COSSACK v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 2, California.

Roger COSSACK et al., Plaintiffs and Pespondents, v. CITY OF LOS ANGELES, a Municipal corporation, et al., Defendants and Appellants.

Civ. 40900.

Decided: October 23, 1973

Roger Arnebergh, City Atty., George J. Franscell, Asst. City Atty., W. T. Maskey, Deputy City Atty., for defendants and appellants. Warren I. Wolfe, Los Angeles, for plaintiffs and respondents.

Plaintiffs have challenged the City of Los Angeles pinball ordinance adopted by the voters in 1939,1 which, in related subdivisions 1 and 2 of subsection B. prohibits the maintenance in any place of business or public resort of the following devices:

1. Coin-operated pinball games, marble games, and grab machines;

2. Coin-operated mechanical contrivances for playing games of chance.

The trial court declared that subdivision 2 of the ordinance had been superseded in 1950 by state legislation which outlawed coin-operated mechanical devices of chance (Pen.Code, § 330b ff.), and this part of its declaration is not challenged. But the court also declared subdivision 1 of the ordinance invalid, and this part of its declaration forms the subject matter for this appeal. The trial court's determination of the invalidity of subdivision 1 relies on three arguments:

(a) The 1939 ordinance was designed to prohibit devices for playing games of chance, which at that time included pinball games, marble games, and grab machines. When regulation of games of chance was taken over by state legislation in 1950 (Pen.Code, § 330b ff.), the subject matter of the entire ordinance, including subdivision 1, became preempted by state law.

(b) The 1939 ordinance on its face does not prohibit devices for playing games predominantly of skill. In 1948 pinball and marble machines evolved from devices for playing games of chance to devices for playing games predominantly of skill, this by reason of the addition of flippers to the machines. Therefore, maintenance of these machines in public places is no longer precluded by an ordinance that merely prohibits devices for playing games of chance.

(c) Pinball machines provide wholesome amusement for their patrons, and a constitutional right exists in the exercise of wholesome amusement and in its purveyance. Should the ordinance be construed to proscribe the maintenance in public places of coin-operated mechanical devices for playing games predominantly of skill, it would violate the due process and equal protection clauses of the Fourteenth Amendment, as well as the right to the pursuit of happiness protected by article 1, section 1, of the California Constitution.

From these arguments it is apparent that the trial court's conclusion as to the invalidity of subdivision 1 of the ordinance was based on two legal assumptions: (1) the pinball ordinance on its face is directed solely against games of chance; (2) a law that proscribes the maintenance in public places of coin-operated devices for playing games of skill is unconstitutional. We briefly examine these assumptions.

Subdivision 1 of the ordinance principally prohibits the maintenance in public places of any coin-operated pinball game, marble game, or grab machine. From our reading of subdivision 1 in its setting, we conclude that the subdivision on its face proscribes the maintenance in public places of certain specified coin-operated devices for playing games predominantly of skill. Any other reading would make subdivision 1 wholly superfluous, for subdivision 2 clearly proscribes coin-operated devices for playing games of chance. Grab machines involve activity that is predominantly an activity of skill. Pinball and marble devices likewise involve activity that is predominantly an activity of skill. The 1950 legislation twice categorized pinball machines as devices for playing games predominantly of skill. (Pen.Code, §§ 330b(4), 330.5; and see People v. Mason, 261 Cal.App.2d 348, 68 Cal.Rptr. 17.) We are not persuaded that the addition of flippers to pinball machines in 1948 made any change of consequence in the status of pinball and marble games as games predominantly of skill, for tilt and body english have been factors in coin-operated pinball games since time immemorial, as has the variable velocity with which the player's marbles are propelled. Because subdivision 1 primarily operates on games predominantly of skill, it retains vitality in respect to its prohibition in public places of coin-operated pinball, marble, and grab machines. For the same reason the pinball ordinance has not been superseded in its entirety by state law, since the state has not attempted to legislate with respect to coin-operated machines for playing games predominantly of skill. (Pen.Code, §§ 330b(4), 330.5.)

On the issue of constitutionality the two propositions asserted in the trial court's opinion are that the prohibition in public places of coin-operated mechanical devices for playing games of skill unconstitutionally interferes with man's inalienable right to the pursuit of happiness and denies him the equal protection of the laws, since a rich man is free to buy a pinball machine and play it at home while a poor man is prohibited from playing one in a public place for the price of a few coins; and the maintenance in public places of coin-operated devices for playing games predominantly of skill is a lawful business whose operation may not be absolutely prohibited. Plaintiffs, in their respective capacities as patron, owner, and lessee of coin-operated devices for playing games predominantly of skill, argue in effect that only games of chance may be lawfully proscribed from public places.

We do not accept plaintiff's argument that because an activity or game involves skill its performance in public places may not be prohibited. Prize fights, wrestling contests, horse races, dog races, billiards, and pool, each involves a high degree of skill, and each may be prohibited from operating in public places if appropriate legislative authority so decrees. The underlying reason which supports the prohibition of such contests of skill is found in their ready susceptibility to use for gambling purposes and the ease with which they can be converted into vehicles for betting. If a municipality wishes to prohibit the maintenance in public places of coin-operated mechanical devices that have a high degree of susceptibility to such use, as for example, pinball machines, in our view it is free to do so.

We quote briefly from the Cal.Jur.2d comment on poolrooms:

‘Poolrooms may be regulated or prohibited by the exercise of the police power as the exigencies of the community may require. Although a public billiard hall and poolroom is not a nuisance per se nor immoral per se, it may, by reason of its environment or conditions existing in the community, constitute a menace and danger to the morals and well-being of the citizenry. . . . The business of operating a poolroom is not a useful employment, and it does not come within the rule that the police power may only be invoked to regulate, not to prohibit, the conduct of necessary and useful employments.

‘An ordinance prohibiting public billiard halls and poolrooms for hire or public use is no [sic] invalid as special or class legislation because it permits individuals to keep pool tables in their homes and hotelkeepers to maintain them for bona fide guests, since all are amenable to the law prohibiting them from engaging in the business of keeping such tables for hire or public use. . . .’ (47 Cal.Jur.2d, Theatres, Shows, Etc., § 9, p. 291; see also, 4 Am.Jur.2d, Amusements and Exhibitions, §§ 22–28. The leading case on the point is Ex parte Murphy, 8 Cal.App. 440, 444, 97 P. 199 (pool and billiards), adopted as opinion of Supreme Court under name In re Murphy, 155 Cal. 322, 100 P.2d 1134, affirmed on merits in Murphy v. California (1912), 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229.)

Similarly, the business of maintaining in public places coin-operated devices for playing games of skill is not a necessary employment and does not come within the rule that the police power may be invoked only to regulate and not to prohibit the conduct of necessary and useful employments. (Sharpe v. Johnson, 81 Cal.App.2d 939, 185 P.2d 340 (marble games); In re Lawrence, 55 Cal.App.2d 491, 497, 131 P.2d 27 (marble games).) It follows that the pinball ordinance is a valid exercise of the police power and not vulnerable to attack on constitutional grounds.

In upholding the validity of the pinball ordinance under the police power, we express no opinion on the wisdom of the ordinance or its usefulness under present conditions. If, over time, the pinball ordinance has become an obsolete local regulation that attacks evils and disorders that no longer exist, the matter is one for determination and resolution by the city council, and the remedy available to those who oppose the ordinance is to persuade the city council to submit its repeal to the electorate or persuade the legislature to preempt control over pinball machines as a matter of state law. Repeal of longstanding ordinances by the courts at the behest of special interests seems to us a clear instance of judicial intrusion into the legislative realm.

The judgment is reversed.

I dissent.

I confess I do not have the restraint and modesty of my colleagues. I see no legal, logical or moral reason to tolerate an ordinance concededly inoperative insofar as it attempts to cover games of chance and confessedly viable to the majority only insofar as it purports to completely proscribe games of skill. I do not agree that section 1 of the ordinance covers games of skill as distinguished from games of chance, but if it does, it seems to me to be so obviously discriminatory, vague and uncertain as to be unconstitutional on its face.

I am convinced from the history of the ordinance which preceded its adoption as an initiative measure, that it was passed to prohibit gambling with the intention that sections 1 and 2 of B of the ordinance be read together. If the City had truly considered the games referred to in section 1 of B as games of skill and not games of chance, regulation thereof would have been provided for as is done by section 21.36 and other sections of the Municipal Code for comparable games played with machines and games of skill not embraced in machines instead of proscribing all machine games embraced in sections 1 and 2 of B of the ordinance in question. Further, if the ordinance, as the majority hold, prohibits instead of regulates what are presumably games of skill in section 1, it is highly discriminatory because it prohibits the games enumerated in section 1 and permits many others substantially similar under regulation by license or permit, as per section 21.36 etc., and therefore it is unconstitutional. Even archery, certainly a game of skill, which may be in the course of its practice fatal in its consequences, is not prohibited, it is regulated.

I would affirm the judgment.

FOOTNOTES

1.  Ordinance No. 83.833, now codified as section 43.05.1 of the Los Angeles Municipal Code under the title, ‘Coin Games and Similar Contrivances—Possession Prohibited.’

FLEMING, Associate Justice.

COMPTON, J., concurs.