McKee v. Foster

Citation347 P.2d 585,219 Or. 322
PartiesMarshall McKEE, Respondent, v. Walter FOSTER, District Attorney of Polk County, and Robert Y. Thornton, Attorney General of the State of Oregon, Appellants.
Decision Date09 December 1959
CourtSupreme Court of Oregon

Donal D. Sullivan, Asst. Atty. Gen., for appellants. On the brief were Robert Y. Thornton, Atty. Gen., and John D. Nichols, Asst. Atty. Gen., and Walter W. Foster, Dist. Atty. of Polk County, Dallas.

Bruce W. Williams, Salem, for respondent. With him on the brief were Otto R. Skopil, Jr., and Paul Burris, Salem.

ROSSMAN, Justice.

This is an appeal by the state from a decree entered by the circuit court in a cause which the plaintiff, Marshall McKee, instituted against the District Attorney of Polk County, Mr. Walter Foster, and the Attorney General of this state, Mr. Robert Y. Thornton, for the purpose of securing a declaratory decree determining whether or not free play pinball machines are gambling devices. Attached to the complaint as an exhibit and forming a part of it is an opinion of the defendant Attorney General dated March 20, 1958, which declares 'It is my opinion that these so-called 'free play' machines violate both ORS 167.535 and 167.555.' The complaint alleges that the plaintiff owns and operates 'certain free play pinball machines.' Although it gives an extensive description of the manner in which machines of that kind operate, we will, in lieu of quoting it, take the following from the answer of the two defendants which sets forth the process whereby the machines indicate the right of a winning player to a free play.

'* * * Scores are credited to the player if he causes a ball to roll into the holes on the board. When a ball rolls into the hole it causes an electronic circuit to be activated which lights one of the squares in the panel on the backboard corresponding to the number assigned the hole. The object of the player is to light three, four or five lights in a row horizontally, vertically or diagonally on the backboard by causing the ball to roll into the appropriate hole on the board. Free plays are scored upon principles similar to Bingo by the lighting of three, four or five lights in a row. * * *'

The complaint avers that 'it is just and equitable under the existing circumstances that the Court * * * determine by declaratory judgment that the machine herein is not a gambling device as defined by Oregon Revised Statutes 167.535 and 167.555 and that the legal opinion of the defendant Thornton and its directive be held for naught * * *.' The prayer sought a decree holding that 'free play pinball machines of the type herein described and proof of operation offered are not gambling devices as defined by ORS 167.535 and 167.555.'

We have quoted parts of the answer which the two defendants filed jointly. Other parts admitted that the defendant Attorney General issed in his 'official capacity' the opinion dated March 20, 1958, in which he expressed the belief that 'these so-called 'free play' machines violated both ORS 167.535 and 167.555.' The answer further alleged that on October 4, 1947, Mr. Thornton's predecessor issued an opinion which declared that 'free-play pinball machines were gambling devices as defined by §§ 23-935 and 23-939 O.C.L.A., now compiled in Oregon Revised Statutes as ORS 167.535 and 167.555 respectively.' Going on, it alleged that 'on or about March 20, 1958, defendant Thornton caused to be issued an Opinion No. 3976, affirming the aforesaid opinion and conclusion reached by Attorney General Neuner.' The answer further set forth:

'Plaintiff contends that the free-play pinball machines owned and operated by him in the manner above described are not prohibited nor subject to seizure and destruction under the provisions of ORS 167.405, 167.535 to 167.540 or 167.555.'

It continues:

'* * * a real and substantial dispute exists between plaintiff and defendants herein over the lawfulness of free-play pinball machines as herein described under the provisions of ORS 167.405, 167.535 and 167.555.'

The cause was submitted to the court upon stipulated facts. The part of the findings of fact which recites the manner in which the machine indicates the player's right to a free play is couched in the same language as the above quoted excerpt of the answer. The findings contain no assertion that the machine issued to the player anything except a free play. Nor do they contain any recital that there comes to the player something of a tangible or physical nature such as a token, slug or card. The conclusions of law state:

'The machine as described in the Findings of Fact does not dispense money, checks, slugs, tokens, credit or other representative of value or evidence of winning capable of being exchanged or redeemed for anything of value, when it returns to the player free plays upon securing a designated score.'

There is no claim that the statement just quoted is at variance with the record. The illumination of a part of the machine in the manner indicated by the excerpt which we took from the answer signifies to the player that he has won the right to a free play. In order to avail himself of the right he pushes a button but does not deposit in the machine a coin, slug or anything else. The brief filed by the defendants-appellants (Attorney General and District Attorney) says:

'It is this distinctive 'free game' feature which is involved in this case and which incidentally gives this and other similar machines the generic term 'free-play pinball machines.' Such machines thus stand apart from machines dispening coins, tokens, mints or similar items. Cf., State v. Coats, 158 Or. 122, 124-127, 73 P.2d 1102.'

In other words, the machine with which this case is concerned issues to the player no slug, coin or other item. Likewise, it awards to the player nothing whatever except occasionally a free play.

The findings of fact, after mentioning ORS 167.405, 167.535 and 167.555 which are cited in the answer, state:

'* * * Provided, however, that the parties through their attorneys have agreed that the applicable statute to be interpreted is 167.535.'

No one claims that the finding just quoted misstates the agreement of the parties. ORS 167.535 reads as follows:

'Any person, firm or corporation who possesses, sets up, conducts, maintains, operates, or is in control of the operation, either as owner, proprietor, lessee, employe or agent, or plays or uses any nickel-in-the-slot machine or other device of like character, which operates as described in this section and which may or may not indicate before the deposit of a coin what it will vend or dispense, shall be punished upon conviction by a fine of not less than $10 nor more than $100, and in default of payment of the fine shall be imprisoned in the county jail one day for each $2 thereof:

'(1) Upon deposit therein of a coin, slug, token or other thing representative of value, the machine may vend or dispense any merchandise, money, check, token, slug, credit or other representative of value or evidence of winning in varying quantities or values, depending upon chance.

'(2) In exchange for a deposit therein, there may be received at occasional or uncertain intervals or in varying quantities or value, from time to time, depending upon chance, any money, check, slug, token, credit or other representative of value or evidence of winning which:

'(a) May be exchanged or redeemed for anything of value.

'(b) May be deposited in such machine or device for further operation or play with the chance of winning or receiving additional merchandise, money, check, token, slug, credit or other representative of value or evidence of winning.'

The appellants (defendants) present only one assignment of error. It follows:

'The court erred in entering its decree permanently enjoining the defendants from curtailing, molesting or confiscating the plaintiff's free-play pinball machines inasmuch as such decree was based upon an incorrect Conclusion of Law that the operation of such machines was not prohibited by ORS 167.535, which was not supported by the undisputed facts.'

Terry v. City of Portland, 204 Or. 478, 269 P.2d 544, held that since free play pinball machines lend themselves to gambling purposes the police power of the state may suppress them. The question remains, however, as to whether or not the plaintiff's machines come within the terms of the statute just quoted.

It will be noticed that ORS 167.535 provides that any person who possesses 'any nickel-in-the-slot machine * * * which operates as described in this section' is guilty of the crime proscribed by that section of our laws. That provision is followed by two subsections which contain many similar words but which are concerned with machines of three different kinds. Subsection (1) begins this way, 'Upon deposit therein of a coin, slug, * * *' and subsection (2) begins, 'In exchange for a deposit therein * * *.' Although the latter omits the words 'coin, slug * * *' the two provisions mean the same. The deposit activates the machine and thereupon the play begins. From that point on subsection (1) describes a machine which is different from that described in subsection (2). Subsection (1) in specifying the machine with which it is concerned uses these words, 'may vend or dispense any merchandise, money, check, token * * *.' Thus, the machine to which it is applicable vends or dispenses merchandise, money, checks, etc. Subsection (2) omits the words 'vend or dispense' and, accordingly, the device to which it is applicable is not a vending machine. Subsection (1) renders a machine which vends or dispenses merchandise, etc. 'in varying quantities or values, depending upon chance' unlawful. Although one who patronizes a machine of that kind is certain to receive something, however small or great in value it may be, yet because of the fact that the 'quantities or values' which come to him are ...

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  • Cornelius v. City of Ashland
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