Peachey v. Boswell, 29840

• Decision Date: 05 May 1960
• Docket Number: No. 29840,29840
• Parties: , 89 A.L.R.2d 801 James H. PEACHEY and John D. Ward, d/b/a Ward-Peachey Vending Machine Co., in their own behalf and in behalf of all other persons, firms and corporations similarly situated, Appellants, v. Charles BOSWELL, Mayor of the City of Indianapolis, Robert Reilly, Chief of Police of the City of Indianapolis, Robert O'Neal, Sheriff of Marion County, Phillip L. Bayt, Prosecuting Attorney, 19th Judicial Circuit, Appellees.
• Court: Indiana Supreme Court

Page 48

167 N.E.2d 48

240 Ind. 604, 89 A.L.R.2d 801

James H. PEACHEY and John D. Ward, d/b/a Ward-Peachey

Vending Machine Co., in their own behalf and in

behalf of all other persons, firms and

corporations similarly

situated, Appellants, v. Charles BOSWELL, Mayor of the City of Indianapolis, Robert

Reilly, Chief of Police of the City of Indianapolis, Robert

O'Neal, Sheriff of Marion County, Phillip L. Bayt,

Prosecuting Attorney, 19th Judicial Circuit, Appellees.

No. 29840.

Supreme Court of Indiana.

May 5, 1960.

Royse, Travis, O'Brien & Hendrickson, Indianapolis, for appellants.

Jacobs & Jacobs, by Andrew Jacobs, Sr., Indianapolis, for appellee, Robert O'Neal, Sheriff.

Michael B. Reddington, Indianapolis, for appellee, Charles Boswell, Mayor.

Howard L. Whitecotton, Indianapolis, for appellee, Prosecutor Bayt.

BOBBITT, Judge.

Appellants brought this suit to enjoin appellees from interfering with their business of leasing, maintaining and operating, in Marion County, Indiana, mechanically operated, free replay pinball machines which record the right of replay and indicate the number of free games won.

The complaint alleges, inter alia, as follows:

'3. The aforesaid pin ball machines are not a mechanism by the operation of which a right to money, credits, deposits or other thing of value may be created in return for a consideration as a result of the operation of an element of chance, nor is it a mechanism, furniture, fixture or construction designed primarily for use in connection with gambling, professional or otherwise; that said machine's design and purpose is that of entertainment and amusement. Plaintiff further asserts that said pin ball machines are not gambling devices as described and defined in Chapter 265, Section 2, Paragraph 4 of the Acts of the General Assembly of 1955 but on the contrary said machines are specifically exempted from the provisions of said Act of the General Assembly under the provisions of sub-paragraph 3, Section 2 of said Act as aforesaid.

'4. The aforesaid pin ball machines operate by the player inserting a nickel (or in some models a dime) in the machine. This releases five balls which the player mechanically shoots one ball at a time into a field of plugs, dips, obstructions and holes, each of which registers a number or total sum of varying amounts. The course and direction of the balls may be influenced by the use of flippers in the machine, requiring the skill of the player to operate the flippers in the exact manner to produce the desired guidance of the ball. The greater the skill of the player, the greater total accumulated and the greater number of free games to which he shall be entitled. On attaining a fixed total of a definite sum from the playing of the five balls the player may receive from one to five or more free games, depending on the size of the total attained by him, and the skill of the player as aforesaid. Such free games are automatic and the machine automatically releases the trigger mechanism for the number of games won by the player, all of which must be immediately replayed. None of such machines gives any slug, credit, deposit, merchandise or anything of value whatsoever.'

The complaint further alleges that the entire chapter 265 of the Acts of 1955, as amended by chapter 205 of the Acts of 1957, being § 10-2330, Burns' 1959 Cum.Supp., violates certain provisions of the Constitution of the State of Indiana and the Constitution of the United States and is, therefore, invalid and void. It is not necessary to set out here the particular provisions of the State and Federal Constitutions to which appellants have specifically referred in their complaint, since those discussed in the argument section of appellants' brief will be considered in this opinion in due course.

The trial court issued a temporary restraining order covering 'mechanically operated pin ball machines, wheresoever located in Marion County, Indiana, with or without recording devices thereon.' (Our italics.) Subsequently, on appellants' motion for a change of venue from the county, the case was transferred to Boone Circuit Court. On July 10, 1957, defendants-appellees filed a motion to dissolve the restraining order, which was overruled by the regular judge of such court and the restraining order was continued in force as a temporary injunction. Appellees then filed a motion for change of judge. After his selection and qualification, trial was had on the question of a permanent injunction.

The trial court found, inter alia, as follows:

'16. That the injunction heretofore entered should be retained inasmuch as it applies to pinball machines which are exempted under the 1957 act, towit: those which do not contain an automatic recorder to record free games, but which mechanically award an immediate right of replay unrecorded.

'17. That the injunction should be modified and dissolved as to all other types of pinball machines which do contain such recorders of free games and that the defendants may seize the latter as contraband gambling devices without a warrant in public places and with proper warrant in private places.'

Judgment was entered which, omitting formal parts, is as follows:

'Wherefore, It Is Ordered, Adjudged And Decreed that the defendants are enjoined permanently from seizing pinball machines of the plaintiffs which do not have recording devices for registering free games, and the temporary injunction is modified and dissolved to the extent of allowing defendants to seize as contraband gambling devices those pinball machines so equipped with such recording devices for free games.'

The basic question here is: Did the Legislature have the power to outlaw as gambling devices, pinball machines which award anything other than an immediate and unrecorded right of replay?

First: Appellants assert that ch. 265 of the Acts of 1955, as amended by ch. 205 of the Acts of 1957, is unconstitutional and void as being an unlawful exercise of the police power, and rely upon, Kirtley v. State, 1949, 227 Ind. 175, 84 N.E.2d 712; State Board of Barber Examiners v. Cloud, 1942, 220 Ind. 552, 44 N.E.2d 972; Blue v. Beach, 1900, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am.St.Rep. 195; Railroad Comm. of Indiana v. Grand Trunk, etc., R. Co., 1913, 179 Ind. 255, 100 N.E. 852

Appellees contend that this question was decided against appellants in Tinder, Pros. Atty., et al. v. Music Op., Inc., 1957, 237 Ind. 33, 55, 142 N.E.2d 610.

The police power is exercised by the State to promote the health, safety, and welfare of the public. It "is the province of the legislature to decide when the exigency exists for the exercise of this power, but as to what are the subjects which come within it, is evidently a judicial question." Blue v. Beach, supra, 1900, 155 Ind. 121, 130, 56 N.E. 89, 92, 50 L.R.A. 64, 80 Am.St.Rep. 195; Railroad Comm. of Indiana v. Grand Trunk, etc., R. Co., supra, 1913, 179 Ind. 255, 259, 100 N.E. 852.

Blue v. Beach, supra, involved the constitutionality of a rule of the Board of Health of Terre Haute, Indiana, adopted pursuant to statutory authority providing that 'no persons shall be allowed or permitted to attend any public school within the limits of said city without first being vaccinated * * *.' This rule was upheld as an exercise of the police power in the interest of public health. This case lends no support to appellants' position here.

Railroad Comm. of Indiana v. Grand Trunk, etc., R. Co., supra, involved the constitutionality of an Act, Acts 1907, c. 205, requiring railroads operating in the State to install 'block systems for the control of trains.' Aside from the statement of some general rules pertaining to the exercise of the police power, this case also lends no support to appellants' position here.

State Board of Barber Examiners v. Cloud, supra, 1942, 220 Ind. 552, 44 N.E.2d 972, involved an Act, Acts 1941, c. 77, attempting to fix the prices which barbers could charge and the hours when their shops might be open for business. Appellants contend that the following language appearing at page 563 of 220 Ind., at page 977 of 44 N.E.2d,

'The declarations in Section 1, with respect to public health and sanitation, seem to us to have no substantial basis in fact and may have been inserted in an effort to lend color of constitutionality to a law that could not otherwise be sustained.'

'directly applies to' the Act here in question. However, it is not shown wherein such application lies.

If appellants are suggesting that there is no substantial basis for declaring the maintaining of pinball machines, which award anything other than an immediate and unrecorded right of replay, to constitute professional gambling, as defined in the Act, we think this question was answered to the contrary in Tinder, Pros. Atty., et al. v. Music Op., Inc., supra, 1957, 237 Ind. 33, 142 N.E.2d 610.

We have no quarrel with the statement from Kirtley v. State, supra, 1949, 227 Ind. 175, 181, 84 N.E.2d 712, as quoted on pages 91, 92, of appellants' brief, as follows:

''The limit to such legislation has been well stated thus: 'If the law prohibits that which is harmless in itself, or requires that to be done which does not tend to promote the health, comport, morality, safety or welfare of society, it will be an unauthorized exercise of power, and upon proper presentation it is the duty of the courts to declare it [such a law] void."'

However, we cannot concur in appellants' statement that '[i]f pinball machines with recorders are harmful to the public, then, of necessity, such machines without recorders are harmful.'

In Tinder, Pros. Atty., et al. v. Music Op., Inc., supra, 1957, 237 Ind. 33, at page 55, 142 N.E.2d 610, at page 621, this court said:

'During the pendency of this case, subsection (4) of Section 2 of the Acts of 1955 § 10-2330, supra, was amended by House Bill 128, Acts 1957, which added the italicized words to the provision of the 1955 Act, as follows: ...