EN BANC
[G.R. No. L-17252 and L-17276. May 31, 1961. ]
GORGONIO MIRANDA, ET AL., Plaintiffs-Appellees, v. CITY OF MANILA, Defendant-Appellant.
Quijano & Azores and Alberto R. de Joya for Plaintiffs-Appellees.
The City Fiscal, for Defendant-Appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; GENERAL WELFARE CLAUSE; ORDINANCE NO. 3941 AFFECTING PINBALL MACHINES HELD VALID AND CONSTITUTIONAL. — Pinball machines in the different forms in which they are operated are gambling devices in that the winning therein depends mostly, if not wholly, upon chance or hazard. Consequently, the municipal board of the City of Manila acted rightly in enacting Ordinance No. 3941 providing therein that no license for their installation or operation shall be granted under any circumstances. Hence, said ordinance is valid and constitutional it being a measure that comes under the general welfare clause of the Charter of the City of Manila.
2. ID.; PINBALL MACHINES ARE GAMBLING DEVICES; TEST TO DETERMINE WHETHER A MACHINE IS A GAMBLING DEVICE. — Whether the pinball machine is of a non-flipper or one-ball type, or a flipper or five-ball type, the same is deemed to be a gambling device for the reason that the element of skill involved is nil. Moreover, its operation tends to encourage the gambling instinct of the player which eventually leads to idleness, economic waste, dislike for work, and criminality, especially among children of school age, who are attracted by the lure and novelty of the machine. And, as it has been aptly observed, the proper test to determine if a machine is a gambling device is whether it encourages the gambling instinct (Dussault Co., etc. v. Kilburn, 135 AIR 99).
3. ID.; SLOT MACHINE NOT PER SE A GAMBLING DEVICE. — A slot machine is not per se a gambling device, since it may be used and played upon for innocent purposes, and courts cannot, therefore, take judicial notice that every slot machine is a gambling device because the use to which it is put must determine its character (Heartley v. State, 178 S.W. 2nd L. 178 Tenn. 345).
2. ID.; PINBALL MACHINES ARE GAMBLING DEVICES; TEST TO DETERMINE WHETHER A MACHINE IS A GAMBLING DEVICE. — Whether the pinball machine is of a non-flipper or one-ball type, or a flipper or five-ball type, the same is deemed to be a gambling device for the reason that the element of skill involved is nil. Moreover, its operation tends to encourage the gambling instinct of the player which eventually leads to idleness, economic waste, dislike for work, and criminality, especially among children of school age, who are attracted by the lure and novelty of the machine. And, as it has been aptly observed, the proper test to determine if a machine is a gambling device is whether it encourages the gambling instinct (Dussault Co., etc. v. Kilburn, 135 AIR 99).
3. ID.; SLOT MACHINE NOT PER SE A GAMBLING DEVICE. — A slot machine is not per se a gambling device, since it may be used and played upon for innocent purposes, and courts cannot, therefore, take judicial notice that every slot machine is a gambling device because the use to which it is put must determine its character (Heartley v. State, 178 S.W. 2nd L. 178 Tenn. 345).
D E C I S I O N
BAUTISTA ANGELO, J.:
Plaintiffs, in separate complaints filed before the Court of First Instance of Manila, seek to invalidate Ordinance No. 3628 of the City of Manila which prohibits "the operation of pinball machines within a radius of 200 meters from any church, hospital, institution of learning, public market, plaza and government building", and fixes "an annual fee of P300.00 for the installations and use of said machines", and Ordinance No. 3941 which provides "that no license for the operation of machines and apparatus commonly known as ’pinball’ machines shall be granted under any circumstances", and to enjoin and restrain the defendant City of Manila, its officials, employees, agents, and representatives from enforcing said ordinances or any of their provisions in connection with the operation of plaintiff’s pinball business.
The principal issues involved in these cases being the same, the parties agreed on a joint hearing, and to abbreviate the proceedings, the parties submitted a stipulation of facts, without prejudice of presenting additional evidence.
On February 12, 1959, after a joint hearing, the court rendered decision declaring the two ordinances above mentioned null and void and, consequently, it permanently enjoined the defendants from enforcing them, or any of their provisions in connection with plaintiff’s pinball business.
Defendants appealed in due time to the Court of Appeals. However, by resolution of July 25, 1960, said Court certified the cases to us on the ground that they involve the validity of Ordinance No. 3941 of the City of Manila.
The question for determination in these cases are: (1) whether or not Ordinances Nos. 3628 and 3941 are valid with respect to the provisions affecting the operation of pinball machines; and (2) whether or not the pinball machines owned by appellees are operated for gambling purposes.
The issues raised are not new. The same have been recently submitted to us for determination and we then held that pinball machines in the different forms in which they are operated are gambling devices in that the winning therein depends mostly, if not wholly, upon chance or hazard. Consequently, we held that the municipal board of the City of Manila acted rightly in enacting Ordinance No. 3941 providing therein that no license for their installation or operation shall be granted under any circumstances. Hence, we declared that the ordinance is valid and constitutional it being a measure that comes under the general welfare clause of the Charter of the City of Manila.
Thus, in Uy Ha v. The City Mayor, Et Al., G.R. Nos. L-14149 and L-14069, promulgated May 30, 1960, wherein the issues posed were: (1) whether pinball machines are gambling devices the operation of which is prohibited by law, and (2) whether ordinance No. 3941 is valid and constitutional, this Court said:jgc:chanrobles.com.ph
"With regard to the first issue, we quote with approval the following observation of the trial court:chanrob1es virtual 1aw library
‘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. Cesar 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 chance 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. v. Wiley, 3 N.W. 2d 620; State v. Livingston, 196 a. 407; Hunter v. Mayor & council of Teneck Tp. 24 A. 2d 553, 128 N.J. Law 164; people v. Swartz, 25 N.E. 2d 386, 282 N.Y. 596, and State v. Coats, 74 P. 2d 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 for 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. Gree v. One 5
The principal issues involved in these cases being the same, the parties agreed on a joint hearing, and to abbreviate the proceedings, the parties submitted a stipulation of facts, without prejudice of presenting additional evidence.
On February 12, 1959, after a joint hearing, the court rendered decision declaring the two ordinances above mentioned null and void and, consequently, it permanently enjoined the defendants from enforcing them, or any of their provisions in connection with plaintiff’s pinball business.
Defendants appealed in due time to the Court of Appeals. However, by resolution of July 25, 1960, said Court certified the cases to us on the ground that they involve the validity of Ordinance No. 3941 of the City of Manila.
The question for determination in these cases are: (1) whether or not Ordinances Nos. 3628 and 3941 are valid with respect to the provisions affecting the operation of pinball machines; and (2) whether or not the pinball machines owned by appellees are operated for gambling purposes.
The issues raised are not new. The same have been recently submitted to us for determination and we then held that pinball machines in the different forms in which they are operated are gambling devices in that the winning therein depends mostly, if not wholly, upon chance or hazard. Consequently, we held that the municipal board of the City of Manila acted rightly in enacting Ordinance No. 3941 providing therein that no license for their installation or operation shall be granted under any circumstances. Hence, we declared that the ordinance is valid and constitutional it being a measure that comes under the general welfare clause of the Charter of the City of Manila.
Thus, in Uy Ha v. The City Mayor, Et Al., G.R. Nos. L-14149 and L-14069, promulgated May 30, 1960, wherein the issues posed were: (1) whether pinball machines are gambling devices the operation of which is prohibited by law, and (2) whether ordinance No. 3941 is valid and constitutional, this Court said:jgc:chanrobles.com.ph
"With regard to the first issue, we quote with approval the following observation of the trial court:chanrob1es virtual 1aw library
‘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. Cesar 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 chance 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. v. Wiley, 3 N.W. 2d 620; State v. Livingston, 196 a. 407; Hunter v. Mayor & council of Teneck Tp. 24 A. 2d 553, 128 N.J. Law 164; people v. Swartz, 25 N.E. 2d 386, 282 N.Y. 596, and State v. Coats, 74 P. 2d 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 for 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. Gree v. One 5
