Westerhaus Co. v. City of Cincinnati, 34628

• Decision Date: 06 June 1956
• Docket Number: No. 34628,34628
• Citation: 135 N.E.2d 318,165 Ohio St. 327
• Parties: , 59 O.O. 428 WESTERHAUS CO., Inc., Appellant, v. CITY OF CINCINNATI et al., Appellees.
• Court: Ohio Supreme Court

Page 327

165 Ohio St. 327

135 N.E.2d 318, 59 O.O. 428

WESTERHAUS CO., Inc., Appellant, v. CITY OF CINCINNATI et al., Appellees.

No. 34628.

Supreme Court of Ohio.

June 6, 1956.

Syllabus by the Court

1. Whether an action is legal and, therefore, appealable on questions of law only or equitable and, therefore, appealable on questions of law and fact is determined from the pleadings and the issues made thereby.

2. Where a petition indicates that the primary or paramount issues raised are equitable and any other relief sought is merely incidental to the equitable relief sought, the case is a 'chancery case.'

3. An action may be a 'chancery case' even though declaratory judgment relief is sought therein.

4. Where an owner of pinball machines proposes to keep or exhibit such machines for gain and where each of those machines is a gambling device or machine within the meaning of those words as used in Section 13066, General Code (now Section 2915.15, Revised Code), a petition of such owner, seeking equitable relief to protect such machines and seeking a declaratory judgment setting forth the rights and duties of such owner with respect to such machines, will be dismissed.

5. In general, the elements of gambling are payment of a price for a chance to gain a prize.

6. Where the operator of a pinball machine puts a nickel into the machine to operate it, he thereby pays the price which is necessary in order to have the operation of such a machine constitute gambling.

7. The right, to replay a nickel pinball machine, if a sufficient score is attained, by merely pushing a button and without using another nickel, may represent the prize which is necessary in order to have the operation of such a machine constitute gambling.

8. In order to have a lottery, the determination as to who gets a prize or how much of a prize he gets must be dependent at least predominately upon the element of chance.

9. The term 'gambling' includes a lottery but is broader and may encompass more than the term 'lottery.'

10. Although there can probably be no gamble upon something certain, there can be a gamble on the happening of an event, the happening of which may be largely dependent upon skill, even though dependent upon the skill of one or all of those participating in the gamble.

11. The element of chance which is necessary in order to have gambling can be supplied by having the happening of some future event determine who gets a prize or how much he gets, at least where such event is not certain to happen and even though the happening of such event is dependent predominately upon skill.

12. Where it is necessary to put a nickel into a pinball machine in order to operate it, and where the operation of such machine may enable the operator to replay the machine by merely pushing a button and without a further payment for such replay if the operator obtains a sufficient score, and where the operation of such machine will not certainly result in attaining such sufficient score, such operation constitutes gambling and such machine is, within the meaning of Section 13066, General Code (now Section 2915.15, Revised Code), a 'gambling machine or device' per se, notwithstanding that the operation of such machine to attain such sufficient score is predominately dependent on the skill of the operator.

This action was instituted in the Common Pleas Court of Hamilton County on September 27, 1951, by the filing of a petition by plaintiff in which it is alleged that 'plaintiff * * * is engaged in lawful business including the selling, leasing, renting, operating or exhibiting of pinball machines in * * * Cincinnati and that it has registered itself with' that city 'and obtained licenses' under its ordinances; that plaintiff 'is the owner of numerous and various amusement devices commonly known as 'pinball machines' of great * * * value to * * * plaintiff and located with various 'exhibitors" who 'have likewise * * * obtained licenses' under those ordinances; that defendants, the city and certain of its officers, 'have declared their intention and purpose to confiscate and destroy * * * property of great value belonging to this plaintiff without court order therefore and without due process of law' and 'declared' their 'intention' to 'seize and destroy said types of amusement devices * * * wherever found regardless of the issuance of licenses and permits by the city' and 'to arbitrarily revoke and cancel distributors' licenses and exhibitors' licenses' and 'to refuse licenses for the distribution or exhibition of said amusement devises of this plaintiff; * * * that the action or actions contemplated and declared by these defendants * * * is based upon the interpretation of certain ordinances of the city * * * and certain statutes of the state'; that plaintiff 'is a person whose rights, status and legal relations are affected by the status of Ohio and municipal ordinances of the city * * * and that questions of the construction and validity thereof affect the property rights of the plaintiff and the franchises or licenses now held by this plaintiff * * * that the contemplated and declared future actions of the defendants will cause irreparable damage to the property rights and franchises of the plaintiff and that the plaintiff has no adequate remedy at law * * * that the defendants * * * unless restrained * * * threaten and contemplate immediate seizure of the property of the plaintiff, and immediate confiscation and destruction thereof without due process of law * * * that unless restrained * * * defendants * * * threaten and contemplate the arbitrary and unlawful refusal of permits or licenses to this plaintiff * * * that unless restrained * * * defendants * * * threaten and contemplate the arbitrary and unlawful revocation of licenses and permits of this plaintiff and the arbitrary and unlawful revocation of licenses of the exhibitors using or operating the equipment and amusement devices of this plaintiff'; and that 'all of which contemplated and threatened actions * * * would be of great detriment to the plaintiff and cause the plaintiff great property loss and loss to the plaintiff of the right to engage in lawful occupation for which plaintiff has no adequate remedy at law.'

The prayer of the petition reads so far as pertinent:

'Wherefore, plaintiff prays the court for an order * * * restraining and forbidding the defendants * * * from:

'1. Seizing or confiscating the licensed amusement devices of this plaintiff.

'2. Confiscating or destroying the licensed amusement devices of this plaintiff by means other the orders or directions of a court of law.

'3. Refusing licenses and/or permits to this plaintiff for the distribution or exhibition of its amusement devices upon proper application therefor.

'4. Revoking or cancelling the licenses and/or permits of plaintiff and/or the licenses and permits of exhibitors using the equipment of this plaintiff by means other than the order or direction of a court of law.

'Plaintiff further prays the court for an order and judgment of the court setting forth the rights and duties of the plaintiff and these defendants under the laws of the state * * * and the ordinances of the city * * * and for a declaratory judgment of this court on the construction of and validity of the statutes of the state * * * and the ordinances of the city * * * as they apply to gaming, the operation, exhibition and distribution of amusement devices and the permits and licenses for same.

'Plaintiff further prays that in the determination of this cause the temporary restraining order prayed for in its petition be made permanent and binding on these defendants * * * and for all other relief legal or equitable to which plaintiff may be entitled in this cause.'

To this petition defendants filed an answer generally denying most of the allegations of the petition and stating in part 'that the distribution and exhibition of pinball machines in the city * * * is governed by the provisions of chapter 731 of the code of ordinances'; 'that section 731-9 * * * provides' that "only machines operated exclusively for the amusement provided by the operation thereof shall be licensed'; * * * that Section 731-21 * * * provides' that "should any distributor or exhibitor violate or fail to comply with any of the provisions of this chapter it shall be the duty of the city treasurer to revoke his license," and that "in case of the revocation of an exhibitor's license, the licenses of all machines operated by him or on his premises shall be revoked"; 'that Section 731-23 * * * provides' that "if any pinball machine is used as gambling device or is otherwise operated contrary to the provision of the laws of the state of Ohio, or of this chapter, such machine may, in the discretion of the city manager, be seized and destroyed as in the case of gaming devices"; and 'that it is the duty of defendants to enforce said provisions and that pinball machines belonging to plaintiff are being operated as gambling devices contrary to the ordinances of the city * * * and the laws of the state.'

Defendants pray 'that the petition be dismissed.'

Thereafter, the cause came on for trial before the Common Pleas Court of Hamilton County which made an order perpetually enjoining defendant 'from

'(1) seizing or confiscating the licensed amusement devices of plaintiff;

'(2) confiscating and destroying the licensed amusement devices of plaintiff; by means other than the orders or directions of a court of law;

'(3) refusing licenses and/or permits to plaintiff for the distribution or exhibition of its amusement devices, upon application therefor;

'(4) revoking or cancelling the licenses and/or permits of plaintiff and/or the licenses or permits of exhibitors exhibiting the amusement devices of plaintiff by means other than the orders or direction of a court of law.'

That order does contain the following additional provision:

'Nothing in this order...