Lee v. City of Miami , 121 Fla. 93 ( 1935 )

I find myself unable to agree with my associates in whole, either in reasoning or conclusions by which they have reached the result of reversing the order of the Court below.

From the provisions of the Act which are fully set out in the majority opinion, it is observed that the purpose of the Act is to make it lawful, upon the payment of the required license, to operate in this State, first:

"Automatic coin-operating vending and amusement machines with premium features which may or may not vend for each coin deposited a standard article or merchandise having a recognized retail value and which at intervals vend checks, tokens, coins or orders which may or may not be exchanged for additional merchandise";

Second: "Coin-operated skill machines, such as Pin-Games, Marble Tables and similar devices which have a skill feature and which may or may not pay a reward for skillful operation, or upon which operation premiums may or may not be given for high score or making certain combinations, and where the premiums may be awarded either automatically by the machine in the form of checks, tokens or orders which designate the value of premium or premiums or may be indicated by a score card attached to the machine";

And third: "Trade machines which have no automatic vending feature although at intervals the machines indicate that the patron is entitled to receive premiums."

It is further provided that nothing in the Act shall be construed to apply to any coin-operated machine or device which returns amusement, entertainment or some service or article of value or a combination of such uniformly as to quantity and quality upon each insertion of a coin into the same, nor to any coin-operated telephone.

Sub-section 4 of Section 2 defines what shall be known as othermachines.

It is clear that in each of the classifications above mentioned it was the intent of the Legislature to permit the operation of slot machines, or other machines to be operated in such manner by the use of coins that the player depositing the coin would be, upon the play resulting in a certain manner, entitled to receive a greater sum than the sum deposited.

In other words, paragraph (1) of Sec. 2 of the Act by its terms only applies to the operation of those machines which are commonly recognized as gambling devices and in which the element of chance to win more than is deposited is the dominant feature and is the feature which urges the public to play the machine and neither skill, will or judgment plays any part as to results. The machines which are operated solely as vending machines and without offering any element of chance to win something other than the specific article sought to be purchased are definitely excluded from the operation of the Act.

Now the first question for us to determine is whether or not the Act violates or is in conflict with the provision of Section 23 of Article III of the Constitution.

In the case of State v. Vasquez, 49 Fla. 126, 38 So. 830, this Court said:

"A statute licensing `lung-testers, striking machines, weighing, chewing gum stand, automatic penny in the slot machine or any other device of a similar nature' under a constitution prohibiting lotteries will not be construed to license the operation of a machine in which the element of chance largely predominates."

In the case of Kirk v. Morrison, Sheriff, 108 Fla. 148,146 So. 215, we held:

"The affidavit before us in the present case is repugnant and inconsistent in its allegations in that in one portion of it the unconditional allegation is made that the defendant kept a `slot machine' for the purpose of gaming or gambling. But in a subsequent portion of the same affidavit it is plainly stated that the slot machine in question is not per se a gambling device nor permitted to be used for gambling, but is designed and used only for the innocent purpose of vending mints, not involving a playing upon the same `for money or other valuable thing' in violation of the statute prohibiting the keeping of a `slot machine' for unlawful purposes.

"If we accept as true the allegations of the latter portion of the affidavit, the `slot machine' kept by the defendant was not a gambling device per se because these latter allegations concede, on the face of the charge itself, that there is no element of chance for the winning or losing of money, or any check or memoranda calling for money, `or other valuable thing' through the playing of same in the ordinary way it is designed to operate, if such machine, as constructed, remains unchanged.

"Neither is it charged in the affidavit anywhere that, though not designed for gambling, that the machine is being suffered or permitted to be used or kept for use for gaming or gambling. The mere keeping of a slot machine under such circumstances cannot therefore be considered as unlawful per se, under Section 7657 C.G.L., supra. People v. Jennings, 257 N.Y. 196, 177 N.E. 419; Overby v. Oklahoma City (Okla. Cr. Appl.), 287 P. 796.

"In some States every `slot machine' is by statute to be deemed a gambling device. But in States such as ours, where no such statutory definitions exist, the use to which a `slot machine' is put, or designed to be put, must determine its character as a device for gaming or gambling. The courts are not permitted to take judicial notice that every slot machine as such, is a gambling device. See Note, 20 Ann. Cas. 131."

The term "Lottery" has been variously defined. Some of the definitions are as follows:

"The term `lottery' has no technical meaning in the law distinct from its popular signification. A lottery is a scheme for the distribution of prizes by chance. Dunn v. People, 40 Ill., 465, 467; Thomas v. People, 59 Ill. 160, 163; Commonwealth v. Mackay, 58 N.E. 1027, 177 Mass. 345; State v. Shorts,32 N.J.L. 398; 90 Am. Dec. 668; Rolfe v. Dalmar, 30 N.Y. Super Co. 80; People v. Noelke, 94 N.Y. 137, 46 Am. Rep. 128; State v. Willis, 78 Me. 70, 2 A. 848, Randle v. State, 42 Tex. 580; Quatsoe v. Eggleston, 42 Or. 315, 71 P. 66."

"A lottery is a scheme for the distribution of prizes by chance, or the distribution itself when the latter depends on chance. Commonwealth v. Sullivan, 146 Mass. 142, 15 N.E. 491; Holman v. State, 2 Tex. App. 610[2 Tex.Crim. 610], 28 Am. Rep. 439."

"`Lottery' is defined as a hazard in which sums are ventured for a chance of obtaining a greater value. Lotteries are nuisances in the eye of the common law. In re Smith, 54 Kan. 702, 39 P. 707; Ford v. State, 85 Md. 465, 37 A. 172, 41 L.R.A. 551, 60 Am. St. Rep. 337."

"A `lottery' may be defined to be a game by which a person paying money becomes entitled to money or other things of value on certain contingencies, determinable by lot cast in a particular way by the manager of the game." Chavannah v. State,49 Ala. 396.

"A lottery is a scheme for the distribution of property by chance or lot among persons who have paid or agreed to pay a valuable consideration for the privilege of participating in such scheme." New Orleans v. Collins, 52 La. Ann. 973, 27 So.2d 532.

"To be a criminal lottery there must be a consideration, and when small amounts are hazarded to gain large amounts, and the results of the winning is to be determined by the use of a contrivance of chance in which neither choice nor skill can exert any effect, it is gambling by lot, or a prohibited lottery." Johnson v. State, 137 Ala. 101, 34 So.2d 1018.

"There are three essential ingredients in a lottery — consideration, prize and chance." Equitable Loan and Security Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 62 L.R.A. 93, 97 Am. St. Rep. 177.

"A lottery is a scheme by which a result is reached by some action or means taken in which result man's choice or will has no part, nor can human reason, sagacity, foresight, or design enable him to know or determine such result until the same has been accomplished." Price v. Elliott, 74 Mich. 264, 41 N.W. 916, 3 L.R.A. 403, 16 Am. St. Rep. 640.

"Where a pecuniary consiideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what the party who pays the money is to have for it, or whether he is to have anything, it is a lottery." State v. Lovell, 39 N.J.L. 458; State v. Clark, 33 N.H. 329, 66 Am. Dec. 723; Hull v. Ruggles, 56 N.Y. 424 ; Swain v. Bussell, 10 Ind. 438; McDonald v. U.S., 63 Fed. 426; Cross v. People, 18 Colo. 321, 32 P. 821, 36 Am. St. Rep. 292; Long v. State, 74 Me. 565, 22 A. 4, 12 L.R.A. 425, 28 Am. St. 268; State v. Overton, 16 Nev. 136; State v. Mercantile Assn., 45 Kan. 351, 25 P. 984, 11 L.R.A. 430, 23 Am. St. Rep. 727; Wilkinson v. Gill, 74 N.Y. 63, 30 Am. Rep. 264, Yellow-Stone Kit v. State, 88 Ala. 196, 7 So.2d 338; 7 L.R.A. 599, 16 Am. St. Rep. 38; Kohn v. Koehler, 96 N.Y. 362, 48 Am. Rep. 628.

"A distribution of prizes and blanks by chance; a game of hazard in which small sums are ventured for the chance of obtaining a larger value either in money or other articles." Worcester's Dictionary.

"A scheme for the distribution of prizes by chance." Webster's Dictionary.

"A kind of game of hazard wherein several lots of merchandise are deposited in prizes for the benefit of the fortunate." Rees' Cyclopedia.

"A sort of gaming contract by which, for a valuable consideration, one may by favor of the lot obtain a prize of value superior to the amount or value of that which he risks." American Cyclopedia.

"In one respect we think all these definitions are too narrow to cover some of the modern devices resorted to in order to evade the lottery laws, and that whether the consideration paid or given for the token or chance to win something, generally called a `Prize' consists of money or any other thing of value, makes no difference." Long v. State, 74 Md. 565, 22 A. 4, 12 L.R.A. 525, 28 Am. St. Rep. 268; Equitable Loan Security Co. v. Waring,117 Ga. 599, 44 S.E. 320.

"But there may be an adventure or hazard without a lottery. Every throw of the die, even for an ordinary wager, is an adventure or hazard, but it has never yet entered the mind of any man that it constituted a lottery. A raffle of watches or other articles, of which the owner fixes the value, which is equally apportioned among the adventurers, and the chances are usually determined by the throwing of dice, pieces of coin, or some substitute is not a lottery." State v. Pinchback (S.C.), 2 Mill Const. 128, 130.

"A division of property under some circumstances may be made by lot, and yet not be a lottery. Sacred history contains several instances where property has been parted and divided by lot; Psalms XXII, 18; Matthew XXVII, 35; Acts I, 26; Leviticus XVI, 8. The term as used in the criminal law refers to something in which there are supposed prizes and blanks. On the other hand, the disposal of any species of property, by any of the schemes or games of chance popularly regarded as innocent, comes within the terms of the law. The raffles which occur daily at the street corners, in bar rooms, at fairs, and at other places, are as clearly violations of the criminal law as the most elaborate and carefully organized lotteries by which the ignorant and credulous are swindled out of their hard earnings." Commonwealth v. Manderfield (Pa.), 8 Phila. 457, 459.

"A lottery is a game of hazard or chance, in which small sums are ventured for the chance of obtaining a larger sum of money. Where a nickel-in-the-slot machine was so constructed that if the nickel, in falling into the machine, touched certain springs, a valve would be opened, and the machine would pay a certain amount of money in excess of the deposit, the nickel remaining in the machine, and the proportion of times when one playing the machine would win was less than the times when he would lose, such machine constituted a lottery. Pendergast v. State, 41 Tex.Crim. 358,57 S.W. 850.

"The use of a slot machine where the element of chance determines whether the prizes ar to be given, brings the operation thereof under the definition of lottery, whether the prizes given are stock in trade of licensed establishments or not." City of New Orleans v. Collins, 52 L. Ann. 973, 27 So.2d 532.

There is no ambiguity in our constitutional provision prohibiting lotteries and we know of no rule of construction which will permit us to determine that the intent of the Constitution is that the section should apply to certain classes of lotteries and not to others. It may have been that the framers of the Constitution had in mind a particular kind of lottery when they adopted this provision.

It occurs to me that the definition given by the Supreme Court of Michigan in the case of Price v. Elliott, supra, is a clear, concise and logical definition of "lottery" which should be applied in determining what is meant by this section of our Constitution, that is:

"A lottery is a scheme by which a result is reached by some action or means taken in which result man's choice or will has no part, nor can human reason, sagacity, foresight or design enable him to know or determine such result until the same has been accomplished."

In the majority opinion it is said:

"What Section 23 of Article III actually did was to suppress such legalized lotteries as are referred to in the forepart of this opinion, the primary test of which was whether or not the vice of it infected the whole community or country, rather than individual units of it. Any gambling device reaching such proportions would amount to a violation of the Constitution but it is not alleged or shown that the devices legalized by Chapter 17257 come in this class."

We have repeatedly held that what everybody knows this Court is assumed to know. Therefore, it follows that we are assumed to know that the machine described in paragraph (1) of Section 2 of the Act is a machine which constitutes a gambling device and the use of which for such purposes has infected the whole community and country. They are found in operation in many places in almost every community. They constitute an habitual and almost ever present lure to the gambling instict of those members of the public who are least able to indulge such inclination. It is also a matter of general knowledge that such machines are referred to as one-armed bandits because they are so constructed that there is nowhere an even chance for the player as against the operator; that they constantly pay large weekly dividends to the operator and that in the operation thereof by the player there is involved no element either of judgment or of skill. In this latter respect they differ from the machines described in paragraph (2) of Section 2 of the Act designated as "coin-operated skill machines." As to these latter machines the method of operation, I think, would determine whether or not they constitute lotteries. The same is true of the machines coming within the provisions of paragraph (3) of Section 2 of the Act. Therefore, the operation of such machines should not be enjoined by blanket injunction, but it should be left to the enforcement officers to determine whether or not they are being so operated as to constitute lotteries under the judicial definition of "lottery." And, as to these machines, I concur with the reasoning and the result reached in the majority opinion. In addition to what is said there, however, as follows:

"Both the `operator' and the `location operator' of any machine as defined in Section 3 of the Act are required to secure a license for that purpose and it is made the duty of the Comptroller to prescribe rules for and to administer the said Act."

I would add that I do not think that the provision of Section 12, as follows: "Provided, further, that nothing herein shall be construed to mean that more than one occupational tax may be required from any one operator, and not more than one location tax may be required of each machine, in the same county or city," is in conflict with this holding. I think that this provision of Section 42 means that one who pays the occupational tax as an operator can not be required to pay more than one such tax to the State or more than one such tax to each county and municipality and that when an "operator" and a "location operator" have each paid the location tax provided for in Section 5 of the Act required to be paid as occupational license tax on each machine that neither can be required to pay an additional tax on the same machine, although it may be moved to some other location in the same county or municipality. In other words, the provision of Section 12 only means that after the tax provided for in Section 5 has been paid for the operation of a particular machine in a particular county or municipality that no additional tax should be required of that operator, or the location operator, for operating the same machine in the same county or municipality but at some other location. Whether or not the provisions of the Act constitute wise legislation or whether or not the purpose of the Act is a laudable one are matters for the Legislature and not for the courts to determine. It is, of course, the duty of the Legislature to support and defend the Constitution and its provisions, but, regardless of what the legislative action may have been, it is the duty of the courts always, and under all conditions, to respect, uphold and enforce the provisions of organic law as written in the Constitution fairly and impartially and without reference to expediency.

Having reached this conclusion, I think we should hold that the operation of the machines constructed and to be used in the manner provided for in paragraph numbered (1) of Section 2 of the statute would constitute lotteries and that, therefore, the Act offends against Section 23, Article III of the Constitution and is void.

It, therefore, follows that my view is that the decree of the court below should be affirmed insofar as it applies to the machines referred to in the Act as automatic vendors described in paragraph (1), Section 2 of the Act, and should be reversed insofar as it applies to other machines described in the Act without prejudice to any law enforcement officer to abate the operation of any coin-operated machine which comes within the purview of the definition of "lottery" as defined in Price v. Elliott, supra, and which definition is quoted above.