Gaither v. Cate.

• Decision Date: 16 January 1929
• Docket Number: No. 63.,63.
• Citation: 144 A. 239
• Parties: GAITHER, Police Com'r v. CATE.
• Court: Maryland Court of Appeals

144 A. 239

GAITHER, Police Com'r

v. CATE.^*

No. 63.

Court of Appeals of Maryland.

Jan. 16, 1929.

Appeal from Circuit Count of Baltimore City; Eugene O'Dunne, Judge,

Suit by Frank Cate against Charles D. Gaither, Police Commissioner of the Police Department of Baltimore City, for an injunction restraining the seizure and confiscation of certain machines until such machines were shown to be used as gambling devices. From a decree for complainant, defendant appeals. Reversed and bill dismissed.

Argued before BOND, C. J., and PATTISON, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Willis R. Jones, Asst. Atty. Gen., and William L. Marbury, of Baltimore (Thomas H. Robinson, Atty. Gen., on the brief), for appellant.

Robert F. Leach, Jr., and Richard E. Preece, both of Baltimore, for appellee.

DIGGES, J. The appellee in this case is the owner of 100 machines by which certain confections or mints are delivered to patrons upon the placing of a nickel in a slot at the upper part of the machine. In addition to the mechanism which results in the sale of a package of mints for five cents, the machine has a certain other mechanical contrivance which does other things which will be later referred to more particularly. The police commissioner of Baltimore City gave instructions to seize the machines of the appellee and all other similarly constructed and operated machines in Baltimore City. Learning of such order, the appellee filed his bill of complaint in the circuit court of Baltimore City praying for an injunction restraining the commissioner and the police authorities from seizing and confiscating the machines in question unless and until the particular machine sought to be confiscated is shown to be used as a gambling device. After a hearing in open court the chancellor granted a permanent injunction in the following words: "That Charles D. Gaither, as Police Commissioner of the Police Department of Baltimore City, and any and all members of the Police Department of Baltimore City be and they are restrained and enjoined from in any way interfering, molesting, seizing, threatening to seize, or taking into custody op possession any vending machines which are being used, operated, leased or rented by the plaintiff, unless and until said vending machines are found to be illegally operating in violation of the gambling laws of the State of Maryland." From this decree the police commissioner has appealed.

The appellee urges two points: First, that the machines in question do not constitute gambling devices within the meaning of certain sections of article 27 of the Code; and, second, that equity has power to restrain arbitrary interference with the machines by the police commissioner. A considerable portion of the brief of the appellee is consumed in the citation of authorities and argument on the second point; but we do not deem it necessary to dwell at any length upon the proposition there advanced, because we do not find that this point is disputed by the appellant. Suffice it to say in this regard that there can be no question that a court of chancery is the proper tribunal and has the power to restrain the unwarranted and illegal interference by the police authorities with the property or property rights of an individual, either because there is no warrant in law for the exercise of the attempted interference with such property or property rights, or because of the illegal methods employed in the exercise of the authority which he has; in other words, either because of the absence of authority, or the abuse of the authority sought to be exercised. The case before us does not present such an issue. The question here is not whether a court of equity has the power to issue an injunction, but whether, under the facts as disclosed by the record, it should issue the injunction. The question is not one of power or authority on the part of the court, but whether it is proper to exercise that power in restraining the appellant in such a case as is presented by this record. The real and controlling question in this case, therefore, is whether the use of the device spoken of in the record, sometimes as a slot machine and sometimes as a vending machine, is prohibited by the statutes of our state.

The first contention of the appellant is that the use of the device here in question, in the manner in which the record shows it to have been used, is in violation of section 849 of article 27 of the Code, which reads, "No person or body corporate shall be permitted, either directly or indirectly, by agent or otherwise, to barter, sell or trade, or to offer for barter, sale or trade, by any publication, or in any way, any wares, goods or merchandise of any description, in package or bulk, holding out as an inducement for any such barter, sale or trade, or the offer of the same, any scheme or device by way of gift enterprise of any kind or character whatsoever ;" and, second, that the appellee, by the use of the devices in the manner described in the record, is guilty of a violation of section 68 of article 27, which provides: "Any person who, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the contents of any automatic vending machine, slot machine, coin box telephone or other receptacle, depository or contrivance designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, or who, knowing that the same is intended for unlawful use, shall manufacture for sale, or sell or give away any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coin box telephone, or other such receptacle, depository or contrivance, shall be guilty of a misdemeanor, and upon conviction thereof, before any court of competent jurisdiction, shall be punished by a fine not exceeding $500.00, or by imprisonment not to exceed three months, or both in the discretion of the Court."

Section 257 of article 27 provides: "The courts shall construe the preceding sections relating to gambling and betting liberally, so as to prevent the mischiefs intended to be provided against" The section last quoted follows a number of sections of the Code, beginning with section 244, under the general subdivision of "Gaming," and refers specifically to the preceding sections, and was enacted in 1842. While it is true that section 349, which is classified under the subdivision "Lotteries," was not passed until after 1842, and therefore it can be argued that section 257, as to the construction of gambling statutes, could not apply specifically to an act passed after 1842, nevertheless we take it that section 257 is an expression by the Legislature of the policy of the state in respect to the construction of gambling statutes generally, and requires the courts to construe statutes prohibiting and penalizing the use of gambling devices liberally, so as to prevent the mischiefs which the Legislature sought to repress. By that section it was, in effect, stated by the Legislature to the courts that whenever the Legislature enacted statutes having for their object the repression of gambling, in respect to such statutes the rule of strict construction should be reversed, and the courts should so construe them as to give validity not only to the word but to the spirit of the law. According to our view, it is incumbent upon the courts to give force and effect to the legislative mandate contained in this section of the Code, and to construe liberally statutes aimed and intended to prevent gambling, in order to effectuate the legislative intent and purpose; and therefore this statutory rule of construction should be applied to all gambling statutes without regard to whether they were enacted before or subsequent to section 257.

The record discloses that the machine in question has the general appearance of a cash register. Through the glass front is visible the character of merchandise with which it is loaded; in this particular instance the merchandise being small cylinders of mint wafers, each package marked to retail at five cents, and costing the appellee, in $1,000 purchases, one and a quarter cents each. On top of the box is a slot in which to deposit a nickel. On the right side of the box is a lever, the pulling of which releases the coin, and when the coin falls it releases one package of merchandise to a lower tray; it then requires the turning of a ratchet or wheel to throw the merchandise from the tray to the hand of the purchaser. Directions for operation of the machine are printed on its face. In addition, there is under a glass slide an indicator resembling a speedometer on a motor. This indicator automatically sets itself with the letters "no" or the figures 2, 4. 6. 8, 10, 12, 16 or 20; it acquaints one familiar with the operation of the machine as to whether or not, when a nickel is placed in the slot and the machine operated, in addition to the package of merchandise he will get a certain indicated number of metal discs or slugs, of the approximate circumference and thickness of a nickel. When the indicator shows the letters "no" it means no checks or slugs will be discharged, and when the indicator shows the figures as above set forth, from 2 to 20, it means that the operator, in addition to his package of mints, will receive the number of slugs or discs indicated by the figures then showing. In other words, if any of the figures appear in the dial, the operator knows that in addition to the package of mints, the machine at the time of the delivery of the merchandise will also throw out a number of slugs, equal to the number showing on the dial. These discs or slugs are yellow in appearance, with a hole in the middle, and have the appearance of an ordinary washer; they have on one side the words, "of no value, not redeemable," and on the other, "for amusement only." On the...