Sowma v. Parker
| Decision Date | 04 November 1941 |
| Citation | 22 A.2d 513,112 Vt. 241 |
| Parties | ABRAHAM SOWMA ET AL. v. ALBAN J. PARKER, ATTORNEY GENERAL, ET AL |
| Court | Vermont Supreme Court |
October Term, 1941.
Pinball Machines.---1. Pinball Machines Unlawful After September 30 1941, No. 190 of Acts of 1941 Repealed Part II of No. 38 of the Acts of 1937.---2. Lack of Saving Clause.---3. Repeal by Implication.---4. Repeal by Later Act.---5. Prohibition Revoking License.---6. Statutory Construction Revocation.---7. Licenses Under Part II of No. 38 of the Acts of 1937.---8. Part II of No. 38 of the Acts of 1937 Exercise of Police Power.---9. Modification of Policing Laws.---10. Pinball Machine Licenses Like Liquor Licenses.---11. Revocability of Licenses Under Part II of No. 38 of the Acts of 1937.---12. No. 190 of the Acts of 1941 Exercise of Police Power.---13. Detriment of Pinball Machines.---14. Revocation of Pinball Machine Licenses Without Refund.---15. Legislative Against Judicial Policy.---16. Police Power as Sovereignty.---17. Police Power in People, Art. 5, Chap. 1 of Vt. Constitution.---18. Police Power in States.---19. Property Held Subject to Police Power.---20. Police Power under Fourteenth Amendment to U.S. Constitution.---21. Prohibition of Possession of Pinball Machines.---22. Knowledge Licenses Revocable.---23. Ample Notice of License Revocation.---24. Pinball License Repeal Not Violate Art. 9 Chap. 1, of Vt. Constitution.---25. Pinball Revocation Not Violation of Art. 2, Chap. 1, Vt. Constitution.---26. Confiscation of Pinball Machines, Art. 4, Chap. 1, Vt. Constitution, P. L. 8699 Sec. 3 of No. 191 of the Acts of 1941, P. L. 9698.---27. Scope of Art. 15, Chap. 1, of Vt. Constitution.
1. No. 190 of the Acts of 1941, repealing the so-called pinball licensing act (Part II of No. 38 of the Acts of 1937), makes it unlawful to have possession of pinball machines after September 30, 1941.
2. That there is no saving clause in an act prohibiting the use or possession of machines indicates that there is no intention thereby to preserve existing licenses permitting such possession and use.
3. Repeals by implication are not favored.
4. A later statutory act repeals a former when the two are so repugnant that they can not stand together.
5. The unqualified prohibition of possession of a machine is so repugnant to the right to own or operate the same by virtue of a license or otherwise, that the prohibitory statute shows the legislative intent to revoke any prior licensing act as of the date when the prohibitory act takes effect.
6. Intention to revoke another statute must be determined by the wording of the statute in question.
7. Licenses granted pursuant to Part II of No. 38 of the Acts of 1937 constituted merely permits to own and use certain machines under certain conditions and thus make lawful what would otherwise have been illegal but did not constitute contracts therefor.
8. The nature of the pinball licensing act (Part II of No. 38 of the Acts of 1937), and the conditions and restrictions imposed on the operation of licensed machines was such that it was enacted in pursuance of the police power of the State.
9. Pinball licenses having been granted under the police power of the State, they could at will be modified or revoked by subsequent legislation enacted in pursuance of that power without violating any constitutional provision forbidding enactment of laws impairing the obligations of contracts or the taking of property without due process of law.
10. There can be no distinction in principle between the granting and revocation of liquor licenses and those concerning pinball machines.
11. Licenses in the nature of permits, like pinball licenses granted pursuant to Part II of No. 38 of the Acts of 1937, are revocable even though more than a nominal amount was paid as the license fee.
12. It is apparent that the act repealing the pinball licensing act and prohibiting the use and possession of such machines was passed as a police measure in order to promote the morals and general welfare of the citizens of the State.
13. It has become a matter of common knowledge that the results of playing the pinball machines are iniquitous and detrimental, both financially and otherwise, to the players and often to those dependent upon them.
14. Licenses such as those for the possession and use of pinball ma chines granted for a definite period may be revoked during the period and the possession and use of the machine thereafter prohibited without refund of any part of the license fee.
15. It is a matter of legislative, not judicial policy, whether to return part of a license fee because of the revocation of a license during the period for which the fee was paid.
16. Police power is an attribute of sovereignty---it is sovereignty itself.
17. Police power is given to the people of the State by Art. 5 of Chapter 1 of the Vermont Constitution.
18. Apart from a written constitutional provision, the police power is inherent in the states.
19. All property is held subject to general regulation by the Legislature under its police power for the common good and general welfare.
20. Police power legislation does not come within the Fourteenth Amendment to the United States Constitution unless it is apparent that its real object is not to protect the community, or to promote the general well being, but, under the guise of police regulation, to deprive the owner of his property without due process of law.
21. There is nothing unreasonable or arbitrary in the provisions of No. 190 of the Acts of 1941 providing that the possession of pinball machines should become illegal at a specified time in the future.
22. When licensees under pinball licensing act (Part II of No. 38 of the Acts of 1937) took out their licenses, they must be taken to have known that the Legislature could and might revoke the licenses at any time.
23. An act passed March 14th revoking existing licenses within the police power of the State with revocation to take effect September 30th following, gives ample notice in time to dispose of the licensed machines and is not the taking of property without due process of law.
24. No. 190 of the Acts of 1941 repealing the pinball licensing act, Part II of No. 38 of the Acts of 1937, does not infringe licensees' property rights in the machines licensed in violation of Art. 9 of Chapter I of the Vermont Constitution.
25. The exercise of police power through revocation of pinball licenses can not be construed as the taking of private property for public use without the payment of compensation in violation of Art. 2 of Chapter 1 of the Vermont Constitution.
26. Art. 4 of Chapter 1 of the Vermont Constitution is not violated by the confiscation provisions of P. L. 8699 Sec. 3 of No. 191 of the Acts of 1941 of machines seized by virtue of P. L. 9698.
27. Art. 15 of Chapter 1 of the Vermont Constitution does not apply to a suit seeking to enjoin the attorney general and all other prosecuting officers from enforcing No. 190 of the Acts of 1941 repealing the pinball licensing act and making unlawful the possession or use of pinball machines.
BILL OF COMPLAINT against Alban J. Parker, Attorney General, Reginald T. Abare, State's Attorney of Washington County, and Henry A. Milne, Grand Juror of the City of Barre, by Abraham Sowma alleging the unconstitutionality of No. 190 of the Acts of 1941. After temporary restraining order was granted by Washington County Court of Chancery, Adams, Chancellor, John G. Fenton, d.b.a. Vermont Novelty Company, The Rutland Novelty Company, Inc., Walter H. Noyes and Edson C. Goodrich, Frank Brassaw, Arthur Gerhard, I. M. Burman, S. Caslani, Frank Ward, Eli Greenfield and James Clarey filed their petition to intervene with the plaintiff. Defendants demurred to original bill and intervenors' petitions. Demurrer overruled and injunction continued. Other facts appear in the opinion.
The order of the chancellor overruling the demurrer is reversed, the bills of complaint are adjudged insufficient, the same are dismissed with costs and the injunction is dissolved.
Alban J. Parker, Attorney General, Reginald T. Abare, State's Attorney of Washington County, and Henry A. Milne, Grand Juror of the City of Barre, pro se.
Finn and Monti for plaintiff.
Jones & Jones, Frederick J. Fayette and Joseph S. Wool for intervenors.
Present:: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This case is here on defendants' exceptions to an order of the chancellor restraining them, in effect, from enforcing the provisions of No. 190 of the Acts of 1941.
By P. L. 8696 and 8697 all machines whether known as slot machines, or otherwise, which distributed money or other things of value as the result of some element of chance and thus provided a means for the winning or losing of money were made illegal and their possession was prohibited.
By Part II of No. 38 of the Acts of 1937 the above sections were so amended as to legalize, by the granting of licenses therefor, the ownership and operation of such machines when the result of their operation depended upon a substantial measure of skill on the part of the one then using the machine. An annual license tax of $ 200.00 was imposed and in addition thereto an annual machine tax of $ 25.00 and an annual location tax of $ 5.00. It was also provided that a license granted under the act should expire December 31 of the year in which it was issued. It was further provided that no license should be issued for the installation of a machine within 300 feet of a school building and children under the age of sixteen years were forbidden to play such licensed machines. A penalty was provided for the violation of the act.
Without...
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