Pepple v. Headrick

• Citation: 128 P.2d 757,64 Idaho 132
• Decision Date: 18 August 1942
• Docket Number: 7013
• Parties: R. E. PEPPLE and R. L. GRAVES, Appellants, v. DON HEADRICK, Sheriff of Ada County, Idaho; JAMES W. BLAINE, Prosecuting Attorney for Ada County, Idaho; and GEORGE HASKIN, Chief of Police of Boise City, Idaho, Respondents
• Court: United States State Supreme Court of Idaho

128 P.2d 757

64 Idaho 132

R. E. PEPPLE and R. L. GRAVES, Appellants, v. DON HEADRICK, Sheriff of Ada County, Idaho; JAMES W. BLAINE, Prosecuting Attorney for Ada County, Idaho; and GEORGE HASKIN, Chief of Police of Boise City, Idaho, Respondents

No. 7013

Supreme Court of Idaho

August 18, 1942

GAMING-GAMBLING DEVICES-PINBALL MACHINES-STATUTES, CONSTRUCTION OF.

1. Under the "ejusdem generis" doctrine, where general words of the statute follow an enumeration of persons or things, the general words will be construed as meaning persons or things of like or similar class or character to those specifically enumerated.

2. The rule of "ejusdem generis" is merely a rule of construction and does not warrant a court in confining the operation of a statute within narrower limits than intended by the legislature.

3. In construing statute making it a misdemeanor to operate certain enumerated gambling devices or "any other device" employed in gambling, the "ejusdem generis" doctrine was inapplicable, and the prohibition of the statute was not limited to devices similar to those enumerated. (I.C.A., sec. 17-2301; Const., art. 3, sec. 20.)

4. Pinball machines, which were operated by placing nickel in coin slot and pushing slot forward, which released metal ball, and by releasing plunger against the ball, and which automatically returned to player specified number of nickels if he was successful in lodging ball in proper hole, were "gambling devices" and their seizure and confiscation would not be restrained. (I.C.A., sec. 17-2301; Const., art. 3, sec. 20.)

5. Payment of taxes on or licensing of a gambling machine or device furnishes no justification for its operation in violation of anti-gambling laws. (I.C.A., sec. 17-2301; Const., art. 3, sec. 20.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action for injunction against defendants, restraining them from seizing, confiscating, and destroying certain property of plaintiffs. Judgment for defendants. Affirmed.

Order and judgment affirmed. Costs awarded in favor of respondents.

Willis C. Moffatt, Hamer H. Budge and Fred M. Taylor for appellants.

The property of appellants which respondents threaten to seize confiscate and destroy has never been, and is not now illegal under the gambling statutes of the State of Idaho (P. 61, S. L. of 1871; C. 9, Rev. Stat. of 1887; P. 163, S.L. of 1893; P. 53, S.L. of 1897; P. 389, S.L. of 1899; C. 116 S.L. of 1921; Sec. 17-2301, I.C.A.)

Such construction has been placed upon the gambling statute by the Legislature and chief executive of this state. (Senate Bill No. 87 of the Idaho State Legislature, 24th Session, 1937; Veto Message, dated February 25, 1937, on file in office of Secretary of State; Journal of the State Senate of Idaho Legislature, 24th Session, 1937, at pages 179, 277 and 457; Journal of the House of Representatives of Idaho Legislature, 24th Session, 1937, at page 400.)

The construction of a statute by the Legislature and chief executive should have great weight in determining the meaning of such statute. (59 C.J. 1030; Bank of United States v. Halstead, 10 Wheat 51, 63; 6 L.Ed. 264; State v. Frear (Wis.), 120 N.W. 216; In re Opinion to Governor (Fla.), 107 So. 366.)

Statutes which are in their nature penal are strictly construed and should not be held to include anything not clearly and plainly within the scope of their provisions. (59 C.J., sec. 660, p. 1113; In re Dampier, Supra; State v. Choate, 41 Idaho 251; In re Moore, 38 Idaho 506.)

It is a universally recognized rule of construction that where a statute specifies certain things upon which it is to operate or forbids certain things, it is to be construed as excluding from its effect all those not expressly mentioned. (59 C.J., sec. 582, p. 984; 25 R.C.L., sec. 229, p. 989; State v. Gossett, 113 P.2d 415; Peck v. State of Idaho, 120 P.2d 820.)

Where general words such as "other" or "any other" follow an enumeration of particular classes, such words are construed as applicable only to things of a like kind or nature to those enumerated. (59 C.J., sec. 581, p. 981; In re Hull, Supra; Denver v. Taylor (Colo.), 292 P. 594, 73 A.L.R. 833; Ex parte Williams (Cal.), 87 P. 565; Kirkley v. Portland Electric Power Co., 298 P. 237.)

Kenneth O'Leary, M. Oliver Koelsch, James W. Blaine and C. Stanley Skiles for respondents.

To determine the scope of any legislation, its objects and purposes may be inquired into. (State v. Hull, 18 Idaho 475; Mullen v. Moseley, 13 Idaho 457.)

To find the intention of the legislature and scope of the legislation, the title of any act may be restored to. (State v. Mead, 61 Idaho 449 at 453; State v. Paulsen, 21 Idaho 686 at 694.)

Sec. 17-2301, I.C.A., prohibits gambling generally when done with cards, dice, or any other device. (People v. Carroll (Cal.), 22 P. 129; Salt Lake City v. Doran (Utah), 131 P. 637.)

The doctrine of ejusdem generis refers to a similarity of character or substance and not to a similarity of form. (State v. Hull, supra.)

Games necessarily included by implied mention will be prohibited equally with those specifically named. (Grafe v. Delgado (N. Mex.), 228 P. 601; People v. Carroll, supra; Salt Lake City v. Doran, supra.)

AILSHIE, J. Givens, C. J., Morgan and Holden, JJ., and Porter, D. J., concur. Budge, J., did not participate and Porter, District Judge, was called in his stead.

OPINION

AILSHIE, J.

This action is brought by appellants for a permanent injunction, to restrain respondents from seizing, confiscating, destroying, or interfering with certain property of appellants, commonly known as "pinball machines." Appellants (plaintiffs) allege ownership of certain machines, the payment of federal, state and county taxes, and license fees to Boise City, the distribution of the machines to divers persons within the city and county, "to be operated . . . . for the enjoyment of the public"; that they are lawful property and not operated contrary to any state law or city ordinance; that unless respondents are enjoined, appellants will be deprived of their property and livelihood without due process of law.

Application was made to the trial court for a temporary injunction against respondents, restraining them from interfering with these machines and the use thereof. A show cause order thereupon issued. Answer was filed by defendants, admitting seizure, confiscation, and possession of two pinball machines belonging to appellants, but alleging that the machines were maintained in violation of, and are prohibited by, the provisions of title 17, chap. 23, I.C.A., sec. 17-2301 of which is as follows:

"Every person who deals, plays or carries on, opens or causes to be opened, or who conducts, either as owner, employee, or lessee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, Indian stick game, or any game played with cards, dice, or any other device, for money, checks, credit or any other representative of values, is guilty of a misdemeanor and is punishable by fine not less than $ 200, or imprisonment in the county jail not less than four months."

The machines or devices are described as follows:

"The cabinets of said pinball machines have a flat horizontal top in the shape of a table, mounted upon a base with one end of the table, at a slightly lower elevation than the other.

"The game is played on the top of said table by the use of a plunger which propels a metal ball to the top of said table from which point the ball rolls to the lower end, unless it falls into one of a number of holes in the surface of said table. There are four series of holes numbered from 1 to 7 inclusive, which numbers correspond to numbers lighted on a backboard set above the end of the table.

"The game is played by placing a nickel in a coin slot located on the lower left-hand corner of the table and by pushing the slot forward, a metal ball drops into a receptacle from which receptacle it may be elevated to the playing surface of the board by the player, so that the ball is in a channel which extends the length of the right-hand side of said table and directly in front of the plunger; pushing the coin slot forward also causes one or several numbers of the backboard to light; and the object of the game is then for the player to shoot the metal ball into one of the holes on the table which corresponds with a number or numbers which may be lighted on the backboard. Pushing the coin slot forward also indicates the odds which the player will receive in the event he is successful in shooting the ball into a proper hole. The ball is shot by pulling the plunger back along a scale, marked by degrees, and then releasing the plunger. The distance from the ball at which the plunger is released determines the speed which the ball will have when propelled from the channel onto the playing surface on the table. In addition to the holes on said table, there are metal springs and pins at various places between the holes. If the player is successful in lodging the ball in a hole which corresponds to one of the numbers lighted on the backboard, the machine automatically returns to him the number of nickels shown in the list of odds on the backboard, and if not successful in lodging the ball in one of the said holes he receives nothing."

Respondents prayed that the machines be adjudged gambling devices; that a restraining order be denied and the cause dismissed.

January 7, 1942, the matter came on for hearing before the court on demurrer to the answer. January 19, 1942, the trial judge rendered his decision and entered an order, holding, inter alia, as follows:

"The fact that games change in name and style, that inventive...