for the chance to win cigars or drinks, the customers of the dealer would not use the machine. Lang v. Merwin, 99 Me. 486, 59 A. 1021, 105 Am. St. Rep. 293.

Since the year 1901, in this jurisdiction, nickel-in-the-slot machines played for cigars and drinks (now, perforce of the statute, nonintoxicating drinks, Stats. 1919, p. 1) are expressly brought within the purview of gambling statutes. Stats. 1901, c. 13, 1905, c. 52, 1907, c. 212, 1908-09, c. 210, 1913, c. 149, and 1915, cc. 30, 284.

At common law "gaming," or the synonymous term "gambling," was not in itself unlawful, and is not now eo nomine a crime, unless so made by statute. 12 R. C. L. 708. "But at common law all public gaming houses were nuisances, not only because they were deemed great temptations to idleness, but also because they were apt to draw together great numbers of disorderly persons." Scott v. Courtney, 7 Nev. 419.

Our Legislature, in the exercise of its power over the policy and morals of the people, found it desirable to declare every place wherein any gambling game or device is kept, or any article, apparatus, or device useful therefor is kept, to be a public nuisance. But in 1915 the Legislature (St. 1915, c. 284), in legislating upon the subject of gambling, found it desirable and expedient to modify the stringent provisions of the anti-gambling law by inserting therein a proviso:

"Provided, however, that nothing in this paragraph shall be construed as prohibiting social games played, only for drinks and cigars served individually, or for prizes of a value not to exceed two dollars, nor nickel-in-the-slot machines for the sale of cigars and drinks and no playback allowed."

The paragraph referred to in the proviso reads:

"Every person who shall play at any game whatsoever, other than those hereinabove excepted, for money, property or gain, with cards, dice or any other device which may be adapted to or used in playing any game of chance, or in which chance is a material element, or who shall bet or wager on the hands or cards or sides of such as do play as aforesaid, shall be deemed guilty of a felony."

It is obvious that the purpose of the proviso was to exempt players at such machines from prosecutions for a felony, and also to declare places wherein such gambling devices are kept to be lawful places. If it was competent for the legislative body to pass the act declaring every place wherein a gambling device which is adapted and used for the purpose of gambling to be a public nuisance, it must be conceded that it was competent for that body by the adoption of the proviso to make the place, which but for the statute would be a public nuisance, a lawful place. It is true as a general proposition that courts will not hold conduct to constitute a nuisance where authority therefor exists by virtue of legislative enactment. This rule is supported by abundant authority. 20 R. C. L. 500, and note. But it must be observed that this rule is subject to the limitation above indicated, that it must be competent for the legislative body in the first instance to declare the thing or place a nuisance. This is a matter for judicial determination, and brings us to the real and only point to be determined in this proceeding, Has the Legislature, by the adoption of the proviso above quoted, sanctioned a lottery?

Unless gambling devices, such as nickel-in-the-slot machines, may be said to be brought within the constitutional inhibition (article 4, § 24), "no lottery shall be authorized by this state," the Legislature has not exceeded its power in adopting the proviso in question. A lottery is defined by statute to be any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property, or any portion of it, *** whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known. Section 6494, Rev. Laws. It would seem from this comprehensive language to have been the intention of the Legislature to prevent every pecuniary transaction in which chance is a material element. In this connection it may be said that we are entirely in accord with what is said in the case of the State v. Overton, 16 Nev. 136, an able and exhaustive discussion of the subject of lotteries.

There is no doubt that nickel-in-the-slot machines amount to the disposal of property by chance, but whether or not they amount to setting up, proposing, or drawing a lottery, as the word "lottery" is used in the Constitution-"No lottery shall be authorized by this state" (article 4, § 24, Const.)-is an entirely different question. There can be no doubt of what was meant by this language of the Constitution, and it clearly referred to the class of enterprises which had formerly been lawful if authorized by law, and criminal if unauthorized. People v. Reilly, 50 Mich. 384, 15 N.W. 520, 45 Am. Rep. 47.

It is contended by the state that the word "lottery," as defined by the statute, expresses both the intention of the framers of the Constitution and the Legislature to prohibit the enactment of any law that sanctions the disposal of property by chance, "by whatever name the same may be known."

"It is a safe and necessary rule to construe criminal statutes so as to include what is fairly and reasonably within the legitimate scope of the language, but not to include what is not within the language, merely because it partakes of similar mischievous qualities." People v. Reilly, supra.

It is true that in common parlance, in a dictionary sense and the statutory definition, the word "lottery" may be a game. But the Legislature of this state, since the date of its organization as a state, has plainly drawn a distinction between lotteries and unlawful gaming. This distinction is universally recognized as being within the power of such bodies to make in the...