99 N.Y.S. 1097 | N.Y. App. Div. | 1906
Application was made to revoke liquor tax certificate 21,050, held by the defendants on the ground that they “ suffered and permitted gambling to be done” in their saloon at No. 23 Seneca street in Geneva, in said county, and which is the place designated in such certificate where they were authorized to traffic in liquors. The proofs were taken before a referee, and submitted to the Special Term, and the material facts are undisputed.
The alleged gambling was by means of a patented slot machine known as the Yale Wonder Clock. This machine was about seven feet in height by three feet across, contained an advertising contrivance, a music box, a clock and four tubes in which tickets were placed to be rung up upon putting a nickel in the slot on the side of the machine. The tickets were placed in the tubes by the proprietor and evezy time the machine was operated a metal disc or ticket was discharged. On the face óf the machine arranged horizontally were four glass discs colored white, blue, green and red respectively, and whenever the metal ticket or disc was ejected from the machine one of the glass discs was illuminated. The white entitled the player to five cents in trade, the blue ten cents, the green fifteen cents and the red twenty-five cents. The discs were inscribed coi'respondingly, “ Good for five cents in trade,” and so on. The proof shows that the proprietor .could distribute these metal discs in the tube as he saw fit. At the time the machine was tested by the agents of the petitioner in July, 1905, there had been placed in the tubes, according to the testimony of the defendant Peck, one hundred and seventy-six five-cent checks; twenty blues, calling for ten cents; four greens, each fifteen cents, and two reds, for twenty-five cents each.
The court dismissed the petition, relying on Cullinan v. Hosmer (100 App. Div. 148), decided by this court, and which held that the operation of a similar slot machine was not gambling. W e have decided to disagree with the principle of that case, in so fan as it holds that the running of the machine is not gambling within the inhibition of the Liquor Tax Law (Laws of 1896, chap. 112, § 23, subd. 7, as amd. by Laws of 1900, chap. 367 and Laws of 1905, chap. 680; Id. § 31, subd. e, as amd. by Laws of 1903, chap. 486).
We are constrained to this conclusion both by reason of more mature consideration of the question, and also because of the decision in People ex rel. Ellison v. Lavin (179 N. Y. 164), which had not been reported at the time of the previous decision, or at least had not come to our attention. It is proper to add, however, that the statement in the opinion of the Eosmer case, that “ there is no provision in the Liquor Tax Law itself which was violated by the operation of this machine,” may have been founded on the original Liquor Tax Law, which did not specifically prohibit gambling in the place where liquor was sold (Laws of 1896, chap. 112, § 23, subd. 8; Id. § 31, subd. e); and also on the statement to that effect in Lyman v. Shenandoah Social Club (39 App. Div. 459, 462) which was correct at that time, but subsequent amendments have added the prohibitory clauses. It is also to be noted that the action in the Eosmer case was to recover the penalty on the bond, and the chief ground for the new trial was that the verdict was contrary to the evidence.
The chief element of gambling is the chance or uncertainty of the hazard. The chance may be in winning at all, or in the amount
The inventor of the present machine has attempted to obviate the criticism to which other slot machines have been subjected by cunningly returning to the player operating the machine a check or ticket which secures to him in cigars or liquor the amount of his stake. Like most endeavors to adhere to the letter of the law while violating its spirit, he cannot succeed. The present device attractively ministers to the gambling humor the same as other slot machines of substantially similar design. Unless it did this it would not entice the customer. If in every instance it actually returned five cents in coin to the player, no one would pretend that the device would attract any one. So if on every cast a ticket was run out calling for five cents in trade, no person would take the trouble to drop a nickel in the slot. It is the hazard, the chance of winning more than the sum ventured, which draws people to the machine, and that element was the conspicuous one retained in its mechanism, and it is that which brings it within the condemnation of the statute forbidding gambling in a place where liquor is sold.
It has long been the policy of the State to regulate and restrict the sale of intoxicating liquors. One method of accomplishing this purpose is to prevent certain things being done in the place where the traffic is permitted to be carried on. In harmony with this general policy, as already noted, gambling is prohibited in such places or the carrying on of any business or traffic “ which is a violation of law.” (Liquor Tax Law, § 23, subd. 7, as amd. supra.) Section 31 of the act (as amd. supra) enumerates what are denominated illegal sales, and in subdivision e the prohibition against gambling is reiterated.
This prohibitory legislation is subsidiary to the constitutional pro- . vision (Const, art. 1, § 9) which provides, “ nor shall any lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.”
The order should be reversed, with costs and disbursements of this appeal, and the petition revoking the liquor tax certificate granted, with costs.
All concurred.
Order reversed, with costs, and motion revoking and canceling said liquor tax certificate granted, with costs and disbursements.