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O''Brien v. Scott

Decided: June 4, 1952.

WILLIAM C. O'BRIEN, JR., AND THOMAS O'CONNELL, T/A SKILO, PLAINTIFFS,
v.
LEWIS P. SCOTT, COUNTY PROSECUTOR OF THE COUNTY OF ATLANTIC, AND EARL BUTCHER, ACTING CHIEF OF POLICE OF THE CITY OF ATLANTIC CITY, DEFENDANTS



Haneman, J.s.c.

Haneman

Plaintiffs herein are the lessees of certain premises located at 192 St. James Place, Atlantic City, New Jersey, in which they are conducting the business of operating an alleged amusement skill game known as "Skilo." The complaint alleges that the defendants, who are various law enforcement officers of the City of Atlantic City and County of Atlantic, have arbitrarily interfered with the conduct of their business without due process of law. The plaintiffs seek to enjoin the defendants from so arbitrarily interfering with their business.

On August 8, 1951, upon application made to the Honorable C. Thomas Schettino, J.S.C., an interlocutory injunction was granted restraining the defendants from interfering with the operation of the plaintiffs' business, except

pursuant to proceedings in accordance with due process of law. Said restraint was based on a finding of fact by him that the device here in question "was one of skill and therefore legal."

Counsel have stipulated in the pretrial order that the sole question to be resolved by this court is whether said game is one of chance or one of skill. The question of the illegal or arbitrary nature of the acts of the defendants is therefore not one for determination in this cause. It is admitted by the defendants that an injunction will properly lie where the character of a game, as to legality or illegality, is in substantial dispute, and where valuable property rights are threatened with irreparable injury or destruction from the seizure and interference by police authorities acting without due process of law. S. & R. Amusement Corp. v. Quinn , 136 N.J. Eq. 420 (Ch. 1944).

In order to sustain the propriety of their conduct, the defendants seek a declaration that the device or game here involved is a gambling device interdicted by the provisions of N.J.S. 2 A:112-3. So much thereof as is here pertinent is as follows:

"Any person who, habitually or otherwise, * * *, or keeps a place to which persons may resort for engaging in any such practices, * * *, or for gambling in any form, is guilty of a misdemeanor, and shall be punished by a fine of not less than $1000 nor more than $5000, or by imprisonment in the State prison for not less than 1 year nor more than 5 years, or both."

That the above statute proscribes the keeping of a place "for gambling in any form" is clear, for it follows that if the playing of the machines or devices owned and operated by plaintiffs in the above referred to premises constitutes gambling, plaintiffs are guilty of violating the cited statute. State v. Ford , 86 N.J.L. 73 (Sup. Ct. 1914); Thrillo, Inc., v. Scott , 15 N.J. Super. 124 (Cty. Ct. 1951).

Thus our inquiry resolves itself into two issues: (1) what constitutes a gambling device or game, and (2) is the game here involved a gambling device or machine?

First, our inquiry is directed to the issue of what constitutes a gambling device or game.

In State v. Murzda , 116 N.J.L. 219 (E. & A. 1935), it was stated as follows:

"The term 'gambling device,' has no settled and definite meaning; it was not defined by the common law. State v. Mann , 2 Or. 238. Unless specifically defined, it takes its meaning from the surrounding words and expressions, and, when given the restricted significance of implements, instruments, or apparatus used in the unlawful play or game, that is ordinarily the intention found in the context. State v. Mann, supra; State v. Shaw , 39 Minn. 153, 39 N.W. 305; In re Lee Tong, D.C. , 18 Fed. Rep. 253; State v. Mann , 13 Tex. 61."

In Washington Coin Machine Ass'n. v. Callahan, &c. , 79 U.S. App. D.C. 41, 142 F.2d 97, 98 (C.A.D.C. 1944), the court said as follows:

"To gamble, as is well known, is to risk one's money or other property upon an event, chance or contingency in the hope of the realization of gain, and the test as to whether a particular machine combination constitutes a gambling device is, as the Seventh Circuit Court of Appeals said, whether it is adapted, devised and designed for the purpose of playing any game of chance for money or property. The elements, chance and money or property, are therefore fundamental ingredients. * * *"

See also, Chicago Patent Corp. v. Genco, Inc. , 124 F.2d 725 (C.C.A. 7 th 1941).

The courts of New Jersey have never established a specific test for a gambling game. In Hunter v. Teaneck Township , 128 N.J.L. 164 (Sup. Ct. 1942), the court said as follows:

"Various factors have been held to be determinative as to what constitutes a game of chance. There is a line of cases, of which People v. Lavin (1904), 179 N.Y. 164; 71 N.E. Rep. 753; 66 L.R.A. 601, and Commonwealth v. Plissner (1936), 295 Mass. 457; 4 N.E. Rep. (2 d) 241, are typical, holding that the test of the character of the game is not whether it contains the element of chance or the element of skill, but which is the dominant element that determines the result of the game. There is another line of cases, of which State ex rel. Dussault v. Kilburn (1941), 111 Mont. 400; 109 Pac. Rep. (2 d) 1113; 135 A.L.R. 99, is typical, holding that if the game is designed to and does appeal to, and induces, lures, and encourages, the gambling instinct, it constitutes a game of chance. And

there is a further line of cases, of which Alexander v. Martin (1939), 192 S.C. 176; 6 S.E. Rep. (2 d) 20, and Alexander v. Hunnicutt , (1941), 196 S.C. 364; 13 S.E. Rep. (2 d) 630, are typical, holding that since amusement has value, and added amusement has additional value, and since that additional amusement is obtained by chance without the payment of additional compensation therefor, ...


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