FIRST DIVISION
[G.R. Nos. L-14069 & L-14149. May 30, 1960. ]
UY HA, petitioner and appellant, v. THE CITY MAYOR OF MANILA, ET AL., Respondent. THE CITY OF MANILA, intervenor and Appellant.
Ricardo D. Conjares, Cecilio B. Magadia, Jr. and Remigio T. Octavio for petitioner and Appellant.
City Fiscal Hermógenes Concepción, Jr. for intervenor and appellant.
SYLLABUS
1. MUNICIPAL CORPORATIONS; PINBALL MACHINES GAMBLING DEVICES; PENALIZED UNDER ARTICLE 195 OF THE REVISED PENAL CODE. — "Pinball machines", in the different forms in which they are operated, are gambling devices in that the winning therein depends wholly upon chance or hazard. They are inimical to the general welfare because they tend to corrupt the people, especially youngsters and schoolchildren, robbing them of their money and of their savings earned by the sweat of their brow. Their operation should therefore be suppressed not only because they are prohibited by law but because they are injuries to public welfare. Being gambling devices or contrivances the operation of which depends upon chance, they are not only prohibited but are penalized by Article 195 of the Revised Penal Code.
2. ID.; ID.; MANILA CITY ORDINANCE NO. 3941 VALID; SUPPRESSION OF PINBALL MACHINES PROPER UNDER THE GENERAL WELFARE CLAUSE. — "Pinball machines", being especially designed for gambling and as such prohibited by law, had been properly suppressed when the Municipal Board of the City of Manila enacted Ordinance No. 3941 providing therein that no license for their installation or operation shall be granted under any circumstances. In this sense said ordinance cannot be held to be invalid or unconstitutional; on the contrary, it properly comes under the general welfare clause of the Charter of the City of Manila.
3. ID.; ID.; POWER OF CITY OF MANILA TO REGULATE AND FIX LICENSE FEES FOR OPERATION OF SLOT MACHINE; PINBALL MACHINE; PINBALL MACHINE NOT INCLUDED. — While it is true that under Section 18 (1) of Act 409, known as the Revised Charter of the City of Manila, the municipal board is given the power to regulate and fix the amount of license fees for the operation of certain devices, among them, slot machines, this provision should be understood as referring merely to those types of slot machines that are not per se gambling devices, for what is prohibited by law cannot be the subject of regulation. In this sense, Ordinance No. 3941 is valid and proper, for it only seeks to regulate, as it does, the installation and operation of any mechanical contrivance not otherwise prohibited by law. But "pinball machines" are not included in this proviso.
4. ID.; ID.; MUNICIPAL ORDINANCE NO. 3628 OF MANILA ULTRA VIRES. — Ordinance No. 3628 of the City of Manila, which seeks to regulate and license the operation of "pinball machines" within the city upon payment of an annual license of P800.00 for each "pinball machine", is ultra vires, being an exercise of power not granted by law to the City of Manila since those devices are prohibited by law and as such are not subject to regulation.
2. ID.; ID.; MANILA CITY ORDINANCE NO. 3941 VALID; SUPPRESSION OF PINBALL MACHINES PROPER UNDER THE GENERAL WELFARE CLAUSE. — "Pinball machines", being especially designed for gambling and as such prohibited by law, had been properly suppressed when the Municipal Board of the City of Manila enacted Ordinance No. 3941 providing therein that no license for their installation or operation shall be granted under any circumstances. In this sense said ordinance cannot be held to be invalid or unconstitutional; on the contrary, it properly comes under the general welfare clause of the Charter of the City of Manila.
3. ID.; ID.; POWER OF CITY OF MANILA TO REGULATE AND FIX LICENSE FEES FOR OPERATION OF SLOT MACHINE; PINBALL MACHINE; PINBALL MACHINE NOT INCLUDED. — While it is true that under Section 18 (1) of Act 409, known as the Revised Charter of the City of Manila, the municipal board is given the power to regulate and fix the amount of license fees for the operation of certain devices, among them, slot machines, this provision should be understood as referring merely to those types of slot machines that are not per se gambling devices, for what is prohibited by law cannot be the subject of regulation. In this sense, Ordinance No. 3941 is valid and proper, for it only seeks to regulate, as it does, the installation and operation of any mechanical contrivance not otherwise prohibited by law. But "pinball machines" are not included in this proviso.
4. ID.; ID.; MUNICIPAL ORDINANCE NO. 3628 OF MANILA ULTRA VIRES. — Ordinance No. 3628 of the City of Manila, which seeks to regulate and license the operation of "pinball machines" within the city upon payment of an annual license of P800.00 for each "pinball machine", is ultra vires, being an exercise of power not granted by law to the City of Manila since those devices are prohibited by law and as such are not subject to regulation.
D E C I S I O N
BAUTISTA ANGELO, J.:
On December 24, 1957, the Municipal Board of the City of Manila enacted Ordinance No. 3941, which was approved by the mayor on January 3, 1958, providing, among others, that "no license for the installation and/or operation of machines and apparatus commonly known as ’Pinball’ machines shall be granted under any circumstances." Thereafter, the mayor ordered the confiscation of all "pinball machines" which are being used in violation of said ordinance within the city. Petitioner, who was engaged in the business of operating "pinball machines" within the city prior to the approval of said ordinance, applied for license for the current year, but was refused, whereupon he filed the present petition before the Court of First Instance of Manila seeking to enjoin the enforcement of said ordinance on the ground that said "pinball machines" are devised for amusement and not for gambling and so said ordinance is invalid and unconstitutional.
On February 20, 1958, respondents filed their answer stating that the "pinball machines" operated by petitioner are specially designed for gambling and as such their operation is prohibited by law; that said ordinance is not discriminatory; that "pinball machines" being designed for gambling, the operation of which chiefly depending on chance, are a constant temptation to young people in whom gambling may easily become deep-rooted; and that "pinball machines" are deleterious to the moral, economic and physical well-being of the people who indulge in them, especially youngsters and schoolchildren, so that their operation may be prohibited under Section 18 (kk) of Republic Act No. 409.
The City of Manila, which has a legal interest in the matter in litigation, was allowed to intervene, and in its complaint it alleged that petitioner had been engaged in the business of operating eight "pinball machines" in the City of Manila from the first quarter of 1956 up to the present without first paying the annual license fee of P300.00 for each machine in accordance with the provisions of Section 774 of the Revised Ordinance, as amended by Ordinance No. 3628, thereby becoming indebted to the intervenor in the total sum of P4,620.00, including the surcharge of 10% for non-payment. Petitioner answered this complaint stating that he had already paid the corresponding fees for his eight "pinball machines" for 1956 and the first half of 1957 and that tender of payment for the second half of 1957 was refused by the intervenor. He also claims that Ordinance No. 3628 is null and void as it is not merely regulatory but a revenue measure which is beyond the power of the City of Manila to enact.
After trial, the court rendered decision holding that "pinball machines" are gambling devices and as such are proper subjects of the general welfare clause of the city and that pinball machine joints cannot be considered places of amusements within the purview of Republic Act 1224. However, it denied the claim of intervenor for unpaid license fees on the ground that "it is doubtful whether the increase of annual license fee from P50.00 to P300.00 can be justified under its police power, or under Section 18(1) of its Charter, neither of which authorizes the imposition of a tax measure."cralaw virtua1aw library
Both petitioner and intervenor have appealed.
The issues posed by petitioner are: (1) Are "pinball machines" gambling devices the operation of which is prohibited by law?; and (2) Is Ordinance No. 3941 of the City of Manila valid and constitutional?
With regard to the first issue, we quote with approval the following observation of the trial court:jgc:chanrobles.com.ph
"Pinball machines generally consists of a playing surface, containing obstacles and apertures, upon which balls or marbles, obtained by inserting the required coin in the slot, are propelled by various methods but uniformly with the object of dropping such balls or marbles into particular apertures designated as scoring or ’pay- off’ holes (39 CJS 66). Dets. Cezar Zaballa and Numeriano Cortez upon order of the Chief of the Detective Bureau conducted a three-day observation on the operation of the one-ball pinball machine and found that the chance of winning of a skilled player is 4.5% while that of a non-skilled player is only 3.34% (Exhibit 6, pp. 1-4). They further observed that the persons patronizing these joints are school children carrying books and idle adults.
"The foregoing observation made with respect to the non-flipper or one-ball type which are invariably played for money is not radically different from the conditions obtaining in the flipper or 5- ball type which were the object of ocular inspection. During the ocular inspection, the Fiscal spent P0.60 without winning a replay, while the presiding Judge spent P1.00 with only one replay. In other words, for three games, P1.00 was lost. The result depends mainly on chance or luck. The criterion is based not on the skilled player but on the general public patronizing same. In the flipper type, the prize is a chance at replay and the chances are enhanced in proportion to the amount paid per game. Then, too, the replays one wins may be easily converted into cash by the operator.
"Pinball machines have generally been held gambling devices (Howle v. City of Birmingham, 159 So. 206, 229 Ala. 666; Stead v. State, 72 S.W. 2nd 542, 189 Ark. 389; State v. Wiley, 3 N.W. 2nd 620; State v. Livingston, 196 A. 407; Hunter v. Mayor & Council of Teneck Tp., 24 A. 2nd 553, 128 N.J. Law 164; People v. Swartz, 25 N.E. 2nd 386, 282 N.Y. 596, and State v. Coats, 74 P. 2nd 1102, 158 Or. 122.) In the case of State ex rel. Dussault, Co. Atty., et al v. Kilburn, 135 ALR 99, it has been held that "Under statute penalizing as a misdemeanor operation of any game of chance played with any device of money, checks, credit or any representatives of value, a pin-ball machine in the operation of which a certain amount of skill could be developed, but which as played by patronizing public was purely a game of chance, and which paid off in trade checks if metal ball shot from spring or mechanical device fell into proper hole designated by lighted number on back of machine which changed each time machine was played, was a "gambling device" and building in which it was used was properly enjoined as a "nuisance." And in State ex rel. Green v. One 5
On February 20, 1958, respondents filed their answer stating that the "pinball machines" operated by petitioner are specially designed for gambling and as such their operation is prohibited by law; that said ordinance is not discriminatory; that "pinball machines" being designed for gambling, the operation of which chiefly depending on chance, are a constant temptation to young people in whom gambling may easily become deep-rooted; and that "pinball machines" are deleterious to the moral, economic and physical well-being of the people who indulge in them, especially youngsters and schoolchildren, so that their operation may be prohibited under Section 18 (kk) of Republic Act No. 409.
The City of Manila, which has a legal interest in the matter in litigation, was allowed to intervene, and in its complaint it alleged that petitioner had been engaged in the business of operating eight "pinball machines" in the City of Manila from the first quarter of 1956 up to the present without first paying the annual license fee of P300.00 for each machine in accordance with the provisions of Section 774 of the Revised Ordinance, as amended by Ordinance No. 3628, thereby becoming indebted to the intervenor in the total sum of P4,620.00, including the surcharge of 10% for non-payment. Petitioner answered this complaint stating that he had already paid the corresponding fees for his eight "pinball machines" for 1956 and the first half of 1957 and that tender of payment for the second half of 1957 was refused by the intervenor. He also claims that Ordinance No. 3628 is null and void as it is not merely regulatory but a revenue measure which is beyond the power of the City of Manila to enact.
After trial, the court rendered decision holding that "pinball machines" are gambling devices and as such are proper subjects of the general welfare clause of the city and that pinball machine joints cannot be considered places of amusements within the purview of Republic Act 1224. However, it denied the claim of intervenor for unpaid license fees on the ground that "it is doubtful whether the increase of annual license fee from P50.00 to P300.00 can be justified under its police power, or under Section 18(1) of its Charter, neither of which authorizes the imposition of a tax measure."cralaw virtua1aw library
Both petitioner and intervenor have appealed.
The issues posed by petitioner are: (1) Are "pinball machines" gambling devices the operation of which is prohibited by law?; and (2) Is Ordinance No. 3941 of the City of Manila valid and constitutional?
With regard to the first issue, we quote with approval the following observation of the trial court:jgc:chanrobles.com.ph
"Pinball machines generally consists of a playing surface, containing obstacles and apertures, upon which balls or marbles, obtained by inserting the required coin in the slot, are propelled by various methods but uniformly with the object of dropping such balls or marbles into particular apertures designated as scoring or ’pay- off’ holes (39 CJS 66). Dets. Cezar Zaballa and Numeriano Cortez upon order of the Chief of the Detective Bureau conducted a three-day observation on the operation of the one-ball pinball machine and found that the chance of winning of a skilled player is 4.5% while that of a non-skilled player is only 3.34% (Exhibit 6, pp. 1-4). They further observed that the persons patronizing these joints are school children carrying books and idle adults.
"The foregoing observation made with respect to the non-flipper or one-ball type which are invariably played for money is not radically different from the conditions obtaining in the flipper or 5- ball type which were the object of ocular inspection. During the ocular inspection, the Fiscal spent P0.60 without winning a replay, while the presiding Judge spent P1.00 with only one replay. In other words, for three games, P1.00 was lost. The result depends mainly on chance or luck. The criterion is based not on the skilled player but on the general public patronizing same. In the flipper type, the prize is a chance at replay and the chances are enhanced in proportion to the amount paid per game. Then, too, the replays one wins may be easily converted into cash by the operator.
"Pinball machines have generally been held gambling devices (Howle v. City of Birmingham, 159 So. 206, 229 Ala. 666; Stead v. State, 72 S.W. 2nd 542, 189 Ark. 389; State v. Wiley, 3 N.W. 2nd 620; State v. Livingston, 196 A. 407; Hunter v. Mayor & Council of Teneck Tp., 24 A. 2nd 553, 128 N.J. Law 164; People v. Swartz, 25 N.E. 2nd 386, 282 N.Y. 596, and State v. Coats, 74 P. 2nd 1102, 158 Or. 122.) In the case of State ex rel. Dussault, Co. Atty., et al v. Kilburn, 135 ALR 99, it has been held that "Under statute penalizing as a misdemeanor operation of any game of chance played with any device of money, checks, credit or any representatives of value, a pin-ball machine in the operation of which a certain amount of skill could be developed, but which as played by patronizing public was purely a game of chance, and which paid off in trade checks if metal ball shot from spring or mechanical device fell into proper hole designated by lighted number on back of machine which changed each time machine was played, was a "gambling device" and building in which it was used was properly enjoined as a "nuisance." And in State ex rel. Green v. One 5
