Opinion
No. 24550
Decided April 11, 1934.
Constitutional law — Municipal corporations — Due process of law — Police power — Ordinance prohibiting slot machines valid — Exhibition, maintenance and operation prejudicial to public good.
ERROR to the Court of Appeals of Hamilton county.
Early in the year 1932 the council of the city of Cincinnati passed the following ordinance:
"Sec. 663-3. Slot Machines, exhibiting and maintaining. It shall be unlawful for any person to exhibit or maintain, or cause or permit to be exhibited or maintained, any machine, device or instrument which may be operated by the use of any coin, token, slug, or disc, whether said machine, device, or instrument purports to vend or distribute merchandise or to furnish recreation or amusement, if said machine, device or instrument when so operated, returns and/or distributes more or less merchandise than it purports to return or distribute, or returns or distributes one or more coins, tokens, slugs, or discs. Any violation of this section shall be punishable by a fine not to exceed One Hundred ($100.00) Dollars and each day's exhibition or maintenance of such machine shall constitute a separate offense."
On April 29, 1932, Henry Myers, the plaintiff in error, was conducting a drug store in the city of Cincinnati, in which he maintained a so-called "Big Ben" vending machine, similar in appearance to the conventional type of slot machines which have been frequently in evidence during recent years. Upon the insertion of a five-cent piece in the slot of this machine, a lever on the side thereof is released, which, when pulled down by the operator, causes the revolution of three separate parallel wheels, on the outer surface of which there are visible through a glass covering certain colored designs in the form of lemons, bells, oranges, etc., underneath which are alleged "witty sayings." When the wheels stop rotating, three designs are to be seen in a row, with their accompanying alleged "witty sayings," one on each wheel. The machine may automatically release two or more circular tokens of the same size as a five cent piece, on one side of which is stamped "For Amusement Only" and on the other side, "This token has no cash or trade value."
These tokens may be used for the purpose of replaying the machine, whereby the operator experiences the mental stimulation of seeing the wheels go 'round, observing the designs, and is afforded the edification and amusement of reading the "witty sayings." Continued playing of the machine may bring the reward of additional metal tokens, when the mechanism operates in a certain way. The machine also contains cylindrical shaped packages of candy mints, which can only be secured when a five-cent piece is inserted in the slot. To obtain the mints it is necessary to turn a wheel near the bottom of the machine. They are not automatically discharged.
On the date above named, two members of the Cincinnati police department, dressed in "plain clothes," entered the store of plaintiff in error and operated the slot machine. One of them received several tokens and asked the plaintiff in error to "cash" them, which he declined to do. Thereupon, plaintiff in error was charged in the Municipal Court of Cincinnati with a violation of the quoted ordinance. He was found guilty and fined $10.00 and costs. He prosecuted error to the Court of Common Pleas of Hamilton county, which reversed the judgment of the municipal court. Error proceedings were then taken by the city of Cincinnati to the Court of Appeals, which reversed the judgment of the Court of Common Pleas and affirmed that of the municipal court. The case is now in this court upon petition in error, filed by the said Henry Myers as a matter of right.
Messrs. Nichols, Morrill, Wood, Marx Ginter, for plaintiff in error.
Mr. John D. Ellis, city solicitor, and Mr. Francis T. Bartlett, for defendant in error.
It is contended by plaintiff in error that the ordinance in question is invalid because it violates the Fourteenth Amendment to the Constitution of the United States and Article I, Section 19 of the Constitution of Ohio.
Many recent decisions are to the effect that slot vending machines of the general type involved in this case, which in return for coins deposited therein dispense merchandise, accompanied at intervals by a varying number of checks or tokens which may be used either for obtaining additional merchandise or for securing additional amusement by continuing the operation of the machine, are gambling devices. 81 A.L.R., note beginning at page 177; 38 A. L. R., note beginning at page 73; 12 Ruling Case Law, 730. These decisions appear generally to be based on the theory that devices of this kind encourage and stimulate the gambling instinct of receiving something for nothing, or more for less, and are in such contravention of sound public policy as to come within laws relating to gambling and the exhibition of gambling devices. However, our sole function is to decide whether the ordinance before us constitutes a valid exercise of police power on the part of the municipal authorities of the city of Cincinnati.
Generally, the power of municipalities to enact and enforce police regulations within their boundaries is only limited by general laws in conflict therewith. Article XVIII, Section 3, Constitution of Ohio; 8 Ohio Jurisprudence, 347 et seq.; 28 Ohio Jurisprudence, 101.
The constitutional provisions relied upon by plaintiff in error protect the citizen in his right to pursue any lawful business, but they do not prohibit legislation intended to control pursuits which because of their nature have injurious and harmful possibilities. Even if the slot machine involved in this case is manufactured and intended for lawful operation, its potentiality and design is such that it may be easily put to unlawful use. The regulation or prohibition of such a mechanism need not be postponed until such event occurs. This principle is expounded and applied in the following authorities:
Murphy v. California, 225 U.S. 623, 56 L. Ed., 1229, 32 Sup Ct., 697; City of Burlingame v. Thompson, 74 Kan. 393, 86 P. 449, 11 Ann. Cas., 64; City of Shreveport v. Dale, 149 La. 439, 89 So. 408; 6 Ruling Case Law, 220 et seq.
The city has the right to determine whether the exhibition, maintenance and operation of slot machines as defined in the ordinance are prejudicial to the public good. 8 Ohio Jurisprudence, 408.
Being of the opinion that the ordinance in question constitutes a valid exercise of police power and that the defendant was properly convicted under it, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.