Salt Lake City v. Doran

• Decision Date: 31 March 1913
• Docket Number: 2410
• Citation: 42 Utah 401,131 P. 636
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. DORAN

131 P. 636

42 Utah 401

SALT LAKE CITY v. DORAN

No. 2410

Supreme Court of Utah

March 31, 1913

Rehearing Denied April 21, 1913.

APPEAL from District Court, Third District; Hon. F. C. Loofbourow Judge.

B. F Doran was convicted of violating a gambling ordinance of Salt Lake City and he appeals.

AFFIRMED.

Powers and Marioneaux for appellant.

APPELLANT'S POINTS.

A valuable consideration must be paid, directly or indirectly, for a chance to draw a prize by lot, to bring the transaction within the class of lotteries or gift enterprises that the law prohibits as criminal. (Buckalew v. State, 62 Ala. 334, 34 Am. Rep. 22; State v. Bryant, 74 N.C. 207; Commonwealth v. Wright, 137 Mass. 250, 50 Am. Rep. 306; State v. Clarke, 33 N.H. 329, 66 Am. Dec. 723; State v. Shorts, 32 N. J. L. 398, 90 Am. Dec. 668; Wilkinson v. Gill, 74 N.Y. 63, 30 Am. Rep. 264; Governors v. American Art Union, 7 N.Y. 228; State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532; Hull v. Ruggles, 59 N.Y. 424; Thomas v. People, 59 Ill. 160; United States v. Olney, 1 Deady, 461; Yellowstone Kit. v. State, 88 Ala. 196, 16 Am. St. Rep. 38).

The ordinance plainly includes all use of slot machines in a transaction in the nature of a lottery, whether a consideration is paid for the chance or not; that it is thus too broad, and the ordinance is wholly void. (Second Municipality v. Morgan, 1 La. Ann. 111; Chamberlain v. City of Hoboken, 38 N. J. Law (9 Vroom), 110; State v. Webber, 107 N.C. 962, 12 S.E. 598; Mathews v. People, 67 N.E. 28, 202 Ill. 389.)

H. J. Dininny and Aaron Myers for respondent.

RESPONDENT'S POINTS.

A city may punish as a misdemeanor an offense which a state punishes as a felony (People v. Tanrahan, 4 L. R. A. (Mich.) 757; Seattle v. McDonald, 91 P. 952 (Wash.) ; McQuillen on Municipal Corporations, secs. 877, 878; Dillon on Municipal Corporations (5 Ed.), secs. 632 and 63; Cooley on Constitutional Limitations, secs. 188, 199, 239, and 596.)

All of the statutes of Utah relating to gambling and lotteries, and authorizing municipalities to deal with these offenses, are to be read in the light of section 28, article 6, of the Constitution of Utah, which is as follows: "The legislature shall not authorize any game of chance, lottery or gift enterprise under any pretense, or for any purpose." But independently of any constitutional provision, it is almost universally held that where specific authority is granted by a statute to municipalities to legislate concurrently with the state in the regulation of a general and diversified form of crime, such as gambling, the municipality is not confined to the particular varieties of the offense which may be enumerated in the statute making it a crime against the state. (McClain on Criminal Law, sec. 63; Greenville v. Remmis, 50 L. R. A. (S. C.) 725; Ex parte Hoffman, 99 P. 517; Re Stegenga, 61 L. R. A. (Mich.) 763; Brownville v. Cook, 4 Neb. 1; Rossberg v. State, 111 Md. 394; Elsner Bros. v. Hawkins, 73 S. E. (Va.) 479; Talladega v. Fitzpatrick, 32 So. 252 (Ala.) ; Linneus v. Dusky, 19 Mo.App. 20; Seattle v. Chin Let, 52 P. 324 (Wash.) ; State v. Flint, 63 Conn. 248, 28; A. 28; McInerney v. Denver. 29 P. 516; Blodget v. McVey, 108 N.W. 239; Pekin v. Smelzel, 21 Ill. 464; McPherson v. Chebanse, 28 N. E. (Ill.) 454; State v. Newman, 71 N. W. (Wis.) 438; State ex rel. City of Butte v. District Court, 95 P. 841 (Mont.) ; May v. Craig, 109 Pac. (Cal. App.) 842; Chicago v. Union Ice Cream Co., 96 N. E. (Ill.) 872.)

It is perfectly clear from the facts stated in the stipulation that the transaction involved in the operation of the machine is one inseparable whole; that the patron purchases with his nickel not only the right to a cheap cigar if he chooses to avail himself of it, but also the right to acquire additional cigars of a higher value by the chance operation of the machine. As the Supreme Court of the United States said in the case of Horner v. United States, 147 U.S. 449: "The element of certainty goes hand in hand with the element of lot or chance, and the former does not destroy the existence or the effect of the latter." (Lang v. Merwin, 99 Me. 486, 59 A. 1021; Meyer v. State, 112 Ga. 20, 51 L. R. A. 496; Lytle v. State, 100 S.W. 1160 (Tex.) ; State v. Vasquez, 49 Fla. 126; Loiseau v. State, 114 Ala. 34; Meeks v. State, 74 S.W. 910 (Tex.) .)

To the effect that slot machines are obnoxious to laws and ordinances against the particular form of gambling known as a lottery are the cases of New Orleans v. Collins, 27 So. 532 (La.) ; State v. Vasquez, 38 So. 830 (Fla.) ; Loiseau v. State, 22 So. 138 (Ala.) ; Meyer v. State, 51 L. R. A. (Ga.) 496.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

Appellant was convicted in the city court of Salt Lake City, and, upon appeal to the district court of Salt Lake County, was again convicted for the violation of a certain ordinance of said city. The appeal to this court is based upon the claim that, for the reasons hereinafter stated, the ordinance in question is invalid. The portions of the ordinance that are deemed material are as follows:

"Section 1. All gambling and gaming of every kind and description, by playing at cards, dice, faro, roulette, keno, poker, slot machines, devices known as trade machines, or any like machines or devices by whatever name known, or any other contrivance or devices by or which money, merchandise or other thing of value may be staked, bet or hazarded, won or lost, upon chance, or at any other game or scheme of chance whatever, . . . for money or other property or thing of value within Salt Lake City, is hereby declared to be unlawful.

"Sec. 6. It shall be unlawful for any person to keep or maintain any slot machine, or trade machine, or any like machine or device, for the purpose of suffering or permitting other persons to play at or with the same for money or anything of value.

"Sec. 7. It shall be unlawful for any person, either as owner, lessee, agent, employee, mortgagee, or otherwise, to operate, keep, maintain, rent, use, or conduct, within the City of Salt Lake, any clock, tape, slot, trades or card machines, or any other machine, contrivance or device upon which money is staked or hazarded upon chance, or into which money is paid, deposited or played, upon chance, or upon the result of the action of which, money or any commodity or merchandise, or any other article or thing of value is staked, hazarded, won or lost upon chance.

"Sec. 8. It shall be unlawful for any person, either as owner, lessee, agent, employee, mortgagee or otherwise, to operate, keep, maintain, rent, use or conduct within the City of Salt Lake any machine, contrivance, appliance or mechanical device upon the result of the action of which money or any commodity, merchandise or other valuable thing is staked or hazarded, and which is operated or played by placing or depositing therein any coins, substitutes for coins, checks, slugs, balls or other article or device, or in any other manner, and by means of the action whereof, or as a result of the operation of which, any merchandise, money, representative or article of value, check or token redeemable in, or exchangeable for money, or any other thing of value is won or lost, or taken from or obtained from such machine, when the result of the action or operation of such machine, contrivance, appliance or mechanical device is dependent upon hazard or chance."

The ordinance became effective March 1, 1912, and for each violation thereof imposes a fine not exceeding fifty dollars or imprisonment not exceeding thirty days in the city jail, or both such fine and imprisonment.

The complaint filed against appellant was based on sections 7 and 8 of said ordinance, which sections we have given in full. The material part of the complaint is as follows: That on the 16th day of March, 1912, appellant, in a certain room in Salt Lake City, did "unlawfully keep, maintain, use, and conduct five certain machines, known as trade or card machines, being then and there contrivances and devices into which money was and is paid, deposited, and played upon chance, and, upon the result of the action of said machines, cigars and merchandise, then and there of value, was staked, hazarded, and won or lost upon chance, which said trades machines then and there were gambling and gaming devices, contrary to the provisions of an ordinance of said city to prohibit gambling and gaming enacted by the honorable board of commissioners of said city and in force on and after March 1, A. D. 1912."

The case was submitted to the district court upon an agreed statement of facts which are substantially as follows: That at the time the complaint was filed, appellant was the owner of a certain bar and cigar stand in Salt Lake City; that he was at that time engaged in the retail liquor and cigar business, and in connection therewith "kept, maintained, used, and operated five machines, known as trade or card machines," in the interior of which there was a contrivance consisting of five wheels or cylinders about one inch wide, all of which revolved upon independent axes; that upon each one of said wheels or cylinders are fastened eleven small playing cars, making fifty-five in all, being three cards in excess of a common deck of playing cards; that said wheels and cards are in a small box or cabinet of which only a certain space is open through which a certain number of the cards are visible when the wheels stop revolving; that, in case a nickel is dropped into a certain slot of said cabinet, all of the wheels or cylinders, with the cards thereon, are, by a concealed mechanism or device, set in motion, and each wheel revolves upon its own axis, so that, when all of the wheels stop, just five of the cards appear in a...