Untitled Texas Attorney General Opinion

September 5. 1951
Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas Opinion No. V-1271
Re: Applicability of House gill
No. 326, making possession
of certain gaming devices a
felony, to “pinball” or “mar-
ble” machines which pay off
the winner in free games
rather than cash or physical
Dear Sir: property.
Your recent request for an opinion asks.,in general,
whether House Bill No. 326, Acts 52nd Leg., 1951, ch. 178, p.
299 (codified as Article 642a. V.P.C.), makes it unlawful to *own,
keep or possess” devices commonly known as “pinball” or “mar-
ble” machines which automatically deliver free games to the win-
ner instead of cash or physical property. You specifically inquire
as to whether these “pinball” or “marble” machines are prohibited
“slot machines,” as that term~is defined in Section 1 of the Act.
The machines about which you inquire are described in
your letter as machines “whose users propel balls with a plunger”
and which are designed or adjusted so that the mechanism “will
automatically permit a free play when a certain score isreached”
v&&out the deposit of additional coins therein. You further char-
acterize these devices with the following statement:
U ‘Pinball’ or ‘marble’ machines do not contain a
drum or reel with insignia thereon. Rather, they oper-
ate primarily through a series of electrical cross-
connections, which are set in motion whe.nthe ball
touches certain trips and switches, and which reflect
themselves in lights or computers that reveal the
player’s score.”
House Bill No. 326 provides, in part, as follows:
.
Hon. Robert S. Calvert, Page 2 (V-1271)
“Section 1. The term ‘slot machine’ as used
in this Act, means:
*(a) Any so-called ‘slot machine’ or any other
machine or mechanical device, by whatsoever
name known, an essential part of which is a
drum or reel with insignia thereon, and
*(l) which when operated may deliver, as
the result of the application of an element
of chance, any money or property or: other
valuable thing, or
“(2) by the operation of which a person
may be entitled to receive, as the result
of the application of an element of chance,
any money or property or other valuable
thing; or
“(b) Any machine or mechanical device designed
and manufactured or adapted to operate by means
of the insertion of a coin, token, or other object
and designed, manufactured or adapted so that
when operated it may deliver, as the result of an
application of an element of chance, any money or
property; or
‘(c) Any subassembly or essential part intended
to be used in connection with such machine or
mechanical device.
*Sec. 2. Whoever shall manufacture, own. store,
keep, sell, rent, lease, let on shares, lend or give away,
transport or possess a slot machine, as defined in Sec-
tion 1, shall be guilty of a felony and upon conviction
thereof shall be confined in the State penitentiary not
less than two (2) years nor more than four (4) years.”
We agree with your own interpretation of your first ques-
tion -- that Section l(a) is not applicable to marble machines which
have no *drum or reel,” and that it is to Section l(b) that we~must
look to determine whether marble tables and pinball machines are
included within the Act.
277
Hon. Robert S. Calve& Page 3 (V-1271)
It is obvious that coin-operated marble and pinball
machines which automatically deliver, as the result of an ap-
plication of an element of chance, money or physical property,
are within the definition of the term “slot machine” in Section
l(b). Your primary concerri is whether such, machines are in-
cluded within the statutory definition if they pay off the winner
in free games rather than cash or physical property. This ques-
tion is phrased by you as follows:
“SECOND QUESTION: Are ‘pinball’ or ‘marble’
machines which do not deliver money or physical prop-
erty to a’pfayer, but which can be adjusted to award
free games, ‘slot machines’ within the meaning of the
above-quoted definition, said definition being the one
which is contained in Subdivision (b) of Section 1 of
House Bill 326 ? n
.We assume that you are interested only in those ma-
chine~s which are constructed or adapted to award free games
rather than t.lz which can be so constructed or adapted. There
is a difference. Hightower v. State, 156 S.W.Zd’ 327 (Tex. Civ.
App. 1941). The words of the statute cover only that type of ma-
chine which is “designed and manufactured or adapted so that
when operated it may deliver . . . any money or property.“l Our
answer to your question will refer only to those machines which
are designed’ and manufactured or adapted so as to automatically
release or deliver free games to the winner.
At the outset, the treatment of these so-called “free
game” machines in the law and public policy of this State should
be reviewed in order to keep in mind the nature of the subject
matter being dealt with by the 52nd Legislature. Marble and pin-
ball machines which pay the winner in free games instead of cash
have been condemned by previous statutes and court decisions of
this State the same as gaming devices which pay off in cash or
physical property. State v. Langford, 144 S.W.2d 448 (Tex. Civ.
App. 1940); Broaddus v. State, 150 S.W.2d 247 (Tex. Crim. 1941)
l/ The statute also covers ‘any subassembly or essential
part-ntended to be used in connection with such machine or me-
chanical device.” Sec. l(c), supra.
278 Hon. Robert S. Calvert, Page 4 (V-1271)
Hightower v. State, 156 S.W.Zd 327 (Tex. Civ. App. 1941); Mar-
tin v. State, 162 S.W. 722 (Tex. Crim. 1942). They have noten
considered mere amusement games for ‘skill or pleasure” by
previous Legislatures and the Texas Courts. The above cited
cases held that the keeping or exhibiting of such machines is
prohibited by Article 619, V.P.C., which fixes a penitentiary sen-
tence for-violation thereof. Article 634, V.P.C., declares the
mere existence of this type of gaming device “against public poli-
cy and a public nuisance.” Williams Mfg. Co. v. Prock, 184 F.
2d 307 (U.S. Ct. App.. 5th Cir. 1950).
It is a proper presumption that the Texas Legislature,
in considering H.B. 326. had knowledge of the fact that previous
statutes, court decisions and declarations of public policy have
placed free game pay-off machines in the same category as slot
machines, gaming tables, and other devices which pay off in money ~;:>
or
or physical property and that the same penalties are provided for
keeping and exhibiting such machines.
Therefore, the question which you have posed is whether
the Legislature, knowing the unlawful and felonious nature of these
free game pay-off machines, intended by its .wording of Section 1
(b) to exempt them from the new law prohibiting possession of
other gaming devices of the same category. Specifically; did the
Legislature use the word “property” in Section l(b) in its broad
sense so as to include Yfree games,” or was the word used in the
narrow sense so as to mean “physical property” and thereby ex-
clude free game machines ?
Some courts have construed the word “property” in gam-
ing statutes to include free games, and others have said that it
does not include them. In almost all instances the conflicting court
decisions are based upon differences of opinion as to the value of
free games and the variation of public policy with relation to free
game payyoff devices in the different States.
We have conducted an exhaustive research of the ‘author-
ities to determine the fundamental considerations involved in the
interpretation of statutes of this character. From this research
we are convinced that the great weight of authority in the United
States compels a construction of Section l(b) of the Act as includ-
ing such “free game” devices, and that the considerations given
effect in such cases are in harmony with the prevailing case law
in this State construing our gaming statutes.
Hon. Robert S. Calvert. Page 5 (V-1271)
awhile the type of prize or award which determines in-
clusion of these devices within Section l(b) is described as “mon-
ey or property,” the cases dealing with this and similar expres-
sions are almost invariably bottomed on the conception of the
particular court as to the’ relative tangibiJity or value of the right
to amusement. as afforded by the free games. Thus, where the
court, as in the majority of the cases, considers amusement to be
of value, the free games are heid to constitute ‘money or property,”
‘property of value,” -a valuable thing,” etc. Those~courts taking
a contrary view invariably base the decision on a conception that
the replay privilege is too inconsequential and trivial to be of
‘value.” or too intangible to constitute ‘property” within the mean:
ing of such s.tatutes , and within the evil sought to be, remedied
thereby.
The basic divergence in the cases is best comprehended
by an examination of the decisions on the subject.
.Rankin v. Mills Novelty Co., 182 Ark. 561. 32 S.W.2d
161 (1930), is a leading case, and one of the earliest, on the sub-
ject. The Arkansas Supreme Court said, at page 162:
‘In order to constitute a gaming device under
the statute, it must be one that is adapted or designed
for the purpose of playing any game of chance or at
which any money or property may be won or lost, and
any one who shall bet any money or other valuable
thing, or”any representative of any thing that is es-
teemed of value, ’ is guilty. under Section 2634 of Craw-
ford & Moses’ Digest, of betting on a gambling device.
By section 2640 of the same chapter of the Diges,t ‘gam-
bling’ is defined as the betting of any money or any val-
uable thing on any game of hazard or skill. It is clear
from these sections and the entire chapter on gaming
that the word ‘propertv’. as used in section 2630, and
.tbe words ‘valuablethin&‘mentioned in other sections.’
are used synonymously, and that any valuable thing or
‘any representative of anv thing that is esteemed .of
value’ is ‘property’ within the meaning of section 2630.
supra. The machine in question is one which always
Gin exchange for a nickel a package of mints, and.
in addition to the mints, a number of ‘slugs,’ in vary-
ing amounts from two to twenty, with which a game may
be played, there being an element of chance in the number
Hon. Robert St Calvert, Page 6 (V-1271)
of slugs obtained for a nickel. Is the right to play a
game obtained in the above manner ‘property’ or a
‘thing of value’ within the meaning of our statute pro-
hibiting the setting up of gambling devices and gam-
bling? We think it is. It is a matter of common know-
ledge that the maintenance of places, having no value
in themselves, but which are used for amusement only,
are among the most remunerative kinds of property,
such as miniature golf courses and other like means
of amusement, and any thing that contributes to the
amusement of the public is a thing of value. . . .*
[Emphasis ours throughout this opinion.]
Howell v. State, 184 Ark. 109, 40 S.W.Zd 782 (1931), follows the
Rankin case, supra, which in turn is followed in Steed v. State,
189 Ark. 389, 72 S.W.2d 542, 543 (1934), wherein the specific
statute involved in all those cases is quoted as prohibiting var-
ious games “at which any money or property may be won or lost.”
!n Boynton v. Ellis, 57 F.2d 665 (C,C.A. 10th. 1932).
the player of the device might receive tokens with which the ma-
chine could be replayed. Certain of the Kansas Statutes involved
prohibited certain games and devices played for “money or prop-
erty,” and other of such statutes prohibited those where cash
prizes “or other valuable things are given.” The court said, at
page 666:
“It seems clear to us that these tokens or checks
.which are obtained by chance represent some value
and constitute property. The best reason for this view
is that the public is thereby enticed into patronizing
the machines. It is the professed object of installing
them. The tokens or checks may be likened to theater
tickets in representing a means of amusement. The
tickets have value. State v. Blair, 130 Kan: 863, 288
I?. 729; State v. Haining, 131 Kan. 854, 293 P. 952.
* The value may be slight, but still it is
. . .
propert?. in that it affords amusement to the players
which entices them into patronizing the machines.”
The citation to State v. Haining is significant in that it held, in ef-
fect, that the amusement at a theater is the thing sold regardless
of whether tickets evidencing the right to such amusement are sold
- 281
Hon. Robert S. Calve&, Page 7 (V-1271)
to the recipient of the right.
Boy&on v. Ellis, supra. is followed in Boynton v. Mills
Novelty Co., 60 F.2d 125 (C.C.A. 10th. 1932).
Of similar effect is Colbert v. Superior Confection Co.,
154 Okla. 28. 6 P.2d 791 (1931), the import of which is that “mon-
ey, . . ., checks, credits or any representative of value” are
class.es of “property” within a statute Using those terms in com-
bination with the term “property.” See, also, Mackay v. State,
83 P.2d 611 (Okla. Grim. 1938). citing other cases to the effect
‘that the Oklahoma slot machine statute was intended to prohibit
play on machines for ‘money or other property.” The court cites
several cases to the effect that the amusement of additional free
plays has a value, small though it be.
People v. Settles, 78 P.2d 274 (Cal. Sup. Ct., App. Div.
1938). considered whether additional free plays to a winner con-
stituted “property? under a California lottery statute, and held
that “the duty of the operators of this game to permit the win-
ner to play further games free is an obligation arising from
contract,” and constituted “personal property.”
‘~Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N.E.2d
159 (1939), considered a statute prohibiting devices played for
‘gain” in connection with another statute prohibiting devices
played for “money or other property.” After holding that amuse-
ment is a thing of value, the court concluded that the machine was
a gaming device under both ‘statutes:
Middlemas v. Struts. 71 N.D. 186. 299 N.W. 589 (1941),
deals with a device under a North Dakota lottery statute where,
to constitute the offense, it was “essential that the prize or award
which the player may win shall be property or an inter.est in prop-
perty.” Conceding that a statutory definition of “personal,proper- i
ty” applied, the court said:
. . . The language ‘every description of money,
goods, chattels [and) effects’ is broad enough to include
every statutory definition of personal property without
regard to the particular division of our codes in which
it may be found. The word ‘effects’ is one of broad ’
significance. When used alone it has been held to in-
clude everything that ‘can be termed of value.’ . . .
,
282
Hon.. Robert S.~ Calvert, Page 8 (V-1271)
Y
. . . .
Y
. When the player places his coin in the slot,
. .
he accepts that offer and acquires thereby an exclusive
right, as against the owner and all others, to the use of
the machine for the duration of at least one game. If
the player is lucky and wins, the right to the exclusive
use of the machine is continued for an indefinite dura-
tion. The right to use such a machine for entertain-
ment purposes is a thing of value. . . . It is a thmg
subject to ownership and things subject to ownership
are property. People v. Settles et al., 29 Cal. App..
2d Supp. 781, 78 P.2d 274.
II
. . . The machine here in suit, therefore, is one
in the play of which, the player pays a valuable con-
sideration for entertainment and an opportunity de-
pendent chiefly upon chance to win a prize or award
which is property. . . .”
In holding that free games are within a statute prohibi-
ting games whereby “money or other thing may be won or lost,”
the court in Steely v. Commonwealth, 29.1 Ky. 554, 164 S.W.2d
977 (1942), held that free games are of sufficient value to fall
within gaming statutes, giving particular attention to cases char-
acterizing prohibited games as those wherein the player “hazards
his money on the chance that he may receive in return money or
property of greater value than he hazards.” To the same general
effect is Giomi v. Chase, 47 N.M. 22. 132 P.2d 7,15 (1942), which,
in holding that free games are “anything of value,” cites the lan-
guage of Boynton v. Ellis, supra, that “the value may be slig,ht,
but still it is property, in that it affords amusement to the~playeri
which entices them into patronizing the machines.”
Except for slight difference in legislative history and the
verbiage of the Texas Act, and subsequent consideration of pe’rti-
nent Texas decisions, our conclusion might be summed up in the
comprehens,ive consideration of the point at issue in Co-on-
wealth v. Rivers, 323 Mass. 379, 82 N,E.2d 216 (1948). The Mas-
sachusetts Statute prohibited a lottery to dispose “of any property
of value. ” The device in question gave only free games. After an
exhaustive citation of cases considering the meaning of various
statutory phrases descriptive of prizes and awards or prohibited
games, the court concludes:
.HorL Robert S. Calvert, Page 9 (V-1271)
“By the great we,ight of~authority it is settled as
to machines or devices by the operation of which free
plays may,be had by chance ‘or hasard that the free
plays are,something of value orproperty of valuewith-
in the meaning of the statutes involved, that it is the
right to operate the machine an additional time or times
that is the thing played for, and not the token which re-
presents the value. There are cases in a few juris-
dictions where it has been held that free plays are not
per se things of value, but we are persuaded that the
contrary view supported by the great weight of author-
ity of other~courts of this country is sustained by the
reasoning upon which the results of those cases are,
based, andwe are in accords therewith. In the present
case’ it seems that no tokens representing free plays
were delivered by the machine, but rather that the
machinc~.,operated as to free plays by an automatic re-
corded score. But as is said in Alexander vi Martin,
192 S.C.‘176. 183, 6 S.E.2d 20, 23, ‘It matters little
whether -.. . ~. [the right to play the machine witbout
addition&cost] was evidenced by.tokens or by an auto-
matic recorded score.’ And as pointed out before,‘it
is the free play itself that is the ‘property of value’-
however evidenced.”
There dare many other cases construing statutes which
do not use the word “property,” but which discuss the relative
.value of a free play under statutes which characterize thenpro-
hibited prize as. “thing of value* and other synonymous words.
.Most of these cases characterize the ‘thing:o.f value” with all
of the attributes’of the term “property” in its broade~r sense,
and may be readily aligned with the “property” cases on the
basis of the fundamental concept of the relative value of the
prize. They are:
Harvie v. Heise, 150 S.C. 277., 148 SE. 66 (1929), noting
that since immense sums are paid for amusement it must have a
value; Gaither v. Cate, 156 Md. 254, 144 A. 239 (1929). comparing
free game to ticket to moving picture show and seeing no essential
difference;~State v. Marvin, 211 Iowa 462, 233 N.W. 486 (1930), to
same effect; Green v. Hart, 41 F.2d 855 (Conn. Dist. Ct. 1930).
amusement from free play has value; State V. Mint Vending Machine,
Etc., 85 N.H. 22, 154 A. 224 (1931), comparing free plays to theater
ticket; White v. Hesse. 48 F.2d 1018 (Ct. of App.; D.C. 1931). value
-
Hon. Robert S, Calvert. Page 10. (V-1271)
is the “right” to replay; Jenner v. State, 173 Ga. 86, 159 SiE.
564 (1931). comparing free plays’to admission to movie; Sn -
der. v. City of Alliance, 179 NZ. 426 (Ohio Ct. of App,1931 7’ ,
“amusement is a thing’of value, for which more money is spent
perhaps than for any other purpose;” Painter v. State, 163
Term, 627, 45 S.W.2d 146 (1932), noting that the “right” to free
play has value; State v. Baitler, 131.Me. 285, 161 A. 671 (1932).
holding that tokens “evidence right to operate the ‘amusement.’
Each was a ticket to part.of the game;” and citing the Rankin
case, supra, among others; Appeal of Mills Nove,lty Co.. Etc.,
316 Pa. 449, 175 A. 548 (19341, affirming and adopting;opinion
.. from lower court at 173 Ai 753; citing among other cases Com-
monwealth v. Goldsmith, 17 Pa., Dist.. 81 Co. R; 145, to the effect
that tokens’for replay for amusement have intrinsic value; Ci&
of MiLwankee v. Burns,‘225 Wis. 296, 274 N.W. 273 (1937)., to
the effect that since tokens could be used in place of nickels to
replay pinball machine, t&y have value; Alexander v. Martin,
192 S.C. i76, 6 S.E.2d 2U;(1939), one of first cases dealing with
matic award of free plays on “pinball” machine, holding
that “amusertre& iaxecognized by the courts as a thing of value,”
and citing, among others, w v.. Heise, supra. to the effect
that the thing actually received is the ‘right” to replay, regard-
less of whether automatic or evidenced by tokens; People v.
Cerniglia, 11 N.Y.S.td 5 (N.Y. City Magistrates Ct. 1939), free
play is a “thing of value; ““Couch v. State, 110 P.2d 613 (Okla.
’ Grim. App. 1941). discussing value of free plays under statute
classifying “amusement” along with *property, tangible or in-
tangible . . . or anY,ne+tsuthtive of value or any other thing;”
State v. Wiley, 232 bwa 443,A N.W.2d 628 (1942). contains ex-
haustive,,,‘cit$tions, inclaQfng I- cases, aupra, aroemg the “great
majority,‘“: compares the automatic free game davicea~ %a “token”
devices, notes that free plays on mint vending machines- are in-
cidental to ,the sale of mints, while if ‘a coin is inserted Iin the.
pinball machine solely for amusement, the value of free plays is
measured by the value of the coin, and that “the rule is the same
whether the machine emits disks with wls%& it can be replayed or
works automatically;” Hunter v. Mayor, etc., pBl8J.L. 164.24
A.2d 553 (lq42), citing cases holdtng that amusement has value,
and followed in Stafford v. Garrett, 128 N.J.L. 623, 28 Ai2d 289
(1942); People v. One Pjnbali Machine, 44 fi.E.2d 950 (Dl. App.
Ct., 1942). :dontains exhaustive citations noting that the “valua-
ble thing” won is the “right” to play additional games regardless -
of how +&right is evidenced; State v. Betti; 34 A.2d 91 (hI.3. ,~.
Disk. Ct.: 1943), reversed at 42 A.2d 648. -infra. .free game:amuser
.
285
Horn Robert S. Calvert, Page 11 (V-1271).
ment -a valuable thing;” Oatman v. Davidson, 310 Mich. 57, 16
N.W.2d 665 (1944),~observes that since the plays would ordi-
narily cost the player five cents each, the opportunity to have
free plays is a thing of value, ‘and that there is no difference
in principle between a trade check and a free play;” Thamart
v. Moline. 66 Idaho 110. ~156 P.Zd 187 (1945), containing ex-
haustive discussion of cases and holding “right% free play is
a right of value.
.Cases in the contrary category warrant closer analysis
than the limits of this opinion permit in order to fully appreciate
the basic divergence from the majority and the prevailing trend
of Texas decisions, as hereafter demonstrated. However, sig-
nificant points therein will be noted.’
-Davies v. Mills Novelty Co.. 70 F.2d 424 (C.C.A; 8th,
1934). was concerned with a Nebraska Statute. which had not been
construed by the state courts, prohibiting games of chance for
“money or property” which the court construed to mean ~“money
or other thing of va,lue” but it follows certain minority decisions,
hereafter noted, that mere amusement does not offer a sufficient
incentive to gambling and that the machine “has no’element of
gain or loss, financial or otherwise.”
Chicago Patent Corporation v. Genco, Inc., 124 F.2d
725 (C.C.A; 7th 1941), was a patent infringement case involving
similar pinball machines, wherein defendant contend.ed that the
device was a gambling machine and beyond the protection of the
patent laws. On the basis of Davies v. Mills Novelty Co..*,
the court defined a gaming device as one played for “gain,” the
test being whether it was designed for splay for ‘money or proper-
sty.” ``Obscovipg tsrat``%aothing~of :monetary..value, nothingsuscepti-
ble of purchase and sale passes to the, successful player” [an
obviously inaccurate statement], the opinion concluded that since
issuance of a patent creates a prima facie presumption of utility,
the absence of any showing by defendant to overcome such pre-
sumption and the findings of the trial court that the machine may
be operated “without gain being a factor” and that it was capable
of legitimate use, the court could not hold as a matter of law that
it was inherently a gambling device.
.State v. Waite, 156 Kan. 143, 131 P.2d 708 (1942). dealt
with automatic award of free plays on a “pinball” machine ,under
a statute prohibiting machines “designed for the purpose of play-
286
Hon.~ Robert S. Calvert, Page 12 (V-1271)
ing any game of chance for money or property” and with which,
persons are induced or permitted “to bet or wager any money
or other things of value.” The court noted that no “tangible”
property was awarded, and rested its decision on whether such
free plays constituted *property.‘ It applied a rule of strict
construction. Observing that the Kansas Statutes defined prop-
erty, it would not resort to general definitions of the term. It
then meticulously dissected the statutory definition of “personal
property” as meaning “goods, chattels, effects, evidences of
right in action, and all written instruments by which any pecuni-
ary obligation, or any right or title to property, real or personal,
shall be created, acknowledged, assigned, transferred, increased,
defeated, discharged, or diminished,” Andyconcluded that “prop-
erty” as there used meant tangible property -,-’ something that
could be carried physically. The court declined to discuss cases
from other jurisdictions with the observation that they usually
involved materially different statutes.
In re Wigton, 30 A.2d 352 (Pa. Super. 1943), involved the :
phrases “money or other property of value” wasused in one stat-
ute and “money or other valuable .thing” as. used in another statute,
and held that free games were neithe~r “property of value: nor
“other valuable thing. ” The decision applies a rule of strict con-
otruction and concludes that something tangible like “money” is
contemplated ,by the combination of such words, expressly giving
the terms a narrow meaning. It conceives the mischief to be re-
medied by the statute as not including the award of free games.
Washington Coin Machine Ass’n v. Callahan,. 142 F.2d 97
(C.A.,D.C., 1944), involved the ph,rase “money or property” as
used in the penal statutes of the District. On the basis of the fore-
going cases in this categoryand others, the court concluded that
free games were not of tangible or. material value,.
Like Commonwealth v. Rive,rs, stlpra, on the other side of
the question, State v; One ‘Jack and Jill” Pinball Machine, 224 S.
~W.2d 854 (MO. Ct. of App.1949). sums up the conception that free
games are not Ymoney or property* with exhaustive annotations and
analysis of the cases. The Arkansas c,ases are given special atten-
tion and the main distinction drawn is that the Rankin case, supra,
concluded that the terms “property” and “valuable thing” are used
synonymously, while the Missouri Statute does not contain the
phrase “valu,able thing” or equivalent wo,rds. A rather lengthy dis.-
cussion of the basis of the court’s conclusion that free games are
Hon. Robert S. Calvert, Pa,ge ~13 (V-1.271)
.not property may be summed up in the following paragraph from
the opinibn,~ at page, .S61:
.‘,Does the player receive anything of financial or
economic value ? Rather isn’t this so-called recrea-
tion and* amusement, the ‘antithesis of value 7 If one’s
time is worthanything. it is a loss .instead of gain, a
waste instead of reward. Hope of reward or gain,,above
the amount risked, is the lodestone of gambling.. The 1
fact that one has paid five cents for it does not conclu-
sively fix that, or any other sum,, as its value or any
value at all.”
Referring now. to those decisions which, while snot. dis-
cussing the character of free plays as “property,” do support the
contrary viewpoint that such free games are of inconsequential
value, we briefly note them:
Overby v. Oklahoma City,, 287, P.796 .(Okla. Crim. 1930),
holding that slugs good for free plays were not “something of value”
[it is noted that the case was tried on an ag,reed statement of facts
which recited that the ,slugs had no value] ; People v. Jennings, 257
N.Y. 196, 177 N.E. 419 (1931). speaking of free plays won on a de-
vice. observes that “the product, however. is valueless from a
monetary standpoint, perhaps, if not from any other,” and that the
omission of the phrase ,“other things ,of value’! from the particular
statute spe.aking of “money, or any check or ~memoranda calling for
money” limits its application to thinga of money value; Mills Nov-
elty Co. vW Farrell, 64 F.2d 476 (C.C.A.2d 1933, affirming 3 F. Supp.
555). holding in effect that the ‘insubstantial amusement feature of
the machine” in aid of the sale of mints was not ‘any valuable
thing ,” under.:a ConnecticuLQatute. .and observing.&& *one may
not suppose that a person desiring to gamble would put up money in
the hope of obtaining tokens which can be used only to produce in-
significant humorous sayings. The amusement feature of the ma-
chine does not make the machine a gambling device;” Mills Novel-~
ty Co. v+ Bolan. 3 F. Supp. 968 (N.Y.. D.C. 1933). reluctantly fol-
lowing People v. Jennings, supra, holding that tokens usable for
free games are not of value. [The decision was affirmed at 68
F.2d 1009, on the authority of the Jennings and Farrell cases, su-
E, but, as noted in Petition of Superintendent of Police, etc. 17
A. 753, 758. and State v. Wiley, w, the United States Supreme
Court granted certiorari, later reversing without prejudice after
the New York statute was amended. which action casts a cloud on
.
Hon. Robert S. Calvert, ~Page 14 (V-1271)
the New York cases as authority on the subject.] ; Commonwealth
v. Rling, 13 A.2d 104 (Pa. Super. 1940). citing Pennsylvania cases,
holds that slugs good for replay have no “intrinsic” value contem-
plated by statutes as theretofore construed; Gayer v. Whelan, 138
P.2d 763 (Cal. Dist. Ct. of App. 1943). cites cases to the effect
that free plays are not of “material value,” “sufficient value,” or
“tangible value, ” to constitute “things of value,” and concludes that
intangibles .are not contemplated by the particular statute which
speaks of winning or losing “merchandise, money, or articles of
value, checks, or tokens, redeemable in, or exchangeable for money
or any other thing of value;” State V. Betti. 42 A.2d 649 (N.J. Ct. of
Quarter Sessions 1945). reversing 34 A.2d 91, D, holds free
games to be of recreational or amusement value only and not within
statute condemning plays for “money or other valuable thing.”
The foregoing amply demonstrates the basic considera-
tions upon which the decisions in other states turn. A brief exami-
nation of the Texas cases should sufficiently indicatetheir conso-
nance with the first line of authorities set out. I
The first Texas~ case of significance is State v. Langford,
e, considering free game “marble machines” under Article
619c’V.P.C., which prohibits gaming devices where “money or any-
thing of value is bet thereon.” Noting that the Arkansas Statutes
are “similar in practically all respects” to the Texas Statutes, the
court quotes at length that portion of the opinion in the Rankin case
concluding that “property” and “valuable thing” are used synony-
mously and that “any valuable thing or ‘any repres.entative of any
thing that is esteemed of value’ is ‘property’ within the meaning of
the ,Arkansas Statutes.” The opinion also quotes at length the dis-
cussion in the Rankin case of the value of amusement places which
“are among the most remunerative kinds of property,” [See complete
quotation from the Rankin case at page 5, supra.] For this and other
reasons,,the machines were held to be gaming devices.
The Texas Court of Criminal Appeals in Broaddus v. State.
s, arso held free game marble machines to be in violation of
Article 619, V.PiC. The court quotes verbatim the opinion in the
Langford. case, including the extended quotation tbereirrfrom the
Rankin case indicating the property characteristics of amusement.
In holding that “pinball” machines awarding free games
were used to bet “money or anything of value/ as prohibited by
Article 619, the court in Hightower v. State, sa evidently with-
Hon. Robert S. Calve& Page 15 (V-1271)
out the benefit of the Broaddus case, also cited. the Rankin and
Langford cases, as well as. others previously noted in that line of
authorities. The citations to the Rankin case and Kraus v. City
of Cleveland, z, are of particular signific~ance in that they
hold free games to be “property.”
The Court of Criminal Appeals followed the Broaddns
case on its next consideration of the marble machines’in Martin
v. State, 6~ where it also held that the trial court need not de-
fine a gambling device in its charge where the undisputed evidence
showed that free plays are awarded by the machine.
-To the same effect is Williams Mfg. Co. v. Prock; 86 F.
Supp. 447 (N.D. Tex. 1949). citing the Hightower and Broaddus
cases. The P&ock case was affirmed at i84 F.2d ‘30
1950), the la-urt observing that to defeat a note given in pay-
ment for such free game pay-off devices it need only be shown:
”. .r. that by the law of that State [Texas,] they were,
when exhibited, gambling devices, and their ‘existence’
contrary to the public policy, as well as the specific law
of that State.”
Lastly, in this regard, we call attention to the attitude of
the Texas Courts on lottery and similar schemes where, by a pro-
cess of disassembling the stages of a gift enterprise, attempts
have been made to classify the prizes given a,s “free” awards, and
to remove the element of consideration from such schemes by so-
called “free’ tickets and registrations for the drawing. As best
illustrated by the cases cited in Hoffman v. State, 219 S.W.2d 539
(Tax. Civ. App. 1949), the courts of this State do not hesitate to
I: -hold ~that any&direct consideration, such..asadded..patronage to a
i.
place of business, moving from any of the participants to then giver
of the prize, will support the charges of conducting a lottery. The
1;.
analogy here is in the substance which the courts accord to other-
1 : wise intangible and elusive values in giving effect to the anti-
gambling statutes. As said in a quotation in the Hoffman case of
such a scheme, “there is an indirect consideration paid and re-
[
ceived. * The Hoffman case is also in point on free games, being
“things of value, “‘and cites the Langford and Hightower cases.
The Texas cases, deal primarily with:Article 619,~V.P.C..
which says that any of the described devices shall be considered
as used for gaming “if money or anything of value his bet thereon.”
Hon. Robert S. Calvert, Page 16 (V-1271)
In arriving at the determination that free games are “of value,”
the Texas Courts have accepted and followed the reasoning of the
Rankin case that they are “property” and that in gaming s,tatutes
the word “property” is synonymous with “thing of value.” We
cannot es,cape the Texas Court’s observation in State v. Lang.-
ford, supra, that the Arkansas and Texas Statutes are “similar
inpractically all respects” and the fact that the Texas Court
quoted with approval these wo,rds from the Rankin cas,e:
“Is the right to play a game obtained in the above
manner ‘property’ or a ‘thing of value’ within the mean-
ing of our statute prohibiting the setting up of gambling
devices and gambling? We think it is.”
These same words were recopied by the Texas Court of
Criminal Appeals in Broaddus v. State, supra, and their use in
that case led a former Texas Attorney General, in Opinion No.
O-6431, May 22. 1’945, to conclude:
“It would follow from this then that the right to
play the machine is ‘Property’ or ‘a thing of value,’
therefore, ‘one who deposits a coin and receives only
one play gets value received in the form of amuse-
ment, in like manner, as one who pays a fee to play
a game of miniature golf or other game of amuse-
ment. . ..”
It is proper to assume that the Legislature knew ~of these
decisions by the Texas Courts and that the Legislature used the
word “property” in the sense of its previous judicial interpretation
in this State-~ .Smithv. Texas Co., 53 S.W.Zd 774 (Tex. Comm. App.
1934); Blanscet v. Palo Duro Furniture Co., 68 S.W.2d 527 (Tex,
Civ. App. 1934).
Either “property” or “other valuable thing” would include
free g,ames under these decisions, and it would be improper and
unreasonable to assume that the Legislature, in selecting the word
“property” in Section l(b), intended to adopt the restricted sense
applied by a minority of the States rather than the broad sense ap-
plied by the Courts of Texas, the Attorney General of Texas, and
the great weight of authority in the United States.
I...
:-The word “deliver” may suggest the idea that “property”
awarded by prohibited devices is. intended to mean physical property.
291
Hon. Robert~S. Calvert. Page 17 (V-1271)
Neither term is so restricted in the statute and both are very
generally used in the broader sense. Webster’s New interna-
tional Dictionary, 2d Ed., gives as the first definition of the~word
‘deliver:” “To set free from restraint; to set at liberty; to re-
lease; to liberate, as from control; to free.” Other definitions
given are: “To give or transfer; to yield possession or control
of; to part with; . . . to surrender; . . . to communicate; impart.”
The synonym given is “release.” Free games are delivered to
the winner on marble and pinball machines by the automatic re-
lease of the mechanism for replay.
If the Legislature had desired to limit the term “prop-
erty” to physical property, it could have written the word “phy-
sical” into the definition. This it did not do, and we are not con-
strained to do so by interpretation. Such a construction would in
effect hold that the Legislature intended to exempt free game
pay-off machines from the new law although their only possible
use is a penitentiary offense under Article 619, V.P.C., and their
mere existence is declared *against public policy and a public
nuisance” in Article 634, V.P.C. This would be an unreas,onable
construction and one which conflicts with the public policy of this
.State with reference to these precise machines. Statutes should )
be construed so as to harmonize with the public policy of the State
as expressed in other statutes relating to the same type of gam-
ing devices. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125
(1942); Dolan v. Walker, 121 Tex. 361, 49 S.W.2d 695 (1932);Freels
vi Walker, 26 S.W.2d 627 (Tex. Comm. App. 1930). In the McBride
case the court quoted the following language from 59 C-J.. p. 1038,
Ei 616:
“All statutes are presumed to be enacted by the
legislature with full knowledge of the existing condition
of the law and with reference to it. They are therefore
to be construed in connection and in harmony with the
existing law, and as a part of a general and uniform
system of jurisprudence, and their meaning and effect
is to be determined in connection, not only with the com-
mon law and the constitution, but also with reference to
other statutes and the decisions of the courts.”
Therefore, we conclude that the Legislature used the
word “property” in the broad sense which includes free games,
and that no other words were necessary either in Section l(a) or
l(b) to bring free games within the definition of a slot machine.
292 Hon. Robert S. Calvert, Page 18 (V-1271)
We have been submitted very able briefs by interested
attorneys who contend that a contrary interpretation is proper
because they say *other valuable thing ” is the term which covers
free games and that it was used in Section l(a) and purposely
omitted from l(b). This entire argument is based upon the er-
roneous assumption that “valuable thing” is synonymous with
“free games” and used in Section l(a) for the sole pu.rpose of
covering free games. As heretofore shown, the term ‘property”
in l(a) and, l(b) is broad enough to cover frees games. The addi-
tion of the term “other valuable thing” in Section l(a) must have
been for the purpose of covering something other than free games.
The devices covered by l(a),and commonly known as the one-arm
or console slot machines, do not ordinarily pay off in free games.
The term “other valuable thing” might have been placed in Sec-
tion l(a) to make certain that it covered slot machines which de-
livered any conceivable, prize other than money, tokens, free games
and merchandise, or in an attempt to prevent their existence and
possession for amusement play even when no prize of any nature
is awarded. Whatever the reason, we cannot say that it was solely
for the purpose of preventing payment of free games and that its
inclusion in l(a) and omission in l(b) was intentional on the part of
the Legislature for the purpose of condemning free game prizes on
machines described in l(s) and exempting them from condemnation
as prizes on machines described in l(b).
The briefs submitted by counsel who urge the contrary
view insist that the definitions in the Texas Act are borrowed from
the Federal Anti-Slot Machine Act [P.L. 906. Elst Congress of the
United States,19501 except for the addition of “other thing of value”
in Section l(a); that the Federal Act omitted the words “other thing
of value” and used only ‘“money or property” so as to exclude free
game machines from the Federal law; that the history of the Federal
Act, as shown by the House Committee hearings and report, shows
that “money or property” was not intended to cover free game pay-
off machines; that in borrowing the definitions of the Federal Act
the Texas Legislature must be presumed to have intended the term
to mean the same as Congress intended in the Federal Act; and that
by adding “other valuable thing ” in Section l(a) and omitting it in
l(b) the Texas Legislature intentionally excluded free game pay-off
machines from H.B. 326.
There are many reasons why we cannot give controlling ef-
fect to this aid in interpreting legislative intent. In the first place.
we do not~believe that the wording of the Texas Statute is ambiguous so
.
293
Honr RobertS. Calvert; Page 19 (V-1271)
as to require the application of this. aid in its construction. Even
so, the rule-that a legislative act borrowed or adopted from the
laws of another jurisdiction will ordinarily be given the same con-
struction in Texas that it had previously received in the jurisdic-
tion from which it was borrowed, applies only when there has been
previous judicial interpretation of the law in the other jurisdiction.
We know of no such interpretation of the terms ‘money or property”
in Public Law 906. Even when conditions of the rule have been met,
the rule is a mere aid in legislative interpretation and is by no means
binding or conclusive. Snoddy V. Cage, 5 Tex. 106 (1849); Paragon
Oil Syndicate v. Rhoades Drilling Co., 277 S.W. 1036 (Tex. Comm.
App. 1925). When there are conflicting court decisions in other
jurisdictions, Texas Courts are free to adopt a reasonable con-
struction of the meaning of the terms in question. Howth v. J., I.
,.Case Threshing Machine Co., 280 S.W. 238 (Tex. Civ. App. 1926, er-
ror ref.).
Secondly, in no instance have we found the rule applied
when the courts of the borrowing state have previously given a con-
trary interpretation and meaning to the words used in the borrowed
phrase or sentence. A State Legislature is presumed to know of
the decisions ,9f its own courts and ~to intend the meaning previously
attributed by them to the same words in similar legislation. Smith
.v. Texas Co.,, .s; Blanscet v. Palo Duro, supra. Further, the
rule of applying a foreign meaning to borrowed phrases never ap-
plies when suah constiuction is’contrarv to the spirit and. nolicv of
the jurisprudence of Texas. Paragon Oil Syndicate v. Rhoides, su-
pra; Edwards.hffg. Co. v. Souper
Civ. App. 1926’):. It is certain that the construction placed on the
terms of the Federal Act (restricted use of the word ‘property”
* so as to exclude free game~pay-off marble and pinball machines) is
contrary to the spirit and policy of Texas law on the subject of gam-
ing. See Articles 619 and-634, V.P.C.; State v. Langford. supra;
Broaddus v. State, SE, Hightower v. State, supra; Martin v. State,
supra; and Prock v. Williams Mfg. Co., 184 F.2d 307 (C.C.A. 5th
1950).
Finally, there are other aids to statutory construction of
equal standing and of far more importance in this instance in deter-
mining the intention of the Legislature. These include the public
policy of the State with reference to the subject matter, which has
already been discussed, the old law. the evils sought to be cured,
and the legislative history of the particular Act under consideration.
The old law, which was not repealed, classifies free game pay-off
294 Hon. Robert S. Calvert, Page 20 (V-1271)
machines with all other gaming devices as unlawful and against
public policy in Texas. The evil sought to be cured by H. B. 326
is the mere possession or existence of “illegal gaming devices
. . . kept and operated in this State and taking money from school
children and others in large sums . . . and the fact that present .,I
laws are not adequate to suppress their profitable operation . . . .”
Sec. 9, H.B. 326 (Emergency Clause). ;;g
-c:
It is a matter of common knowledge from the public press Y$;
and public statements of those sponsoring H.B. 326, and the com- .i_
panion Senate Bill (S.B. 323), that free game marble and pinball ‘Tt
machines were one of the evils intended to be more effectively sup- ;;i
pressed by the Act. While H.B. 326 was pending before its passage ~7;
by either House, one of its authors, Representative James B. Adarns,:&~:
,made a public speech explaining the purpose and scope of the pro- .,$
posed law to a conference of the State’s prosecuting attorne s called ‘>y~
In the :c
by the Attorney General of Texas in Austin on March 30-31. 3
course of his explanation of the evils proposed to be remedied by H. ‘MY
~B. 326, Mr. Adams said: ,,f
,,;;
“Then under section (b) we go down and take in any
machine or mechanical device manufactured or adapted
to operate by means of the insertion of a coin, token, or
other object, and designed, manufactured, or adapted so
that when operated it may deliver, as the result of an ap-
plication of an element of chance, any money or property.
Well, as you know, our Court of Criminal Appeals has held
that free plays on a five-ball pinball machine does-con&i-
tute something of value and, therefore, under our present
law every five-ball pinball machine placed in operation in
youid~rugstores, your bus stations, and places like that, “” j.
they do constitute a violation of our present gaming laws.
“Many people said, ‘Well, they are just an amusement
device.’ But we felt otherwise on that; and. as a result of
studying the’crime reports of the different crime commis-
sions, we have had it pointed out to us time and time again
where pinball machines, so-called harmless amusement de-
vices only, are utilized for opening up closed territory to
2/ Proc$edings of the Attorney General’s Conference of
Dist&t and. County Attorneys on Organized Crime, 1951, pp.
58-63.
. --
295
Hon. Robert S. Calve& Page 21 (V-1271)
gambling. They start off with those, and then through
a steady process they get the people acclimated to gam-
ing. Then they can bring in their regular one-armed
bandits and consoles.
~ *Now under this law. under Section (2) if they take
th:counting devices off of the machines -- every.slot
machine manufacturer since 1946, as most of you know.
has had two little devices under the machine. One of
them, every time you win a free play. registers. You
have a button on the left which is your re-play button.
Every time you push that button it registers on one of
the counters ovei here. Then when a man pays you off,
it has a sepagate counter over here. If you just re-play
it, the re-plays show on this one. But if it pays you off,
he reaches under the back at another button, presses it,
and it registers on an automatic counter. Therefore,when
the local coin machine operator comes around to his es-
tablishment, they raise up the machine and look at the
counter and see how many games have been won on the
machine. Then, if he is in the habit of paying off his cus-
tomers when they win, they look at this other counter and
they can determine just how much this man paid out in
cash.
“Well, if they take all those off and fix the five-ball
pinball machines where they do not show a re-play, -- :
where after you get so many thousands in score on the
machine ,it shows ‘a re-play up on the board, -- well, if
they take those devices off, then they would not come under
then terms of this act. However, if they do go that far, then
you can rest assured that it is an amusement device be-
cause a man has to put a nickel in it every time he plays
it. And also, even if the man does say, ‘Well, if you get so
many thousand I will pay off over the counter,’ you can elimi-
nate about 90 per cent of the gambling, unless the man owns
the machine. No operator is going to trust the local drugstore
owner or local beer joint operator to tell him how much he
paid out because, as we have been previously shown, there
is no honor among thieves; and if they don’t have that auto-
matic element of being able to tell exactly how much was
paid off, well.then we will eliminate the gaming aspects from
these amusement-only machines.”
Both the evils to be remedied by and the history of H.B.
326 vary greatly from those of the Federal law. The Federal author
Hon. Robert S. Calvert, Page 22 (V-1271)
ities and most of the Federal courts have not considered free game
machines an evil to be eliminated. They do not consider free games
to be either “property” or ‘a thing of value.“. The history of Public
Law 906 shows that machines awarding free games or amusement
only were to be excluded from the use of the words ‘money or prop-
erty. m In Texas it was quits different, Free games have long been
considered “property” or “a thing of value” and free game machines
have been condemned as gaming devices and against public policy.
The history of H.B. 326 in the Texas Legislature shows that free
game machines were intended to, be included rather than excluded
from the Act. The best recorded evidence of this fact is the defeat
of an amendment on the floor of the House which had as its purpose
the exemption of certain free game machines from Section l(b) of
the Act.
Representative Beno Tufares offered the amendment to
Section l,(b) as follows:
“Amend HiB. 326, line 34, after ‘property’; and be-
fore ‘or’ by inserting the following: ‘except pinball ma-
chins:of 5 balls which allow free games up to 10. band free
games only.’ n3
This amendment was tabled by a vote of 104 to 28. It is
strong evidence that the Legislature considered the word “property”
as including free games and that there was no desire ‘to exempt any
type of free game machines. It~has been argued that it is just as
reasonable to conclude that free game machines were already ex-
cluded and the amendment was therefore unnecessary. To be sure
that our interpretation is not in conflict with what actually tran-
spired on the floor of the Houses in connection with this amendment,
we have obtained statements from the author of the amendment,
Representative T.ufares, and from Representative Adams, who. as
author of H.B.. 326, moved to table the Tufares amendment. Evi-
dence as to what was said in legislative debates by sponsors of a
bill is sometimes admissible to aid in construction of an ambigu-
ous statute.. Ex parts Peed,, 170 S.W.,749 (Tex. Grim. App. 1914).
.Since this aid is being used here only for the purpose of counter-
ing arguments based upon similar evidence {statements made in
Congressional Committees] as to the intent of Congress’ in Public
Law 906, we feel free to consider and quote the written statement
2/ ,House Journal, 52nd Legislatur;, page 1369.
Hon. Robert S. Calve& Page 23 (V-1271)
of Mr. Tufares, affirmed by Mr. Adams, as follows:
“Representative Jimmie Adams, the author of
the bill, in explaining the purpose and object of the act
and what was covered thereby, said on the floor of the
House that it would make unlawful all slot machines,
marble tables and pinball tables which paid off in mon-.
ey, free games, or any other type of property. He said
the definition of Section l(b) covered ‘free game’ ma-
chines because the Texas courts had held- any token or
free game to be property under the Texas gambling flaws.
He said that ‘five,ball’ marble machines which paid’off
in free games would’be prohibited under this bill; Con-~
sidering a’five ball marble table to be” a; game. of skiii” ~
rather than a game of chance. I offered the amendment.
reported in the Journal excluding those that offered~ up
to 10 free games. I told the House in debate that my
amendment was’ necessary to exclude, five ball ‘free
game’ marble tables’~ (up to 10 free games) from the a& ”
upder consideration.~ No one made ‘any.argument that
free game machines’werealready excluded under ‘then’ ,. .,
bill,and no one disputed the author’s statement that they.
would come under the act as worded. The author did say
that if the free game device was eliminated from the five
ball machines, they could still be possessed and operated.
Rep. Adams opposed my amendment with the argument on
the floor that permissionof 10 free games on marble ta-
bles .might lead to conversion of slot machines to .that
method of operation, and my amendment was defeated.”
Consideration of the suggested aids in construction of am-
biguous statutes merely confirms our interpretation of the plain
words of the statute.itself;~
You are therefore advised that coin-operated pinball or
marble machines which are designed, manufactured or adapted, ~’
so that when operated they may deliver to the winner, as a re-
sult of the application of an element of chance, money, free games,
or other~property are included within the provisions and penalties
:.
set out in H.B. 326.
SUMMARY
The keeping or’exhibition of coin-operated pinball
298 Hon.. Robert S. Calvert, Page 24 (V-1271)
or marble machines which pay off the winners auto-
matically in money or free games have been held by
the Texas Court of Criminal Appeals to be in violation
of Article 619,.V.P.C.. and therefore a felony offense.
Under Article.634, V.P.C.. they are declared to be
against the public policy and a public nuisance, Williams
Mfg. Co. v. Prock, 184 F.2d 307 (U.S. Ct. App., 5th Cir.
1950).
The manufacture, ownership, transportation, posses-
sion, etc., of coin-operated pinball or marble machines
which are designed, manufactured or adapted so as to
deliver to the winner, as a result of the application of an
element of chance, money, free games, or any other.
property, are prohibited by H.B. 326, 52nd Legislature,
1951 (Art. 642a. V.B.C.).
The term “property” is used in Section l(b) of H.B.
326 (Art. 642a, V.P,C.) in its broad sense so as to in-
clude free games, this construction being in accord with
~Texas court decisions ,and the weight of authority in other
jurisdictions.
Yoys very truly,
PRICE DANIEL
Assistants
NMcD/JF J/mf
~Considered and approved in conference this 5th day of
September, 1951.
Attorney General