Hurvich v. City of Birmingham

• Court: Alabama Court of Appeals
• Writing for the Court: HARWOOD
• Citation: Hurvich v. City of Birmingham, 35 Ala.App. 341, 46 So.2d 577 (Ala. App. 1950)
• Decision Date: 23 May 1950
• Docket Number: 6 Div. 8
• Parties: HURVICH v. CITY OF BIRMINGHAM.

Page 577

46 So.2d 577

35 Ala.App. 341

HURVICH v. CITY OF BIRMINGHAM.

6 Div. 8.

Court of Appeals of Alabama.

May 23, 1950.

Berkowitz, Fleisher & Miller, of Birmingham, for appellant.

Chas. H. Brown, of Birmingham, for appellee.

HARWOOD, Judge.

On appeal from his conviction in the Recorder's Court of the City of Birmingham this appellant was again adjudged guilty by the circuit court, sitting without a jury, of violating Section 602 of the General City Code of Birmingham of 1944.

Section 602, supra, reads as follows: 'It shall be unlawful for any person, either as principal, agent or employee of another to have in his possession or custody at any place in the City any machine or device which has, or includes, one or more movable constituents or parts designed to be set in motion as a means of playing, or engaging in a game or test of skill or chance, and which also has, or includes, a slot or receptacle designed for the receipt of a consideration for the privilege, right or opportunity of setting in motion such part or parts.'

Omitting the formal parts, the complaint on which appellant was convicted in the circuit court charged that appellant 'within twelve months before the beginning of this prosecution and within the City of Birmingham or the police jurisdiction thereof did have in possession or custody at a place in the city a machine or device which had, or included, one or more movable constituents or parts designed to be set in motion as a means of playing, or engaging in a game or test of chance or skill, and which had or included a slot or receptacle designed for the receipt of a consideration for the privilege, right or opportunity of setting in motion such part or parts, contrary to and in violation of Section 602 of the General City Code of Birmingham of 1944.'

The cause was submitted in the circuit court on the following agreed statement of facts:

'On May 21st, 1947, Harry Hurvich, the defendant, had in his possession at 2117 3rd Avenue, North, in the City of Birmingham, a machine which had or included one or more movable constituents or parts designed to be set in motion as a means of playing or engaging in a game or test of chance or skill. It also had or included a slot or receptacle designed for the receiving of a consideration for the privilege, right or opportunity of setting in motion such part or parts.

'More particularly described, the machine was one, one part of which consisted of a metal device similar in size and design to an automatic pistol, said pistol or part being fastened in the front end of the machine, capable of being moved in a limited degree so as to be brought to bear on the target, and said pistol discharged, by means of a spring and metal trigger, a metal pellet or bullet.

'A second part of the machine was a slot or receptacle in which the insertion of a one-cent piece of coin, commonly known as a penny and the pressing of a lever arranged for that purpose, voided any previous score and set the machinery up for the said automatic pistol to discharge ten metal pellets or bullets at the targets. Upon the pistol's being accurately aimed at fixed targets, numbered consecutively from one to nine, located in the back end of said machine, and the trigger of said pistol pressed, the discharged pellet or bullet struck a device in the back of said target which dropped a ball in the top of the machine to indicate that that particular target had been hit. Successive pressing of the trigger repeated the process until the ten pellets or bullets which had been released by the insertion of the coin had been fired or discharged whereupon the insertion of another coin in said slot voided the score and started the process above outlined over again.

'The place of business of the defendant, Harry Hurvich, at the time of the arrest, was open to the public and had on display a number of machines of similar design and construction, four of which were seized by the officers making the arrest. Neither of these machines had affixed to them any City of Birmingham license for their operation. No prizes or awards of any kind, directly or indirectly were indicated as being awarded for any score attained nor did the machines dispense any merchandise, checks or commodities.'

In the trial below the appellant filed a motion to quash the complaint which was overruled, upon which he filed a demurrer to the complaint, which was likewise overruled. Both of these pleadings contain several grounds asserting in various ways the invalidity of Section 602, supra, as tested by Section 6 of the Constitution of Alabama, and of Article 14 of the Amendments to Constitution of the United States.

A municipal corporation is but a creature of the State, existing under and by virtue of authority and power granted by the State. As an inherent part of such granted power municipalities exercise police powers in regulating the lives and affairs of its citizens. Co...