McNeice v. City of Minneapolis

• Decision Date: 28 June 1957
• Docket Number: No. 37026,37026
• Citation: 84 N.W.2d 232,250 Minn. 142
• Parties: John R. McNEICE, Respondent, v. CITY OF MINNEAPOLIS et al., Appellants.
• Court: Minnesota Supreme Court

Page 232

84 N.W.2d 232

250 Minn. 142

John R. McNEICE, Respondent, v. CITY OF MINNEAPOLIS et al., Appellants.

No. 37026.

Supreme Court of Minnesota.

June 28, 1957.

Syllabus by the Court

1. M.S.A. § 614.06, which denounces gambling as an offense; § 614.07, which imposes a penalty for the possession or use of gambling devices; and § 325.53, subd. 2, which defines 'gambling devices' as 'slot machines, roulette wheels, punchboards, number jars and pin ball machines which return coins or slugs, chips, or tokens of any kind, which are redeemable in merchandise or cash' all relate to the subject of gambling and are construed together as one law on that subject. It is clear from the language used in § 325.53, subd. 2 (L.1947, c. 586), in light of the legislative history of the definition of 'gambling devices,' that pinball machines which merely award free replays to a player achieving a certain score, are not gambling devices, provided, of course, that the replays are not used as a system of making 'payoffs' in cash or merchandise.

2. It is not within the province of a court to encroach upon the legislative field by an interpretation which would in effect rewrite a statute so as to accomplish a result which might be desirable and at the same time conflict with the expressed will of the legislature.

Miles Lord, Atty. Gen., Robert W. Garrity, Deputy Atty. Gen., John R. Murphy, Asst. Atty. Gen., Charles A. Sawyer, City Atty., and Raymond H. Hegna, Asst. City Atty., Minneapolis, for appellants.

Maslon, Kaplan, Edelman, Joseph & Borman, Minneapolis, Samuel H. Maslon and Sidney J. Kaplan, Minneapolis, of counsel, for respondent.

MURPHY, Justice.

This is an appeal from a judgment declaring that the type of pinball machine which the plaintiff had been maintaining on his premises did not constitute a gambling device or a lottery within the meaning of M.S.A. §§ 614.01, 614.06, and 614.07. The judgment of the trial court also enjoined the city of Minneapolis and all of its officers and agents from enforcing the order of the city's superintendent of police to confiscate all pinball machines which were designed to give free plays to a player attaining a certain score. This order had been issued in accordance with an opinion of the attorney general of Minnesota which had been issued on December 12, 1955, to the effect that pinball machines which awarded free games to their players were gambling devices within the meaning of §§ 614.06 and 614.07. See, Opinion Attorney General, No. 733-D, December 12, 1955.

The pinball machine involved in this case had been maintained by the plaintiff at his place of business, commonly known as an amusement arcade, located at 812 Hennepin Avenue in Minneapolis, until December 15, 1955, when the superintendent of police issued the aforementioned order. The machine is known as a 'one nickel-five ball machine.' The player can insert only one nickel for a single game. Upon doing so, five metal balls are released. These balls are propelled one at a time onto the playing board of the machine by pulling and releasing a plunger. The score which the player attains is dependent on the route which these balls take while they are on the playing board, what contacts the balls make, and into which apertures the balls fall. If a certain score is attained, the player is rewarded by being allowed to play an additional number of games on the machine without inserting any more nickels.

Basing its argument on the premise that a free-play pinball machine is by reason of its inherent character a gambling device and calling attention to social implications which are said to make its use one which is in violation of the gambling laws, the state, supported by a considerable body of authority, earnestly argues that the machine is in fact a gambling device within the meaning of §§ 614.06 and 614.07.

1. There is a sharp division of authority on the question of whether a pinball machine awarding only free replays constitutes a gambling device. It appears that in those jurisdictions where the statutes do not expressly mention whether such machines are illegal, the determination is left to the courts. In those jurisdictions where the statutes do not expressly mention free-play machines, the majority holding is that free plays as an award for successful operation of pinball machines do not constitute property or a thing of value. Washington Coin Machine Ass'n v. Callahan, 79 U.S.App.D.C. 41, 142 F.2d 97; Chicago Patent Corp. v. Genco, Inc., 7 Cir., 124 F.2d 725; Davies v. Mills Novelty Co., 8 Cir., 70 F.2d 424; Mills Novelty Co. v. Farrell, 2 Cir., 64 F.2d 476; State v. Waite, 156 Kan. 143, 131 P.2d 708, 148 A.L.R. 874; State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P.2d 225; State v. Betti, 23 N.J.Misc. 169, 42 A.2d 640; Overby v. Oklahoma City, 46 Okl.Cr. 42, 287 P. 796; In re Wigton's Return, 151 Pa.Super. 337, 30 A.2d 352; Commonwealth v. Kling, 140 Pa.Super. 68, 13 A.2d 104; State v. One 'Jack and Jill' Pinball Machine, Mo.App., 224 S.W.2d 854; Crystal Amusement Corp. v. Northrop, 19 Conn.Supp. 498, 118 A.2d 467; Gayer v. Whelan, 59 Cal.App.2d 255, 138 P.2d 763. But, see, Thamart v. Moline, 66 Idaho 110, 156 P.2d 187; State v. Bally Beach Club Pinball Machine, 119 Vt. 123, 119 A.2d 876; State v. Wiley, 232 Iowa 443 3 N.W.2d 620; Giomi v. Chase, 47 N.M. 22, 132 P.2d 715.

From an examination of the numerous authorities cited, it appears that a number of courts have extended old definitions of gambling to apply to any type of pinball machine. This policy has been carried to the point where appellate courts of Illinois have said that a free-play pinball machine is a subterfuge, that it is a gambling device per se, and that 'Their common use as gambling devices is what condemns them' without any evidence as to proof. People v. One Pinball Machine, 316 Ill.App. 161, 173, 44 N.E.2d 950, 956; People v. One Mechanical Device, 9 Ill.App.2d 38, 132 N.E.2d 338. In reversing the latter case, 11 Ill.2d 151, 155, 142 N.E.2d 98, 100, the Supreme Court of Illinois said:

'We are of the opinion that a free play is neither money, the equivalent of money, nor a valuable thing. It is unrealistic to hold that the possibility of winning a greater or lesser amount of amusement is gambling because if it were, most amusement games would be barred by the statute.' ¹

A further discussion of the cases from other jurisdictions would serve no useful purpose because the holdings in such cases depend to a considerable degree on the wording of the various statutes which these jurisdictions have. The Minnesota statutes prohibiting gambling and the maintenance of a gambling device for the purpose of gambling, §§ 614.06 ² and 614.07, ³ do not define either 'gambling' or 'gambling device.' However, a licensing statute enacted in 1947 which was designed and passed to effectuate the policy of prohibiting gambling does contain a definition of 'gambling devices.' Section 325.53, subd. 2 (L.1947, c. 586) states: "Gambling devices' means slot machines, roulette wheels, punchboards, number jars and pin ball machines which return coins or slugs, chips, or tokens of any kind, which are redeemable in merchandise or cash.' The clause 'which are redeemable in merchandise or cash' was not in the definition as originally reported back to the House by the Committee on General Legislation. ⁴ It was included by a later amendment. ⁵ The purpose of the amendment was obviously to eliminate from the definition of gambling devices pinball machines which give free replays by returning slugs, chips, or other tokens to the player to be used only in playing the machine. Thus, the legislature clearly intended to exclude from the definition of gambling devices pinball machines which give free replays without returning any tokens to the player.

The state asserts that this definition of 'gambling devices' which is found in § 325.53, subd. 2, should not be applied to the use of the same phrase in §§ 614.06 and 614.07. Even though § 325.53, et seq., deal with licensing, the primary, if not the sole, purpose behind their enactment was to eliminate gambling. In construing certain gambling statutes, this court said in Foley v. Whelan, 219 Minn. 209, 211, 17 N.W.2d 367, 369:

'* * * Statutes relating to the same subject matter, especially where they have the same purpose in view, are In pari materia and are to be construed together the same as if they constituted but one statute. * * * The object of the rule is to ascertain and carry into effect the intention of the legislature, and it proceeds upon the supposition that the several statutes were governed by one spirit and policy and consequently were intended to be consistent and harmonious in their several parts and provisions. * * * All statutes relating to gambling are to be taken together as one law on the subject and as such are construed together.'

In Hahn v. City of Ortonville, 238 Minn. 428, 57 N.W.2d 254, the issue was whether the Civil Damage Act (§ 340.95), which imposes a liability in favor of a third party injured by the intoxication of a purchaser of liquor, applies to a municipality. This court used the definitions of 'person' found in the liquor control acts of 1934 and 1943, M.S.A. §§ 340.07, 340.401, subd. 6, to find that the Civil Damage Act did apply to municipalities, and stated (238 Minn. 437, 57 N.W.2d 261):

'* * * Although enacted at different times there can be little doubt that the legislature has regarded all three acts as supplementary to one another and as integral parts of a unified plan for controlling the sale and consumption of intoxicating liquor. When legislative acts involve a single subject or problem, there is an unusually strong reason for applying the rule of statutory construction that when statutes are In pari materia they are to be construed harmoniously and together.'

Following the foregoing two cases in applying the doctrine of interpreting statutes in...