Morgan v. State ex rel. Dist. Atty.
Decision Date | 23 January 1950 |
Docket Number | No. 37363,37363 |
Citation | 44 So.2d 45,208 Miss. 185 |
Parties | MORGAN et al. v. STATE ex rel. DISTRICT ATTORNEY. |
Court | Mississippi Supreme Court |
Lucien M. Gex, Bay St. Louis, W. E. Gore, Jackson, for appellants.
Robertson & Robertson, Jackson, for appellee.
On relation of the District Attorney, complaint was filed in the Chancery Court of Hancock County that appellants, as a part of their business, 'have kept, and are now keeping, exhibiting and operating illegally and in flagrant disregard for and open defiance of the laws of the State of Mississippi to the detriment of the welfare, morals and well-being of the citizens of Hancock County, Mississippi, have on numerous occasions illegally had in their possession in said premises certain gaming or gambling devices or machines, commonly called Slot Machines, and other similar devices which are habitually operated in violation of the laws of the State of Mississippi, and particularly said Section 1073, Code 1942; and that on account of said possession, exhibition and operation of the said gambling devices on said premises by defendants, the same has become, and is, a nuisance within the express meaning of the laws of this State, and should be abated as such, as provided for by law in such cases.'
Attached to the original bill of complaint, and as an exhibit thereto, is an affidavit signed by three persons, which contains this allegation: 'each of them played said machines by placing nickels therein and pulling the lever to see whether or not they would win anything * * *'.
The prayer was for a temporary injunction, without notice, restraining appellants from operating or permitting the further operation of the machines, or their removal except by some person lawful authorized by the chancery court. A temporary injunction was accordingly granted. The prayer was further that, after due hearing, the acts complained of be declared to be a common nuisance, and abated as such; and for the granting of all such further orders and decrees necessary and permissible under the law, to effectuate the same; and for general relief.
Appellants demurred, charging among other grounds not argued here, that there was no equity on the face of the bill; the court was without jurisdiction under said Section 1073, Code 1942; slot machines not being named in said section are not within the purview or class of instrumentalities condemned by that section; complainant had an adequate remedy at law, by criminal prosecution; operation of slot machines is not a nuisance under the law; the bill insufficiently describes slot machines, so as to demonstrate that they are gambling devices; the expression 'any other kind or description of gambling device under any other name whatever,' following the enumeration of gambling devices named in the statute, does not lawfully include slot machines, and the failure to name slot machines in the statute constitutes an exclusion of such machines from the operation of the statute and the right to an injunction and the affidavit exhibited with the bill is no lawful part thereof.
The demurrer was accompanied by a motion to dissolve the temporary injunction. Both were overruled, and appellants having declined to plead further, the temporary injunction was made permanent. It was also decreed, that the possession and operation of slot machines in the place of business of defendants below, appellants here, constituted the operation of a gambling device as prohibited by Section 1073, Code 1942, and, was, therefore a public nuisance. Appellants were also ordered to make bond, as provided in the statute. From this decree, they appealed.
The chief complaint by appellants is that slot machines are not within the range of Section 1073, supra, since they are not specifically enumerated among the devices therein listed. The pertinent part of the statute reads: (Italics supplied.)
The further objection to the decree of the chancery court is that the State was not entitled to an injunction, because it had an adequate remedy at law, to wit: criminal prosecution. However, if it be determined that the slot machine, described in the original bill as a gambling device, is brought within the coverage of the statute by this provision, 'or any other kind or description of gambling device under any other name whatever,' then the statute itself answers such argument, without the necessity of further discussion of the point.
The State contends that such clause does bring slot machines used and operated as gambling devices within the statute. Appellants insist that it does not, since the devices intended to be embraced therein are specifically set forth by name, and slot machines not being among those named are therefore excluded, by virtue of the ejustdem generis rule.
In their brief, appellants, on the authority of Funk & Wagnall's New Standard Dictionary, 1927, define most of the gambling devices enumerated in the statute. They say they were unable to find a definition of 'A. B. C.' They do not undertake to define 'dice.'
Perhaps it is as unnecessary to define 'dice', since they are so commonly known, as to define what are commonly known as 'One-Armed Bandits', or 'Slot Machines', used for gambling. No one, perhaps, would seriously doubt that even Supreme Court Judges share the common knowledge as to what are slot machines, operated as gambling devices, even though, along with a great many other citizens, they may never have actually played them.
It is to be noted that practically all of the listed gambling appliances are played by the use of mechanical devices, and that a slot machine for gambling is a mechanical device, so that it comes within the general classification or genus of a mechanical gambling device. The statute with which we are now concerned was first enacted as Chapter 341, Laws 1938. At the same session, the Legislature adopted Chapter 353, now Section 2047, Code 1942, declaring described slot machines to be gambling devices. In Atkins v. State, 178 Miss. 804, 174 So. 52, this Court held that a slot machine played for a jackpot, operated by placing 5-cent coins in a slot and pulling a lever for which purchaser could get a piece of gum, or sometimes 10cents or 15cents, was a 'gambling' device under statute which made it unlawful to operate slot machines which did not indicate in advance what purchaser was to receive. General, Local and Private Laws, 1935, Extraordinary Session, Chapter 20, Secs. 204(f), 250; Section 821, Code 1930, now Section 2047, Code 1942. This case was recently cited by this Court in King v. City of Louisville, 42 So.2d 813, not yet reported in State Reports.
Nevertheless, the argument is very interestingly made by appellants that the Legislature never intended to make the possession for operation of slot machines as gambling devices a common nuisance, the essence of the contention being based on a history of a statute beginning with the Act of June 18, 1822, Chapter 60, Section 11 of Poindexter's Code, page 323. This statute, while along the same lines as Section 1073, Code 1942, is a criminal statute, but does not mention slot machines. They historically trace this particular statute through all the codes down to Section 2192, Code 1942. Just when slot machines were first possessed and used as gambling devices does not appear in the record, and this we have been unable to ascertain by independent research. As stated, the current version of the traced statute is now found in Section 2192, Code 1942, providing that 'If any person shall be guilty of keeping or exhibiting any game or gaming table commonly called A. B. C. or E. O. roulette or rowley-powley, or rouquetnoir, roredo, keno, monte, or any faro-bank, or other game, gaming table, or bank of the same or like kind or any other or description under any other name whatever, * * *', such person shall be subject to fine or imprisonment or both. This statute, therefore, makes it a criminal offense to possess many of the devices listed in Section 1073, while the latter makes such offense also a common nuisance, and subject to suppression by injunction.
From this statutory history, we gather that appellant seeks to establish two points. First, that since the statute just reviewed is a criminal statute, and provides punishment as for crime, as also does Section 2047, Code 1942, the State was not entitled to an injunction, because there was an adequate remedy at law; second, that the Legislature intended to legalize slot machines, or at least, never intended to bring them within the provisions of Section 1073, Code 1942.
As already stated, if appellants are wrong in the second point of view, and the Legislature did intend to embrace slot...
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