*1 Attorney, Tinder, et al. Prosecutor Operating Inc. Music Rehearing May 29,476. denied 1957. Filed [No. June 1957.] *4 Dillon, Reddington, J. Smith, Asa J. Michael John B. Jacobs, appellants. Indianapolis, Andrew for and all of Royce Travis, of Indian- John A. P. both Howard aapolis, appellee. for permanent appeal C. J. This is an
Achor, restraining against appellants, issued interfering opera- or them from with the installation city appellee’s pinball tion of In- in machines dianapolis. theory that upon
Appellee maintained action its by appellee, type machines of owned granted right expressly only replay, an immediate application Hasbrook excluded from the so-called Law, Indiana General Chapter 265 of Acts Assembly, 2336, Burns’ 1956 (being §§10-2329— gam- crime of with the Kepi.), which act concerned exemption to bling provides penalty therefor. by appellee, Section act, upon is contained relied by us Act, italicized 4 of the and is 3 and subsections thereof, as follows: in the recital “ gambling’ accepting (3) or means ‘Professional credits, offering accept, money, profit, de- things gambling, posits or other of value risked in any thereon interest therein. Without or claims or limiting ing generality definition, follow- pool-selling bookmaking; shall be included: maintaining variants machines, one-ball machines or slot thereof, pinball which award anything roulette replay, than other an immediate wheels, tables, money dice or merchan- pushcards, punchboards, jars spindles, dise *5 conducting any public, place and accessible to the lotteries, gift enterprises, policy numbers or or selling therein; be games, or the follow- chances and ing conducting presumed shall included: be
any banking games cards, percentage played with or counters, any accepting of dice or stakes therein. fixed share “(4) ‘Gambling any by device’ means mechanism credits, operation right money, which de- of a things posits return for a created, of or other value be oper- consideration, as the result of the chance; ation of an element of and mechanism operated a not when consideration return does thing the sideration same value of value for the same con- upon each But in the thereof. application right an immediate definition replay mechanically pin- players on conferred ball machines similar amusement devices shall presumed (our emphasis.) to be without value.” (§10-2330, supra.) finally joined by The issues were appellants’ answer to appellee’s complaint supplemental paragraph complaint. filing prior But to the appel- of said answer Bayt lants and Mueller filed a motion to dismiss on the grounds statutory that the provision upon by ap- relied pellee was unconstitutional. This motion was overruled by Also, prior filing the court. to the by of the answer appellants, by a demurrer was appellant filed Tinder and overruled the court. assigned urged
The errors appellants in this appeal are as follows:
(1) overruling The appellants’ motion to dismiss. (2) overruling The appellants’ demurrer. (3) overruling appellants’ motion for a new trial. support
In dismiss, their motion to appellants con- quoted tend that the above sections of the act relied upon by appellee complaint in its were unconstitutional following for the reasons: permits
(1) exception act which said That conferring is incon- replays pinball machines of free on act, not general subject matter sistent with expressed in the title. except provisions which
(2) That said immediate mechanically confer con- gambling the state laws of replay free provision. special law as such stitutes *6 allowing replays pinball on (3) exception That said of the Article 15 Con- machines is violative Section prohibiting lotteries. of Indiana stitution the fol- appellant Tinder stated The demurrer of grounds lowing therefor: reasons as jurisdiction of the no has “1. That Court subject matter of or persons of the defendants this action. complaint not facts suf- does state That the “2. action.” a cause of constitute
ficient to later rendered the court and The cause was submitted against appellants permanent follows: AD- AND THEREFORE CONSIDERED “IT IS the defendants John by the Court JUDGED Prosecuting Attorney, deputies, in- Tinder, his O’Neal, assistants,
vestigators, Robert A. and County, deputies, his investi- of Marion Sheriff Mueller, assistants, gators, A. and Frank Chief and City Indianapolis, mem- and all of Police of City Department of the of In- of the Police bers they hereby perpetually en- dianapolis be and are interfering joined plaintiff’s with business pinball of all owners and lessees the business and machines located County, Indiana, and in Marion leasing, maintaining, especially in the business machines, operating pinball from arrest- ing, coercing, any or in intim- manner whatsoever idating owners, operators, employees pinball lo- said machines are now locations where County, cated or hereafter be located in Marion confiscating, any seizing, Indiana, or in and from taking possession the into their manner whatsoever aforesaid plaintiff interfering with the pinball pinball ma- and lessees of or all owners operation of their business chines in the conduct and of chines as above described leasing, distributing, pinball ma- possessing County, in Marion In- diana.” appellants’ oper-
We first consider contention that the lottery ation machines constitutes within meaning supra, 15, §8, and that the owner- Art. ship and unlawful re- such machines is gardless exceptions contained in the act. Article authorized; lottery 15, §8, supra, provides: “No shall be lottery allowed.” nor shall the tickets be sale lottery? placed What is of Indiana courts have interpretation “lottery” no other on the word than its commonly meaning, accepted defined in Webster’s Dictionary, New International “A as follows: by prizes scheme for the distribution of lot or chance; prizes esp., one or more a scheme among persons paid or distributed chance who have *7 them, . promised a for a chance to win . . consideration game given prizes pool A in which are from a to holders matching purpose.” of cards reserved for that others gaming, although and, species of Lotteries are a lotteries gaming gambling, gambling all of are not forms are City Village (1953), State v. Garden lotteries. 74 of 513, P. Idaho 265 2d 328.
Appellant cites the fact that there are three essential lottery, namely, consideration, elements to a chance and prize, Village City, supra; State Garden State v. of v. 1120, 122, (1937), 102, Coats 74 P. 2d 158 Or. Or. 132, 1102, present 74 P. 2d and that all these elements operation pinball appellee’s. of in the of the machines Appellant other the fact that numerous cases from cites jurisdictions support proposition operation that the lottery.1 machines constitute a
However, we submit that in none the above cases is analogous operation involved of the machines those winning prize lottery In a of a this case. solely, dependent primarily, upon chance.
is
if not
dependent
prize
In
none of
cases was
said
player.
a
upon
manipulation of the
This is
the skill or
lottery.
significant
contemplated in a
How
not
factor
ever,
machines with which this
in the
of the
concerned,
predominant factor in deter
case is
is a
skill
mining
prize.
the award of a
These machines are
equipped
“flippers,” by
player controls
with
which the
conferring
prize
fact,
play
In
each ball.
player
operate
(free
can
play)
improbable unless
is
degree
This
of skill.
flippers
a considerable
these
with
Coats,
recognized
of State v.
in the case
distinction is
In
not exist.
supra,
did
in which the element of skill
degree
any
If
“..
.
that case the court stated:
substantial
lottery.
.
.”
involved,
.
judgment
not
is
of skill or
contention
appellants’
next consider
We
type
appellee’s
exception of
Law’s
1955 Hasbrook
“gambling
devices”
from the definition
special
1, §23,2and a
legislation
of Art.
in violation
class
§23,4
2,3
4, §22, sub-sec.
of Art.
law in violation
Village
City (1953),
513,
1. State v.
Garden
74 Idaho
328;
(1952),
rel. Evans
P. 2d
State ex
v. Brotherhood
Friends
133,
787;
(1937),
41 Wash. 2d
247 P. 2d
State v. Coats
158 Ore.
102,
Cincinnati
1120,
122,
1102;
74 P. 2d
158 Ore.
74 P. 2d
Westerhaus 327,
165 Ohio St.
the Constitution However, in position.5 their support in merous cases support their by appellant in none of the cases cited analogous presented, here position to those are the facts require reasoning the result the of those cases nor does by appellant. asserted classification, determining validity
In of a thing legislated will, every case, court look behind upon on the basis whether and decide the issue all treats purpose reasonable and or not its example, in alike. For within the class members Brewing Supt. Co. Schmitt, F. Cook v. W. case 270, 19, R. 623, E. 3 A. L. (1918), 120 N. 187 Ind. 1917, pro Chapter 4 the Acts court held that sale, gift, manufacture, advertisement hibited intoxicating liquors, was not void be transportation of registered pharmacists deal gave it cause medicinary The decision purposes. in intoxicants in distinction that a reasonable upon the fact was based intoxicating to which purposes or uses hered to the being put. liquors were statute, Chapter reason, criminal the habitual
For like though constitutional, 1907, held was 82 of the Acts of com to offenders who had gave unequal treatment validity for the The reason crimes. mitted the same legitimate purpose is to be A is obvious: the statute distinguishing the recidivist and between served 481, (1933), 205 Ind. Barr v. State ordinary offender. E. 259. N. 187 Chapter 255 of the held that
Similarly court has 684; 159, (1918), Wiggam Ind. 118 N. E. 187 5. State v. 173, (1919), E. E. Sperry Ind. 122 N. 155 N. 188 Co. v. State & Hutchinson 95, (1927), 584; Ind. v. Hensler 199 Fountain Park Co. (1921), Board, 465; Ind. etc. 192 Davis Co. Construction Armstrong N. 629; Ind. E. v. State 132 N. E. 3. *9 of of the Constitution Acts not violative of was the trucks on in of motor Indiana its classification ground one and two- exempted that from taxation it vehicles, by passenger as distin- drawn wheel trailers guished had a relation- from trucks. The classification highway fell within each ship to and all who hazards Eavey Company v. De- were treated alike. classification Treasury (1939), partment 216 Ind. N. State of E. 2d 268. general re- the rule with
We have heretofore stated gard supra, §23, application to the Article follows: question classification, privi “The under the
lege and the immunities clause of Indiana Constitu (Art. 1, §23), primarily tion is for the legislature question judicial and does not become a clearly appears it unless legislative classification is not based on substantial subject-matter, distinctions with reference to the manifestly unjust Phillips, is .. unreasonable. Valparaiso, etc., et al. (1954), et al. Officials of 414, 421, 120 233 Ind. E. 2d N. 398. Also, determining legislative in whether or not a clas “special” and, therefore, sification is reasonable or vio Constitution, every lative of pre reasonable sumption indulged must be in favor the con stitutionality aof statute. Heckler v. Conter 376, 187 206 Ind. E.N. 878. adopt When we us, above rules to the facts before we although are confronted the fact appellee’s may physical have certain resemblances so-called one-ball machines and metered free- play pinball produce machines which do not free play mechanically, say we cannot it unreason- is distinguish arbitrary able or between such machines give appellee’s only mechanically machines which right replay. conferred immediate Where the imme- right conferred, replay mechanically diate then is necessity player there is no to redeem the free games right won into cash order to exercise such cashing .replay, probability and the in his win- of his nings games thereby greatly is diminished. free Where replay, entice- must be redeemed in cash order However, game monetary. ment of the become well prize in the form an immediate where the conferred, prob- more replay mechanically it is much “prize” in the continued able that will be utilized player. entertainment the incen- In one case gain. monetary enter- tive is unearned In the other tainment. Thus the distinction between *10 types public morals and the of machines is related to two therefore, is, and reason- substantial welfare provisions the constitutional able and valid related to above referred to. the act that appellants’ contention next consider
We Indiana.6 4, 19 of the violates Article Constitution § Concerning the Crime “An Act The act is entitled as Gambling Providing Appellants Penalties therefor.” enough in not act is broad title to the assert that this exempts this it that mention the fact it not does thereof. gambling penalties from the specific form 2, appellants sub- reason assert Section For this act, 4, exceptions to the 3 and which contain sections support In down as be stricken unconstitutional. should Marion appellants cite the cases of position, of their 586, (1939), 21 E. Twp., 215 Ind. N. etc. v. Smith School Young (1903), 162 Ind. 412; Railroad Co. Wabash 2d However, (N. S.) 102, 1003, A. 1091. 4 L. R. 69 N. E. subject pro- “Every one but and matters act shall embrace 6. subject therewith; expressed erly shall be which connected _ act, subject any in an which if shall be embraced the title. But only title, expressed such act shall be void in the shall not be as to so much expressed in the title.” shall not be thereof as 4, Art. §19. presented. those cases are of the not decisive issue here case, Chapter supra, The Smith involved the Acts 1983, Providing which Act was entitled as “An levy support of a tax to common schools state, invalidating proviso . . .” but had in it a teachers approved by department not contracts board or case, supra, page education. The Wabash involved 1889, of the Acts of was entitled as “An Act for protection discharged employees prevent black- listing.” employees applied Insofar as it not dis- charged, voluntarily but who had left the em- master’s ployment, provision it held was void latter because was not embraced the title.
It is difficult analogy to see an where can be drawn from the above decisions to at the case bar. title to challenged
the act by appellant here is broader than the act itself because the act is entitled “An concerning Gambling, act . the Crime of . .” but validity challenged of the act it because does not gambling being case, cover all pro This devices. objected visions appellants which are are not to be condemned §19, supra, under Art. for it has long objection been held it an is not that the title legislative of a general, act is too broad or or that comprehends legislates Wayne more than the act upon. Township v. Brown 841; 205 Ind. 186 N. E. *11 Ule v. (1935), State 255, 208 Ind. 140, 194 E.N. 101 A. L. R. 903. sufficiently title of act the expressed subject- the give thereof,
matter to reasonable persons notice to in gambling terested the in of inquire crime to into body the of the act. The did title not need to be an abstract of the entire contents of the act. Al- bert v. Milk (1936), Control Board Indiana 210 Ind. 283, 200 N. E. 688.
46 argument appellants’ next trial the
We consider jurisdiction court no the official action had to thus control judicial attorney, prosecuting is a who prosecuting at officer. true that a While is torney judicial a he is officer the sense that prosecution of to the vested with discretion as broad actions,7 however, fact not mean criminal this does jurisdiction in re courts are without all cases issue by straining rights property are invaded orders where Feeney Superior his acts. As was in State ex rel. v. said County 78, 79, (1984), 188 N. Court Marion 206 Ind. 486, 487; protection E. “... where for the the rights restraining property incidentally and involves enjoining prosecutions criminal or the enforcement of destroy jurisdic statute, criminal not fact will every consistently tion.” The rule been reiterated has question case where the has arisen since cases County Fry Superior ex rel. Lake State Court of v. 355, 310; Egan (1933) , E. ex 205 Ind. 186 N. State rel. Superior (1937), 303, 6 v. 211 Court Lake Co. Ind. Holt, 945; Dept. v. etc. E. 2d Financial Institutions N. 293, (1952), E. 2d 629. 231 Ind. 108 N. jurisdiction enjoin then, court’s
The test by judicial function, determined prosecutor in his pro- (1) primary purpose effect of whether ceedings prosecutions enjoin prose- is to criminal rights being secondary cutor, property considera- with tion, (2) primary purpose effect whether property rights, protection of re- is the with thereof being incidentally only prosecution involved. straint to seize all Appellants’ decision City Indianap operated appellee in owned (1938), Circuit Court ex Freed v. Martin rel. 7. State Superior Egan 910; ex rel. Court State 152, 14 N. E. 2d Ind. 945; Lynn v. State 6 N. E. 2d Lake Co. Ind. (1934) , N. E. 380. 207 Ind. *12 apparently assumption olis on an based that portion exempts that of the act which such ma- penal thereof, provisions chines from the is un- mala, constitutional; that said machines are se and right appellee property therefore that no assertible has However, opinion, therein. for stated reasons in this against we consider the act to be constitutional as grounds legiti- Therefore, appellee herein asserted. has property ownership mate in the said machines which he protection to is entitled to unless appear it is further made to that said are not machines type exempted by that, contrary of the the act and to the express presumption act, games the free awarded by specific exchanged such machines were in instances “thing allegation for some other of value.” There is no effect in the this record. Under the law presented, say and facts thus we cannot that jurisdiction the trial court without was hear appellee’s right injunctive against determine relief property by seizure of appellants. his enjoin enforcing does not prosecutor the law specific instances where a crime have been com- enjoin making general It mitted. does him from seizure property, of lawful expressly “pre- the use of which is sumed” statute to be lawful.
We next appellants’ consider contention that the com- plaint did not state facts sufficient to constitute a cause action, issue appellants’ was raised demur- support rer. In contention, appellants contend appellee was not entitled equi- to ask for the sought table relief which he first, for the ap- reason pellee came into court with and, unclean secondly, hands because, record, on the facts of the business, his protection, which he seeks unlawful. Both contentions substantially involve support same issue. In of these appellants
contentions assert the Acts of the definition machines within slot (being pp. 1539-1540 Assembly ch. General act Repl.), and that said §§10-2326-2328, Burns’ *13 by implication by indirectly repealed directly or was not 1955, full force and is in Act of Hasbrook so-called and effect. Act was that the 1935 support their contention
In of Act, appellants fact repealed by cite the the 1955 not enacting clause, title, nor neither any body makes reference to the the 1955 Act of legislation. any previous In further repeal of position, appellants cite the fact that re- support of this favored, implication that a statute will are not peals only repealed where and to the impliedly be considered The law on this conflict exists. that irreconcilable extent implication as follows: subject by has been stated Statutory Lewis, Construc- In 1 “. . . Sutherland implied repeal §247, ‘An results it is said: tion necessary operation the terms and enactment some harmonized with the terms and cannot be of which necessary later lative act. In such case the an earlier effect of legis- expression prevails the last law as will; the former law is construc- therefore supposed tively repealed, law-making power be that the it cannot since in to enact or continue intends repug- The which contradictions. force laws nancy position whatever being ascertained, the later act date or force, displaces by repeal has full precedent in the law is inconsistent with 118, 121, Newbauer State 200 Ind. it.’” E. 827. N. necessary for us to It therefore becomes examine the they pinball as of statutes relate two the anti-slot of Ch. 321 of machine Section machines. things, supra, among provides act, as other follows: a machine, ma- “Any apparatus or device is slot provisions if of this act chine or device within adapted, way it is one that is . . . use such that, money any piece result insertion object or coin or other such machine or de- operate may vice operated, is caused or any reason element chance or other out- operation unpredictable come user by him, such may receive any or become entitled to receive piece credit, money, thing value, or allowance ... or the user secure additional chances rights machine, to use apparatus device,...” such (Our italics.) §10-2327, Repl. (Acts Burns’ 1956 321, §2, p. Ch. 1539.) pertinent parts of the 1955 Act have heretofore been set out. provisions We find that the of the latter
act specifically refer to machines, which were not mentioned in act, that, the earlier by express terms, provisions pin- those exclude machines, ball only games machines award free mechanically conferred, general from the classification *14 gambling devices, are, otherwise, illegal which made by both The provides acts. latter act further the that games, conferred, free so presumed shall be to be without provisions value. These the two express acts are in and Therefore, direct conflict with each other. the 1955 Act, expression public policy by which was later legislature, repealed by must considered to have im- plication part Act, that which is in conflict the 1955 with Act. conclude, therefore,
We that the appellee’s pinball legal presumed machines is to be under the 1955 repealed parts Act and that said act those of the 1935 Therefore, Act were in conflict appel- which with it. appellee’s complaint contention that lants’ did not state facts to a cause sufficient constitute of action is not well founded. appellants’
We next consider contention that the court overruling erred in their motion for a new trial which
appellants (1) court asserted that: The decision (2) by evidence, is con- was not sustained sufficient trary Essentially presented to law. issue same grounds. Therefore, they will be each of the above conjunctively. treated injunctive granting judgment to
In order sustain the relief, upon appellee to establish was incumbent
following (1) anticipated actual facts: right which, permitted, (2) would violation of a if injury, irreparable in a result substantial remedy at adequate law. no there would be J. 435-436. C. S. the second as- will consider and less controversial
We controversy ap- no pect of the first. There is case having appellee’s pinball machines pellants seized two stating “publicly” determined intention to “their County pinball out of Marion all force of said question City Indianapolis.” no And there is and the irreparable injury action would result but what such business, would have no ade- appellee’s for which it remedy quate at law. extent, remaining
Therefore, question To is: what pinball his operate all, appellee if at did have appellants’ interference from machine without business appellee’s It contention law enforcement officers? leased, type operation of machines of the and, legal absolutely appellee, are sold and distributed therefore, stated, are sufficient to facts above by the trial court. decree of issued sustain hand, appellants owner- contend the other On *15 maintaining of the a violation ship of such machines is per se, appellee and that of the state is law criminal against interference protection whatever no entitled to by operation ownership law enforcement their officers.
51 We operation have heretofore stated that the of such illegal lottery, machines does not a constitute made constitution, Act, and that the 1935 related to the as operation particular type machines, pinball of this of repealed conflicting was provisions reason question the 1955 Act. Our then To what extent is: legalized of such machines under the 1955 Appellants provi- Act? particular call attention to that 2, (4) sion contained in Section sub-section Acts (being §10-2330, Repl., supra), of 1955 Burns’ 1956 application follows: “. .. But in the an definition right replay mechanically immediate on conferred players pinball machines and amusement de- similar presumed (Our vices shall be to without value.” em- phasis.)
It appellants that, is the except contention of for said portion quoted, pinball above owned operated by appellee gambling a device within the act, provision definition of and that said the act no is void and of effect reason that the replay thing of a commercial amusement device a value, judicial of which fact the court must take knowl- edge. Therefore, appellants presump- contend that is, fact, purports tion which the statute to create in void support appel- and without effect. In of this contention lants cite numerous authorities which have held “right play” is, fact, free machine “thing of value.”8 proceed to therefore
We consider the statute light contention. It is an of this elemental rule of statu (1939), 43, 8. Kraus v. Cleveland 135 St. Ohio 19 N. E. 2d 159; (1940), 470, 539; Abbott 218 State v. N. C. 11 S. 2d E. Martin, (1939), 176, Alexander 192 S. C. E. 6 2d S. Sheriff 29; 22, et al. v. Chase Giomi et al. 47 N. Mex. 132 P. 423, 73, Supp. Jur. 2d Am. Anno. A. L. R. 81 A. L. R. Virginia Law Review 955. *16 52 provision
tory single statutory a that construction standing It must be cannot be alone. construed light to it entire act which construed in the of the Reinking Department Treasury (1941), applies. v. 741; App. 63, 2d v. Hasler 109 Ind. N. E. McKee 32 437, E. 2d (1951), 229 Ind. 98 N. 657. that,
Furthermore, firmly the rule is established construing act, susceptible a an it to reasonable if is duty
intelligible construction, of the it give it court to so construe as to effect valid ity provision each this to thereof. rule which This regarding adopted, court has the construction stat utes, “. . If a has been stated as follows: . statute is construction, given it susceptible of will be reasonable upheld, rather than a construction that construction and Shideler, . . v. it invalid. Auditor which would make .” 574, 1, (1922), 578, 2, 192 Ind. 136 N. E. Martin 137 528; Dept. County Public Allen E. 2d N. Welfare 574, 494; 2d (1942), 220 Ind. 44 E. Fair v. N. Potthoff Atty., (1953), child, Prosecuting etc. et al. Schanke Ind. E. 2d 159. 232 113 N. legal refine
Stripped and rhetorical technicalities legislative ment, intent we believe the act reveals a clear device,” “gambling defined as the term therein, apply pinball machines not should award, prize, an limited “an im right replay mechanically To ac mediate conferred.” legislature complish purpose, stated that such right replay presumed “. .. . to be without .. shall be stating, (§10-2330 supra.) By (4), value.” so seems legislature ma to remove such clear intended penal provisions of both presumptively from chines statute, 1935 and 1955 Acts. Under so con strued, operated such machines so could not be consid “gambling devices,” ered since such devices must confer something upon gaining operator a chance of value. Kraus v. Cleveland St. Ohio taking whole, words, E. 2d 159. the act N. In other as express reasonably construed, we believe it can legislative long intent, so
type
question
operated
here in
in such a manner that
player
replay
no
me
receives more than a
*17
conferred,
chanically
they
to
treated as are
are not
“gambling
maintaining
devices,”
persons
other
nor are
gamblers
“professional”
them to be considered as
sub
ject
penal
to
provisions
that
of said act. We believe
is a
this
construction of the
reasonable
act
that
machines,
appellee’s
subject
operated,
if so
were not
by appellants.
If,
hand,
on
seizure
the other
said ma
operated
right
chines were
an
so
that
“immediate
of
although
replay,”
“mechanically
players,”
conferred on
exchanged
was,
fact,
by
in
players
such
for
or other
cash
things
value,
presumption
of
then the
of
act
operations
penal
excluded
of
such machines from
light
provisions disappears in the
of the facts. See:
Chicago M.,
(1939),
Morris v.
St. P.
Pac. R.
1
&
Co.
587,
119,
2d
P. 2d
Wash.
In other we construe the statute mean that if right presumed replay, by such of of 1955 not Acts thing “exchanged value,” was, fact, “a to be in for any money, credit, thing value,” allowance pro- or as Acts, vided the 1935 then such of said illegal machines became under the terms of both acts. now, therefore, We examine the evidence to determine whether, stated, under the law as it is sufficient sus
tain as decreed court. We find that there no evidence in the record that any exchange games there was free such for things money Appellee’s or other of value. witness testi- that, anybody paid anything fied “If off ever other than games taking
free we them we are machine instruct upon Appellants this out.” submitted no evidence issue knowledge, now it is common without but assert that games necessity proof, ma that the free which the gam practice perverted to chines award are in common bling exchanging replay purposes by such things money value, or other as was stated People Device v. One Mechanical in the court cases 38, Machine, E. 2d (1956), App. Ill. 2d 132 N. etc. Miller 172 Va. v. Commonwealth 2 E. 2d 343. S.
However, stated, no evidence heretofore there is exchange actually practiced that an was the record such in connection with the machines seized such city County in Marion or the of In- practice is common practice Certainly the is not such common dianapolis. knowledge judicial knowledge court can take a fact. of such
Therefore, before on the the record us basis stated, the law as above we conclude there was suf- court the decree of the to the ficient evidence to sustain *18 interfering enjoined appellants that it the from extent maintaining leasing, appellee’s oper- or of with businss by appellants, ating pinball type of the seized machines long right replay as of con- the extent and the to so exchanged thing by not for some machines is ferred such value. of injunction de the to
We therefore examine decree termine it conformed to the law and evidence whether that the
as above stated. conclude We enjoined the it the was lawful extent to long appellee’s so as said seizure of slot machines operated by in the machines were manner evidenced the recognizing However, record. the fact that maintenance legal only made on the basis the of such machines is statutory presumption games that the free awarded were “without to presumption value” and that value such as might light disappear well in which the of the facts might presented particular case, be con- another we issued, contrary injunction, clude that the to law unconditionally attempts extent it perpetually enjoin appellants interfering with or intimidating owners, lessees, operators employees located, pinball of locations where such machines seizing, confiscating taking possession and from pinball such machines.
During pendency case, “(4)” of this sub-section of Section 2 (§10-2330, supra) Acts was amended House Bill which added the italicized words to provision Act, of the 1955 as follows: Provided, “. . . application That of this definition right an immediate and replay unrecorded mechani- cally players pinball conferred on machines simi- presumed lar amusement shall devices be to be without (Our italics.) value.” suggested
It that, amendment, reason question presented by the case before us be moot.
However, it appear does not from the record that replay was recorded on the machines under consideration in the case now before us. Obviously purpose of the amendment was to further type limit the machines excluded from the penal provisions of the apparent act. It seems improbable would be much more that unrecorded free games might exchanged money things or other exchange value, legality is the test of of the use provisions of such within the of both the 1955 Therefore, and the 1957 Acts. not 1957 Act does moot make the issues involved in this case.
The decree is herein affirmed to the extent it en- interfering
joins seizing appellants the with remaining portion appellee. of the to And court is ordered the decree reversed. the is per- be provide amend its decree long to be petual and continue so machines are as such and type specifically exempted the statute of the games not in fact free conferred such machines value, more exchanged things money other fully opinion. in stated
Judgment part, reversed therefore affirmed is part. part and ordered amended in JJ., Landis, concur. Bobbitt, Emmert and Arterburn, J., opinion. dissents with
Dissenting Opinion majority opin- from the J. I dissent Arterburn, equity civil I do not think ion because take and con- assume to over of a court side should side, nor the discretion the criminal trol gov- of our branch and law enforcement executive brought against prose- ernment. an action This is attorney, sheriff, police, cuting chief of and others constituting enforcement arm of execu- the law government. objective The main tive branch our enjoin admitted, action, it will have be government from exer- officials of this branch enforcing they cising discretionary powers in what their namely, law, the criminal believe to be violations jurisprudence gambling. criminal Under American given the widest in a criminal case defendant prove him- opportunity to clear himself most liberal against self-incrimination, rights innocent, with self trial, presumption rights jury and with ato with the threatened violation reason For that innocence. alone, en- not, purpose for that will law a criminal many of his deprive defendant joined and thus *20 safeguards. Injunctions, §150, constitutional S., 43 C. J. 760; p. S., Injunctions, §156, 43 pp. C. J. 771.
Likewise, equity the civil a and side court should not interfere with the criminal enforcement func- law government, particularly tions officials in where exercising discretionary powers. that branch are their departments kept sepa- The functions of be must these judges often, rate under the constitution. we Too are prone personal judgment to substitute our that of government. officials other branches of the discretionary power The enforcement officials law to public particularly vital interest. This is true judgment with prose reference to the exercised cuting attorney. His official in his field discretion is as independent judge may as that A court. not direct prosecuting attorney approve disapprove an af or prosecution. fidavit is to be the basis a criminal State ex rel. Freed v. Martin Circuit (1938), Court v. Crimi 152, 14 910; Spencer Ind. N. E. 2d State ex rel. Court, nal Marion Co. 214 Ind. E.N. 1020, 16 2d N. E. 2d 888. appellee
The enjoin- contends in this it is case ing appellants doing acts outside their official power capacity; however, it should noticed that they are not capacity sued in their individual but each are capacity prosecut- case sued in their official ing attorney, sheriff, police, per- chief etcetera. The against manent them in their official capacity. allegations in this case are in substance that the
plaintiff-appellee corporation is the pin- owner of certain machines, ball and that conducts a lawful business leasing locating and otherwise these machines so as to an receive income appellee therefrom. The states appellants will, restrained, intend and unless operators locations wherein
“arrest the owners located,” appel- pinball and that said are machines belonging to destroy machines lants will seize and “for will be done appellee. That acts all these forcing coercing said own- intimidating, purpose of such operators locations wherein ers permit continued are located to refuse premises.” their machines in of such consequences point that these add at this We any prosecutions, normally threatened flow from in such cases. prosecutions for law violations *21 the all inclusive and leaves The decreed is any appellee prosecutions immune from or seizures gambling they devices the even if are used as machines in the future. enjoin- judgment perpetually court a
The trial entered interfering ing plaintiff’s busi- appellee with the “from pin- all and lessees ness and the business of owners Indiana, County, and ball in Marion machines located any arresting, coercing, manner whatso- . . . or in from employees of intimidating owners, operators, or the ever located, or now pinball locations where said machines Indiana, County, located, and in Marion tak- any seizing, confiscating, manner whatsoever or in pinball machines ing possession the aforesaid into their of leas- interfering conduct plaintiff” in the the with ing distributing machines. pinball the and meager judgment support of this
The evidence largely concerned with It is and not substantial. ap. machine, how and operation mechanical very evi- little There is pellee conducts its business. concerning machines. the actual use of dence were seized testimony of the machines is that two appellee cor- office, president and the the sheriff’s poration being says he done does not know what was they (whether with the used machines when were seized gambling not), for he talked with has never In sheriff about the machines. these words, allegations other in the com neither the of facts negatives plaint nor these the evidence excludes or being gambling purposes time machines used at the they strongly pleading were seized. A is construed most against pleader. appellee in The burden is on such case to show the use was innocent of machines legal upon at time. The burden is not prosecuting and law enforcement officials make out a Yet, criminal in a this. violation civil case such as reasoning majority opinion. is the tenor of the in the 38, Board, (1951), 230 Ind. State ex rel. etc. v. Goodman 421; Pittsburgh, etc., R. v. Town N. E. 2d Co. 914; (1902), 330, Yoder Crothersville E. 159 Ind. N. 630, Cole, E. 545. App. Trustee 172 N. 91 Ind. know, legal right far So as we the sheriff had a to seize probable the machines or if he had cause to be- devices being gambling devices, they lieve that were used as places frequented by at the time. children at 1947, being 188, §1, 624, p.
Acts ch. and Acts §9-604 being §2, p. 661, ch. 1956 Re- Burns’ §9-605 placement gam- authorize seizure devices used for bling by the sheriff. Before the can be de- *22 stroyed, get for that sheriff must court order purpose, and the owner There is no must be notified. allegation case, petition proof nor fact in this following legal doing anything the sheriff is but procedure. resort, remedy appellee a last had a As thought replevin particular case if it in the seizure remedy adequate under appellee unlawful. The has an the law. only testimony attorney prosecuting
The that links the
60 with that he this case is his sole statement in the record “they [pinball believed the law in violated machines] privilege their then so to believe use.” This was his being nothing enjoined. or without unlawful There was improper jurisdiction in these remarks. No court has legal expressions opinions prose- to restrain the or of a cuting attorney though they may or even intimidate prosecution create fear of in others. majority opinion strong possibility
The concedes the gambling that the de- machines could be used as particular cases, vices but states “the was oper- lawful to the extent that . . . said were machines (Our ated in the manner evidenced the record.” ital- ics.) point any Our an evi- is that there is absence dence in the record as to how the seized machines were actually any operated time, other machines at the or how concerning operated threats of were at the time prosecution operators were made. None of or seizure were located took the where stand surrounding par- testified as to the circumstances legal illegal par- operations, in the ticular whether The neces- specified, as for relief. ticular cases a basis sity specific proof elemental in such cases. of such aught proof in For
There a failure this case. record, were appears the machines seized in the being gambling devices. used as majority opinion not lend cited in the do cases equitable support proposition actions to the brought against prosecuting and enforcement law rights. property protect State officials in this case to Superior County (1933), Fry Lake 205 ex rel. Court v. 310; Feeney Superior 355, ex rel. 186 E. State v. Ind. N. 486; (1934), 206 Ind. N. E. State ex Court rel. Superior Egan (1937), 211 Court Lake Co. Ind. v. Dept. 945; Holt, Financial Institutions E. 2d N. 293, 108 N. E. 2d 629. Ind. etc.
An in all examination of these shows cases them, injunctive attempted relief was denied those who prosecuting to officials. restrain the and law enforcement supra, Dept. Holt, v. In the Financial Institutions case granted, relief was but the evidence showed prosecution pending there was no or threatened criminal attorney party prosecuting thereto. and the was not brought primarily the con The action was to determine stitutionality Depart regulatory powers of the ment of Financial installment sales. Institutions over hand, Egan
On the other in the of State ex rel. case Superior Co., supra, Court Lake the facts were sought enjoin plaintiff similar those here. A prosecuting attorney and the chief law enforcement of including County, sheriff, mayor, ficers of Lake and police Hammond, interfering City chief of operations dog plaintiff with the of a track which the alleged and claimed did not the laws of the violate State any way. attorney prosecuting of Indiana in and law enforcement officials claimed it was used as a gambling alleged case, device. As was prosecutor and law enforcement officials threatened arrest, prosecute, plaintiff’s and interfere with the business, they large they claimed that had a financial track, great in the property investment would suffer Judge (211 result. in that Treanor case Ind. loss pp. 308, 309) speaking 303 on for the court which re grant prohibition, following fused to a writ of made the statement: injunctive complaint “The for relief in the instant case, and thereon, the writ issued disclose that the sought,
main writ, relief temporary obtained protection was from threatened pros- criminal . . ecution. . “The relator and other law enforcement officers of County Lake duty are under sworn to enforce the per- and in the of Indiana criminal laws of State duty in the protected law
formance of that them, in the It is exercise of their discretion. instance, plaintiffs are vio- to decide whether first lating *24 This any law Indiana. criminal the State of of discretionary interest power is vital to the too by the subjected public to restraint order to power possessed as a and exercised courts. This power the part independent of the co-ordinate government and for executive branch of the state by the subject interference not to that reason is judicial government. the branch of County no has Superior of Lake “The Court proposed power judicially the determine whether a plaintiffs plan of constitutes below and to violation of the criminal law of state officers, enjoin relator, from or other enforcement performing pending plan officers their enforcement duties as law criminality of the the determination operation.” me, Egan To this case is on all A fours with case. prohibition against writ of was issued trial court entertaining jurisdiction prosecuting The the case. attorney introducing any in that case had no burden of rights prove Property evidence criminal violation. objective purpose were involved there but the main case, this, impede of that inas was to and restrain the discretionary in actions of law enforcement officials carrying they out what felt to be their official duties. brought by know that the in We this case was operators impede and owners of machines to attorney, sheriff, prosecuting restrain interfering officers, police with what such officials thought were violations and the use of the machines law gambling provides the The law criminal device. not place for the determination whether or courts as questions the criminal laws. These there violation of is a my opinion appellants In settled there. should be Egan prohibition, as a writ of were entitled to entertaining prohibiting juris- Case, the trial court from diction of this in the first instance. case step equity
It is said that the of the court will side jurisdiction property over if into the criminal of a court rights merely are involved and criminal violations are may ask, incidental. law One what threatened criminal prosecution prop- does not involve either some form right erty personal privilege? latter The personal liberty important includes that of far more right. property equity may than a If the crimi- invade guise property, protecting then nal domain under the guise greater do so with reason under the every protecting liberty. logically, personal out Carried adjudicated equity prosecution criminal couldbe first asking injunction against enforcement for an law officials. judgment should be reversed with direction *25 judgment appellants.
enter for the Reported N. E. 2d 610. Note.— et al. v. The Adams Board Review Indiana
Employment Security Division et al. 29,567. Filed June
[No. 1957.]