
    SLOT MACHINES WHICH ARE WITHIN THE DEFINITION OF GAMBLING MACHINES.
    Common Pleas Court of Jefferson County.
    Mills Operating Co. v. Village of Toronto.
    Decided, March 8, 1918.
    
      Gambling — Slot Machines Will be Treated as Gambling Machines, When —Gambling Devices Seised and Destroyed Upon Order of Mayor.
    
    1. A slot vending machine, which upon deposit of a nickel will release a package 'of chewing gum together with checks in number from two to twenty, good in trade in the -store where the machine is installed, is a gambling device, notwithstanding some consideration is received for every nickel played.
    2. The fact that the ordinance under which the lessee of such a device was convicted contains no provision -affirmatively authorizing its destruction, does not prevent its being destroyed either as a nuisance or as a thing in which the law recognizes no property right.
    
      J. S. Crawford, for plaintiff.
    ' JEdward McKinlay, contra.
   Smith, J.

The plaintiff is the owner of certain vending machines, which were leased to B. F. Dawson in the village of Toronto for the alleged purpose of selling chewing gum and other trade articles in his place of business. An affidavit was filed before the mayor on December 29, 1917, charging the lessee of these machines with having permitted a game to be played for gain upon or by means of a gaming device, to-wit, a nickel slot machine in viola-, tion of ordinance No. 66 of said village.

Ordinance No. 66 reads as follows:

“If any person shall permit any game to be played for gain upon or by means of any gaming device or machine, in any building, booth, arbor, canal boat or water craft owned or controlled by such person, he or she shall, on •conviction thereof, pay a fine not exceeding fifty dollars .and pay the costs of the prosecution.”

To that charge the defendant entered his plea of guilty and was sentenced to pay a fine of $25 and costs, which was paid. No error was prosecuted from that judgment. The vending machines are now in the possession of the village of Toronto, and this action is brought by the plaintiff to recover the possession of these machines.

The questions involved are as follows: First. Does the title to these machines remain in the plaintiff company? Second. Were said machines as constructed and operated, legal vending machines or were they illegal slot machines or gambling devices ? Third. Does the mayor of the village of Toronto have the authority to destroy or confiscate said machines under ordinance No. 66?

The first and second propositions may be considered together. If these machines are gambling devices, it follows there is no property right in them, and plaintiff could not claim title to them as against the village of Toronto. From the facts it appears that by dropping a nickel in these machines, each person is guaranteed at least one package of chewing gum, and in addition thereto may receive from two to twenty checks in trade from the store of the lessee, Mr. Dawson.

It also appears from the cut that certain characters are on these machines representing certain cards, and that in accordance with the order or arrangement of these cards after a play would depend whether or not the player would receive one package of chewing gum and possibly two to twenty trade checks in return. The checks might be exchanged for articles in Mr. Dawson’s store.

From these facts it clearly appears that this is a gaming or gambling device. There seems to be the impression abroad among the lessees of these machines so long as the player receives something of value in return for the money played they are within the Law and can not be prosecuted for conducting a gambling machine or device. That impression is clearly erroneons. Wherever the element of chance enters into the playing and the player has the opportunity to receive something for nothing, something without consideration, it comes within the provision of the law, prohibiting the operation of a gambling machine or device. There is no dispute among the authorities upon that proposition.

Wise v. Martin, 7 N. P., 660:

“The device used in the transaction which is the cause of this action is known as a slot machine, and is operated by inserting in a slot at the top of the machine a coin, which finds its way into one of several compartments 'at the bottom, according as it is deflected to one side or the other by pegs or other obstructions against which it may chance to strike. In my opinion it is clearly within the definition of gambling machine, in Section 6394, Revised Statutes, the keeping of which for the purpose of gambling is punishable by fine and imprisonment and is therefore a crime under the laws of the state.”

It is the element of chance in the game that makes it illegal; whether one receives something or whether he receives nothing is not material. If that were not the case every game of chance, every gambling device, could be legalized by giving to the player some consideration for the money which he wagers upon the game. These machines are therefore clearly within the law prohibiting the operating of a gambling device or machine as provided in the ordinance of the village. .

The question further arises, does the village have the authority to confiscate these machines? It is urged by counsel for the plaintiff company that there having been no provision in the ordinance for the confiscation of these machines that no penalty could be added to that already expressed in the ordinance. The confiscation or destruction of gambling devices is not, however, in the way of penalty. It comes within the provisions of the police powers of the city or state. It has always been held that gambling devices or equipment are inimical to the public good. They are therefore a nuisance ,and it follows that they could and should be destroyed. It was not only within the authority of the village officers to confiscate these machines, but it was their duty.

This defendant was charged with having kept a gambling device upon his place. ITe entered his plea of guilty to that charge. For the .authorities now-to turn that gambling device back to this man or to its owner would in fact be encouraging him to continue the conduct of his wicked and illegal business.

As was said in the case of Engelhardt v. Kumming, 10 N.P. (N.S.), 609, 611, by Judge O’Connell from Hamilton county, in which it was sought to recover from the mayor the value of certain gambling devices:

“The law does not throw its protecting arm .about gambling devices or gambling instruments, nor does the law recognize any property rights existing in gambling devices for the use of such devices and instruments are subversive and destructive of the best interest of society. The plaintiff should have prosecuted proceedings in error were he dissatisfied with the proceedings before the mayor. Pie can not maintain his first cause of action in view of the facts disclosed by the mayor’s court records and the evidence produced in this court.’’

In that case the plaintiff sought to recover the value of his machine after a conviction. In the instant case the defendant has entered his plea of guilty. He has admitted that .these are gambling devices. Pie can not recover these from the village for the reason that the law recognizes no property interest in them. The village has a right to destroy them. There is perhaps no form of gambling that is more subversive to public good than these gaming machines. They induce and encourage boys to play them and thereby encourage .and develop the latent spirit of gambling, which is so prevalent and prominent among the American people.

It follows that the title to these machines is not in the Mills Operating Company for the reason that they are gambling devices, and that they were conducted illegally for the reason that the defendant in the criminal case admitted himself that they were gambling devices. The mayor, therefore, has authority to take possession of them, destroy and dispose of them as he may see fit.

A finding will be had here in favor of the defendant and against the plaintiff.  