
    Snyder, d. b. a. Superior Confection Co., v. City of Alliance et al.
    (Decided June 16, 1931.)
    
      Messrs. Hart, Druhenbrod & McHenry, for appellant.
    
      Mr. Harry 8. Wyhoff, for appellees.
   Sherick, P. J.

Tke plaintiff appeals this action to this court and seeks herein an injunction restraining the city of Alliance and its officers from seizing, taking possession of, confiscating or molesting any of the appellant’s mint-vending machines, belonging to him or operated by his lessees, when such are operated for the purpose and in the manner that will hereafter be developed by a recitation of that portion of the agreed and stipulated facts which seems to us pertinent to a solution of the question presented.

The appellant manufactures a certain slot or mint-vending machine, known as a “Superior Automatic Salesman.” He also manufactures candy mints for this machine, which are automatically sold by it. The plaintiff has leased a considerable number of these machines to merchants of the city of Alliance for use in their respective places of business for the advertisement and sale of appellant’s mint confections. These machines are kept filled with mints, and each has thereon an automatic coin device for return of the patron’s nickel if the machine at any time is empty of mints. It is agreed that the mints are of standard quality and value.

It is stipulated that the merchants contract with the plaintiff that they will not redeem any tokens or checks obtained from these vending machines by customers, for either cash or merchandise, and that, if a lessee violates this agreement, the appellant may terminate the contract of lease and repossess the machine.

The. manner and method of operating these machines is as follows: By the deposit by the patron of a 5-cent piece in a slot therein, and by then pulling a lever and turning a knob, there is released into a tray, one, and only one, five-cent package of candy mints; this operation also causes certain cylinders to spin, and on coming to rest, there is displayed thereon certain baseball symbols, such as “Base on Balls,” “Home Run,” and so forth; a baseball diamond is displayed thereon upon which a customer can play a game of baseball in accordance with the registrations shown on the machine. When this device was so operated, it might at certain intervals drop into a tray metal tokens or checks, from two to twenty in number, which are used solely to operate the advertising or amusement cylinders on the machine, that is, to play a game of ball. In the play of this game by use of the tokens no mints or confections or other thing of value is- released by the machine, but it does at intervals release additional metal tokens of the same kind for the sole purpose of inducing the customer to continue to operate the amusement feature. These tokens had stamped thereon, “No cash or trade value” and “To be used for baseball amusement only.”

It appears that the city notified the appellant and the local lessee merchants to cease openly exhibiting and operating these machines, and that the city threatened to, and did, confiscate the machines as a ■gambling device. These orders of the city’s police department are still in effect.

It is stipulated further that the police officers of the city entered the merchants’ stores without a search warrant and seized these machines; that certain merchants were arrested, and then discharged; that the appellant had prosecuted numerous replevin suits; and that after he had gained possession of the machines and replaced them in the stores of the merchants the city again seized them in the same manner, and new replevin actions were instituted therefor by the appellant. It is not stipulated that the city now has in its possession any of the appellant’s machines.

The proponent of this suit bases his right to the relief claimed upon the argument that his mint-vending machine is not a gambling device per se, and that, this being true, there exists therein a property right of which he cannot be deprived without due process of law, and therefore, upon the agreed facts, that this, a court of equity, should afford injunctive relief.

There can be no question that in a proper case a court of chancery may grant relief where police officers act without authority, or abuse an authority sought to be exercised; but as a general proposition it may be stated that police officers will not be enjoined in the exercise of their proper duties, even though they perform such in an offensive and unlawful manner, for the reason, as pointed out by this court’s predecessors, in the case of Snyder v. Swope, Dir. of Safety, 23 O. L. R., 361, at page 366, that a “person accused of crime and threatened with arrest could appeal to a court of equity, and by pleading in his petition that his property rights were about to be interfered with, obtain a restraining order, and thus prevent his arrest and trial. This would result in great and irreparable mischief, and thereby withdraw the question of his innocence or guilt from trial in the forum designated by our constitution and laws. ’ ’

The real question in this case, as we see it, is whether or not the mint-vending machine herein described is a gambling device prohibited by the statutes of this state; and is the ingenuity of the construction and operation of this device but a subterfuge to evade and circumvent our law and the sound public policy which engendered its enactment, to the end that the vice of gambling, inherent in all of us, might be suppressed?

It is provided in a number of the states that gambling statutes are to be construed liberally, so as to prevent the mischief intended to be provided against; and, although we have no such statutory rule prescribing construction, we believe it to be the present policy and rule, of which the liberality of the new Crimes Act is indicative, that such statutes should receive a liberal construction in order that the salutary result sought to be attained by the Legislature’s enactment of Sections 13056 and 13066, General Code, might have expression and keep abreast of man’s inventive ability to create new gaming devices and thereby keep without the strict letter of the law, yet accomplish by circuitous means that which was intended to be restrained. And it appeals to us, especially when called upon as a court of equity, to give such expression to a statute aimed at the evil of gambling as will effectuate the intent and purpose of its enactment.

It must not be lost sight of that this is not an attempt to prosecute the appellant for the violation of a gambling statute, but is an application directed to the conscience of a court of equity. We are not asked to determine if Snyder is guilty or innocent of any criminal offense, but we are requested to determine if this mint-vending machine, threatened with seizure, is a gambling device or evil thing kept and exhibited for gain.

The appellant, to maintain his theorem,, mainly relies upon the authority of State v. Krauss, 114 Ohio St., 342, 151 N. E., 183. This was a criminal case, certified by the Court of Appeals of Hamilton county to the Supreme Court as being in conflict with Snyder v. Swope, supra, which was a suit in equity, praying for like relief as herein asked. We recognize the plaintiff in the Sivope case as the appellant in the instant action. Referring further to the Krauss case, the court therein remarked at page 349 of 114 Ohio State, 151 N. E., 183, 186: “We think the records before the two courts of appeals were so essentially different, and the principles of law applicable- thereto of such dissimilar character, that the respective conclusions reached do not constitute a conflict of opinion. This case is a criminal one and requires the application of the well-known principles applicable to criminal cases.”

It is clear that this case was decided upon the well-recognized rule that the state is bound to prove each and every essential element of the crime charged, and a failure to prove any one of such essential elements must result in an acquittal of the one accused. Therein the court said further, at page 348 of 114 Ohio State, 151 N. E., 183, 185: “The record is completely silent as to any gain to the player as a result of his operation of the machine consecutively or otherwise. * * * No profit or gain, present or future, by the hazard or element of chance of the machine, is shown to have accrued to the player.” And, it was further remarked, page 348 of 114 Ohio State, 151 N. E., 183, 185: “If some gain or profit, or the right thereto, had been shown, a different question might have been presented, but the evidence stopped short of showing that the machine was operated as a means of securing something for nothing.” This last remark leads us to the conclusion that this case, in view of the facts of this suit, is, in fact, opposed to the appellant’s contention.

Examining now the manner and method of operating this machine, the appellant concedes that one may deposit his nickel and receive a package of mints, and at the same time he may receive from two to twenty tokens with which he may continue to play the advertising or amusement feature thereof; but, when he runs out of cheeks or tokens, he must deposit another nickel and thereby receive a second package of mints, and perhaps more tokens or checks with which to further play the amusement device. Thus one nickel may follow another, in quest of more checks.

It is this feature that brings us to the opinion that the device is more than a mere vending machine. Its purpose is to increase the sale of mints by appealing to the gambling instinct, and this increase in sales, and other accruing profit by way of advertisement, is a gain to the owner or lessee of the machine, as contemplated and provided against by the statutes and policy of this state.

The fact that the device indicates the number of tokens that will be received by the player upon the next play does not eliminate the objectionable attachment. The lure and chance of gain that induces a player to continue to operate the machine still exists, although without there being an ultimate loss to the owner or lessee. See authorities cited in Words and Phrases, Third Series, vol. 3, page 855.

We believe that it is not essential to gambling that one should have a chance to lose, but that the player has a chance and lure to get something for nothing. Now, does a patron of this machine by continuous play receive something of value from the amusement device? This we answer in the affirmative; for amusement is a thing of value, for which more money is spent perhaps than for any other purpose. The appellant lays much stress on the fact that play of his device by the use of his tokens or checks but gives amusement to his patrons; but if this be the controlling factor, inducing continuous play, amusement is not furnished all patrons in the same quantity at the same cost; and therein lies the vicious element of one’s obtaining something for nothing.

We are further unable to lay aside the facts that a vending machine can be and is a simple device; that the lure and chance in the appellant’s machine is there to appeal to the gambling propensity in us; that its amusement features are unnecessary in a simple vending machine; and that it may without change pay money or merchandise for tokens if a lessee should have a moral lapse and breach his contract with the owner without the owner’s knowledge or consent.

The appellant in his brief makes the remark, in advancing the case of Soper v. Michal, 123 Md., 542, 91 A., 684, L. R. A., 1915A, 232, that, “In view of the fact that the laws of Maryland relative to gambling are quite similar to ours, this decision becomes quite persuasive.” In answer thereto we would direct attention to a more recent adjudication from that state, Gaither v. Cate, appearing in 156 Md., 254, 144 A., 239, which is directly in point on the facts, reason and law which we apply herein.

This machine strongly appeals to the young and unsophisticated, and fosters and encourages them to engage in games of chance, which the Legislature has sought to repress. We therefore find it to be an evil chattel, and there is no property right therein which this, a court of equity, recognizes or proposes to protect. It is a gambling device, produced for the purpose of circumventing the intent and purpose of the statutes enacted contrary thereto.

We find nothing in this case that should appeal to the conscience of a court of chancery, and the petition is dismissed, at appellant’s costs.

Petition dismissed.

Lemert aiid Montgomery, JJ., concur.  