*1 (No. 37897. Club,
Kenneth A. Shoot, vs. Ridge Appellant, d/b/a Liquor Commission, Illinois Appellee. Control Opinion March Rehearing May 19, denied filed 1964. part. J., took no
Underwood, J., dissenting.
Schaefer, T. Chicago, Ryan, (Harold Halfpenny, Hahn & Flanagan, Hahn, F. F. Halfpenny, Richard James counsel,) Mary Brown, A. Shaw, M. James appellant. *2 General, of Springfield, Attorney Clark, G.
William Raymond A. Sarnow, Edward S. Wines, C. (William Groves, Assistant A. and Dore, Zola Berman, Cornelius General, for counsel,) appellee. of Attorneys Daily the court: of the opinion delivered Mr. Justice review cause to in this leave to appeal granted haveWe that a certain finding Court of Appellate a judgment Commis Control Illinois Liquor by rule promulgated commission’s valid exercise and a reasonable sion was Illinois Liquor (Shoot authority. rule-making statutory In so 2d 431.) doing, Appel Com. Control App. of superior reversed an earlier judgment late Court to be unreason found the rule County court of Cook able, unjust. and arbitrary at shows rule factual background
Pertinent 20, licensee of the issue, “No Rule provides following: or a Federal shall possess Occupa- or the Annual Wagering stamp Occupational tional $250.00 issued the Internal Device Revenue au- Gaming * * * States, for the United thorities premises the Commission. of this rule Violation shall be for revocation or of any license issued suspension grounds III, under Article the Commission provided Section 12, 1 of the Illinois Sub-section Control In- Liquor Act.” in this case is the particular volved what as “the Annual refers to rule Occupational Gaming $250.00 an excise tax Device imposed by Federal stamp,” under of sections authority government Internal Revenue the United States Code. (26 U.S.C.A. sections, Those aimed 4461, 4462.) at “coin taxing §§ amusement or [s],” device es- provide operated for a tax to be part paid annually by persons sential use or to be used on their premises who maintain for permit machines, machines devices as music vending such machines, for an annual tax to be amusement of $250 which is a any machine so-called persons paid “slot” means of the insertion of “by which operates machine coin, token, which, or similar object by application chance, deliver, the element of or entitle the person receive, cash, the machine to operating playing premiums, merchandise, or tokens.” in United States v.
Speaking U.S. Korpan, 354 L. 2d ed. our nation’s 1337, (1957), highest court has held that modern machines fall within the day pinball statutory machine,” definition of “so-called ‘slot’ and there found the defendant a wilful failure to obtain a guilty under facts that those who showing played machine had an defendant’s option free converting games *3 the machine on into cash at a registered rate. designated And while we would decision interpret to mean that a amusement would have been sufficient stamp had it not for the element a been cash payoff, (see: United States v. One Ranch Dude Bally Coin-Operated Pin-ball Machine, Tenn. F. (M.D. 1953), McNeice 930; v. Supp. City 144 Minn. Minneapolis, 142, N.W.2d 232; Washington 84 Callahan, Coin Machine Assn. v. (D.C. cir.) F.2d 97,) courts, Federal inferior the apparently Internal Reve- authorities, nue have construed it as holding pinball machines are per devices se and require the $250 “cash, stamp, regardless whether premiums, merchandise received, or tokens” are actually features, where char- acteristics and functions of the machines themselves involve the element chance and are such that the machines may deliver or entitle the cash, to receive players etc. (Szybski States, (E.D. v. United Wis. F. 1963,) 806; Supp. States, v. United Harvey (D. Ore. 1962,) 80; F. Supp. Devices, (S.D. 1957,) Nine Gambling States v. United see also: Singleton Tax Cases 15,257, U.S. ¶ 59-2 616; Five States v. Mathis, F.2d United (8th cir.) 284 Devices, In brief it is F.2d cir.) 210.) Gambling (7th 252 cash or con which use to dispense premiums actual not the machine for such trols, pinball the adaptability but contrast, it is the view this jurisdic way By purpose. is not a device se per machine gaming that a pinball tion entertainment solely purposes. its use since Indeed, Device, 11 Mechanical Ill.2d 151.) v. One (People in the Criminal has expressly provided legislature our device not include: “A coin- does Code mechanical device for amuse played in-the-slot operated rewards with player right replay ment which device, which device is so constructed mechanical make such result of the thereof as to operation or devised on the skill of the and which returns player part depend thereof or to re money, right property player Rev. Stat. money property.” 1963, ceive chap. In the view we take it is irrelevant 2(1).) 38, par. 28 — machine is is not such a device gaming whether mention the se. distinctions between the per We State Federal views to show the merely under setting here, purchased confusion stamp the enforcement of the Commission’s rule. attendant facts of instant case show plaintiff, Shoot, A. who a tavern operated Kenneth Commission, purchased device, The exact nature of the other
January machine, as a than its broad does description pinball but, earlier, in the record tax plaintiff appear paid the Illinois Revenue Act on *4 “coin-in-the-slot- imposed amusement (Ill. Rev. operated 1961, chap. Stat. device[s].” (a).) par. Upon learning plaintiff’s pur 481b.1 chase the issued him and complaint against him directed for a Evidence adduced at appear hearing. his business had that plaintiff operated time showed the stamp, that he had for nine and years, purchased $250 threatened he because was of the lesser stamp, instead $10 his business a lien on authorities with Internal Revenue evidence, There present, so. was no past if he did do of the or of the use on plaintiff’s premises pin- received cash machine a device which player ball commission, however, found that or other premiums. Rule violated possession license for State plaintiff’s liquor period suspended days. an action for review
Plaintiff administrative prosecuted where, of Cook as we have County to the court superior noted, the order of Commission.was reversed and Rule arbitrary, to be unreasonable and On unjust. 20 found Commission, noted, further also as appeal by Ap- Court sustained the Commission and found the rule pellate valid, to be that since rationalizing “chose to plaintiff buy he when could have amuse- stamp,” bought ment he announced his intention of his ma- using as a chine device. The Court Appellate was plainly in this conclusion. Plaintiff’s wrong fortified testimony, what reflected Federal decisions previously referred to, makes it clear that he choice, but given was in effect coerced into buying This is the set- in which the ting operation the rule validity must be considered.
canWe with the agree Court Appellate liquor business is constitutionally to more subject stringent regula tion than business conducted as a matter Further, of right. that, even we can agree interest public and due to the evils and dangers would attend the businesses in combination, the statutory rule-making authority granted the Commission Rev. Stat. 1963, chap. 43, par. could 108(2),) properly exercised to its keep licensees from permitting Indeed, premises.
575 of an implementation more than no a rule would be Code, Rev. Stat. Criminal of our section 3(b) 28 — voids "the which State 3(b),) 38, 1963, chap. par. 28 — who knowingly permits any person license of liquor our But even be used as a place. gambling premises measure for the no in these agreement respects provides rule at hand. Notwithstanding reasonableness of the on fact that the State may regulations liquor impose traffic allowable more than would be or stringent permitted businesses, in such restraints must other imposition be in with constitutional restrictions. nevertheless keeping Ill. As stated (Weisberg Taylor, 384, 387.) 409 Law, Davis, 1, Administrative vol. “One who 1958, p. 456: has to sell the sense that the ‘right’ liquor State the sale of all prohibit liquor together, may nevertheless have a to fair treatment when state ‘right’ officers grant, or revoke deny, licenses.” suspend, the same liquor Along lines, it has been reflected by decision that judicial when the lawful, is, business is it liquor as now the regulations pro vided therefore must be ato pursuant legitimate exercise of the State’s police power, precludes regulation is and arbitrary discriminatory. Zanone (See: v. Mound City, Ill. Harrison v. ex 552; Raben, rel. People 222 Tiernan, Giozza v. 150; U.S. L. 721, ed. 599; Bros. v. Schwegmann Louisiana Board Alcoholic Bever Control, 216 La. age 148, So. 2d 248, In our 253.) opin 20, non, Rule insofar as it to the relates posses sion of “the Annual Occupational Device Gaming $250.00 is stamp,” subject to the vice that it unfairly penalizes licensees on the basis of and improper, arbitrary unreason able presumptions.
The only possible justification and purpose Rule with the consistent limits of the Commission’s rule-making is the authority, suppression licensed prem- ises from which is sold. liquor The mere purchase or pos- session of the is not nor stamp gaming, contra- stamp so, and, effect
band, necessary since these are things the rule is to provide possession evidence of presumptive gambling. And, the rule has been construed and administered as case, it so appears presumption created is effect a conclusive irrebuttable given pre- enforced, We this because the rule was say sumption. absence penalized, notwithstanding plaintiff complete on his af- premises despite proof *6 that his of firmative the was not purchase stamp showing of the motivated device for any purpose using gaming purposes. well that
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The case of Hornstein v. Illinois Liquor Control Com. Ill. 365, cited by defendants to sustain the reasonable ness of the rule, created presumption its is distinguish able. Involved there was a statute which provided that the the examination to an licensee to submit
failure of a local commission orders of from Commission appeals “shall constitute a license denying revoking granting, he the an admission that has violated provisions Rev. 1951, chap. 43, par. 153.) opin Act.” Stat. ion does not undertake to determine reasonableness states could only but presumption, legislature Moreover, it validly 372). create licensees contemplated (p. that statute exercise a whether or not to could choice Here, before the commission. licensees have no appear no choice but certain pre leaving to follow. sumption stated,
For in- the reasons we conclude that Rule 20 is valid insofar as it relates Accord- reversed, of the Court judgment is ingly, Appellate of the court of judgment Cook superior County affirmed. reversed; Court
Appellate court superior affirmed. Mr. took Underwood part the considera- Justice tion or decision of this case.
Mr. Schaefer, dissenting: Justice I with agree of the opinion insofar as it majority rejects argument the licensee that Rule 20 is invalid because the Commission has no concern with legitimate too, on licensed I premises. “it agree, inferred that fairly there is an and direct open relationship between the of a ‘Federal Occupational Wagering ultimate stamp’ fact of But I gambling.” do with the conclusion that agree “Rule is20 invalid insofar it relates device stamp.” The primary with difficulty it, I opinion, as see it tests the validity rule of the Liquor Control standards that would be if the applicable licensee had been convicted gambling solely upon proof *8 federal gambling that he had purchased case, I that proof this would agree issue in If that was the more, without of a of the gambling issue A similar a conviction. somewhat would not sustain in the ma- Florida case that cited in the presented Sweat, 2d (Fla. So. (Jefferson jority opinion, that draws and it is from case 1954), opinion it with that makes respect presumptions. argument are of the Commission with we But rule to future rather than to trans concerned looks conduct past or not tavern has Whether gressions. particular keeper been its has bearing validity. guilty upon Indeed, at the rule aims the conduct of as patrons quite much at the conduct of The licensees. approach would, if majority opinion applied invalidate generally, many provisions validity which can hardly doubted. For section of Article VI example, Act Control forbids access Liquor from the licensed prem ises to unless the quarters, dwelling are dwelling quarters those of the licensee and his family. Rev. Stat. 1963, chap. 43, par. 128.) Upon of the reasoning majority, would seem to be provision vulnerable attack on it ground establishes a presumption dwelling to which there is quarters access from a tavern will be used for immoral purposes. validity Commission’s rule depends upon it
whether or not reasonably related the prevention of on licensed That premises. is obvious relationship and indeed is conceded in the majority But opinion. Commission has incorporated by reference in its rule the classification of gaming devices established by federal statute connection with the impositon of a federal excise tax, (26 USCA 4462) to invalidate the rule the relies what it opinion upon considers to be a fatal incon- between the sistency law of Illinois and the federal classi- fication the rule. In incorporated my opinion the incon- *9 nonexistent is either relies the opinion which sistency upon basic relationship not affect the that it does minimal or so in objective adopt- and the Commission’s the rule between it. ing statute, subject are devices Illinois gambling
Under destruction, a “coin-in-the- but seizure, confiscation to amusement for device played mechanical slot-operated me with the to right replay rewards player which or devised constructed device, device is so chanical in part depend result operation make such thereof of player and which returns the skill player upon merchandise,” from coins, is excluded tokens or thereof no Ill. Rev. Stat. device. of a definition gambling the statutory ; 28— supplied) 2(a) (1) (italics 38, pars. 1961, chap. 28 — in the face, the statement statute contradicts its On “* * * in this that it is the view jurisdiction that opinion se since its use a mahine is not per a pinball One People v. for entertanment be solely purposes. Moreover, cited Device, the case 11 Ill.2d Mechanical 151.” of the There the ruling the statement. does support a that a machine was particular pinball circuit judge, device, and so to confiscation subject contraband gambling destruction, that in the evidence any even absence unani ever been used for was it had gambling purposes, court. affirmed the three of the judges mously appellate however, court, that in on the It reversed this ground make such was “so constructed or devised as to the device its in the skill of result of depend part operation upon the player.” of this from that
Three of the court dissented judges The of the authority Commission to prevent conclusion. taverns is not restricted to the control those gambling that devices are to confiscation and de- subject gambling can, It as contraband. struction my opinion, prohibit other devices that lend themselves peculiarly to gambling classifies statute federal The or his the licensee patrons. which, one categories, into two coin machines operated device, requires $10 characterized as an amusement device, other, requires as a characterized and the gambling utilizes of the The rule federal classification, of a and treats is suitable device that as evidence stamp decided is for to be whether gambling. question related to classification thus is reasonably pre- adopted are for vention gambling premises That sale of at retail. the devices intoxicating liquor devices which a are those required that are so lend themselves to designed they *10 is from in the federal cases are cited apparent opinion. majority
For v. Nine De United States example, Gambling vices, USTC par. 15,257 (S.D. 1957) pinball 59-2 awarded machine ‘free were re to 1000 up replays” an corded on illuminated score board. The could replays either used additional or could be playing games off” “knocked a device which recorded them aon meter. a There was for coin provision insertion which multiple allowed the player to win additional free if he was replays The successful. court held that these features made pin a ball machine to the tax. The subject court’s was similar reasoning to that Turner v. United States, 62-1 USTC 15,402 par. Kan. “Gen (D.C. 1962). a machine erally for designed intended operation merely for amusement will purposes award the a maximum player accumulated total of 26 free machine, On games. plaintiff’s if inserted, coin only one is can player win more than free on games if an single additional coin play; inserted, he win as as many games a single play and may accumulate a total of as as many free games. button, The or ‘knock-off’ push button serves to release com all free so pletely games accumulated so render coin; of a when without the insertion machine unplayable records the the meter automatically that button depressed, If total free so released. accumulated games player free it would hours and 18 require games, approximately 33 use minutes continuous uninterrupted play up free if and then no additional free were only games games, ‘knock-off for won. The button’ free and the releasing plays meter free for released or the plays recording provision coin insertion to increase odds serve no multiple useful on a machine for amusement purpose merely designed cost increase the of the machine increas- they without the income from the machine used when for amusement. ing Such devices are for use as specially de- adapted vices.” view,
In devices kind my described and dealt with in the federal decisions are contraband and subject to de- under Illinois law. I that, struction But if am as to wrong it seems clear to me that those devices are of char- acter that their evidenced possession, of a federal gambling be the basis stamp, may properly of a license revocation Commission.
I affirm would the decision of the court. appellate
(No. 38126. City al., Ives et Frank R. vs. Appellees, Chicago, Appellant. *11 18,
Opinion March Rehearing May denied filed 1964.