Hunter v. Mayor and Council of Teaneck Tp.

• Decision Date: 24 February 1942
• Docket Number: No. 203.,203.
• Citation: 24 A.2d 553,128 N.J.L. 164
• Parties: HUNTER et al. v. MAYOR AND COUNCIL OF TEANECK TP. et al.
• Court: New Jersey Supreme Court

24 A.2d 553

128 N.J.L. 164

HUNTER et al.

v. MAYOR AND COUNCIL OF TEANECK TP. et al.

No. 203.

Supreme Court of New Jersey.

Feb. 24, 1942.

Certiorari proceeding by Charles A. Hunter and another against the Mayor and Council of the Township of Teaneck and others to review the legality of an ordinance.

Writ dismissed.

October term, 1941, before BODINE, PERSKIE, and PORTER, JJ.

Abram A. Lebson, of Englewood (Seymour A. Smith, of Englewood, of counsel), for prosecutors.

Donald M. Waesche, of Jersey City, for respondents,

Louis A. Fast, of Newark, amicus curias.

PERSKIE, Justice.

The primary question requiring decision in this cause is whether the ordinance prohibiting the keeping of pin ball machines in any place of business in the Township of Teaneck is ultra vires.

On March 18, 1941 respondent, Township of Teaneck, passed an ordinance (No. 781) prohibiting the "keeping" of any "game of chance" or "gambling device" in any place of "business" within the municipality. N.J.S.A. 40:48-1, par. 6; 40:48-2.

Section 1 of the ordinance provides that any "game, machine, apparatus or device such as is commonly called bagatelle, pin ball, or roulette, and any game, machine * * * of like nature by whatever name known should be deemed and regarded as a game of chance or gambling device."

Section 2 provides that "no person shall have, or keep, in any store, shop, tavern, restaurant or other place of business within the Township of Teaneck * * * any game, machine, apparatus or device such as * * * pin ball * * *."

Section 3 provides that the police of the township "are authorized to seize and hold for such further disposition as is authorized by law any game * * * pin ball found in any store * * * restaurant * * * or other place of business in the township * * *".

Section 4 provides that any person convicted for violating the provisions of the ordinances shall be subject "to a fine of not more than two hundred dollars, or imprisonment in the county jail not exceeding ninety days." N.J.S.A. 40:49-5.

The police of the township seized some of the banned pin ball machines. Whereupon prosecutor Saunders (substituted for Hunter) who owns pin ball machines and leases them to merchants in the Township of Teaneck and prosecutrix Malatesta, who had and kept a pin ball machine in her restaurant in the township (both hereafter referred to as prosecutors), made application for and were allowed a writ of certiorari by our Supreme Court, at the May Term 1941, to review the legality of the stated ordinance.

While prosecutors argue, among other things, that the question as to whether the ordinance is ultra vires the township is primarily one of law, while they "strenuously deny" that "pin ball machines per se" may properly be "deemed and regarded as a game of chance or as a gambling device", and while they challenge the materiality of the "voluminous testimony" for the township to the contrary, nevertheless, they substantially urge, at the outset, that "pin ball machines" are not gambling devices but devices used as "innocent games of amusement" depending upon the skill with which the machines are operated.

We think that the proofs are relevant. They afford the only proper and legal basis upon which we can reach the truth and take hold of the substance of the real issue. For, "no dressing, however adroit, can make legal that which is illegal." Cf. State v. Berger, 126 N.J.L. 39, 43, 17 A.2d 167, 169.

Thus save as to its complicated mechanical features, a most general description of the construction and operation of the pin ball machines involved, some of which were exhibited to the court at the oral argument, is advisable.

The proofs disclose that the pin ball machines consist of two cabinets; one is horizontal and contains the playing board; the other upright and the front part thereof is the score board. Although the set-up of each playing board varies with each named machine, each in principle is alike. The playing board is studded with obstructions and set up at an incline. A metal ball is propelled to the top of the playing board after it is struck by a plunger operated by the player. The ball then rolls down the playing board passing through certain spaces thereon or striking certain obstructions thereon, some of which have marked scoring value, some free game value, and some no value. As the ball rolls down the playing board it is accompanied by a succession of lights flashing on, or going out, bells or buzzers ringing and buzzing and numbers changing on the score board; and unless the ball on its downward course is lodged at some planned scoring point it finally reaches the trough at the end of the board provided for its reception.

The game is begun by the player (adult and minor) depositing a nickel in the slide of the machine. The slide is then pushed into the machine with the result that five metal balls are released. The playing of five balls constitutes a game. The player then pushes a lever which operates a rocker arm that lifts the balls, one at a time, into a narrow run-way at the right edge of the playing board and against the front end of the plunger. The player then draws back the plunger which compresses a spring so that when the plunger is released it forces or drives the metal ball up the run-way to the top of the playing board whence it takes the course first stated. Free games are awarded. Their number on some machines are as high as 60 to 94 games.

Each machine is designed and constructed so that there are two distinctly different methods of registering, on the award or free game meter attached to each machine, the number of pay offs of free games won. One is called the "Regular" and the other "Free Play." On the back of the score board there is an electric plug to be inserted into either side of a double socket regulating which method of play is to be employed.

When the game is set for "Regular" play free games cannot be played off. When the game is so set, every game requires the insertion of a nickel into the machine. All free games showing on the score board together with the total score are all removed with the beginning of every new game, and it is necessary for the lessee of the machine to pay the player the number of coins indicated by the free plays, if the player is to receive any award for a winning score or if he is to be permitted to play off the free games.

When the machine is set for "Free Play", free games may be played off without the insertion of an additional coin. If the lessee of the machine, however, pays off free games when won, when the machine is set for "Free Play", all the free games and total score may be removed from the score board by pressing a button, underneath the playing cabinet, provided for that purpose.

The machines contain no meter to register the number of coins put into it, nor to register the number of games played. The reason is obvious. The owner is not concerned with the number of games played; for he alone has access to the coin box. But he is concerned with the number of free games played. For a sum equal to that number (based on the price of play of each game) is repaid to the lessee and the balance of the coins in the box is divided, on an agreed basis, between the owner and the lessee.

Thus it becomes abundantly clear that the meter attached to each machine registers only games paid off and not games played off. When set for "Free Play" the award meter does not register the free games as they are won because they may be played off. When so set, the award meter registers only those free games removed from the score board by pressing the button underneath the cabinet, because they are the only free games paid off. In other words, when set for "Free Play", it registers only the free games won and not played off.

The proofs further show that a sheet of instructions in one of the machines stated that each number recorded on the free play meter showed that 5 cents had been awarded therefor. Other record cards taken from one of the coin boxes of a machine actually showed a credit given to the lessee for the free games paid off.

1. In light of the stated proofs, is the pin ball game a game of chance and are pin ball...