Appeal by defendant from the County Court of Will county; the
Hon. JOHN C. COWING, Judge, presiding. Heard in this court at the
May term, 1951. Judgment affirmed. Opinion filed September 14,
1951. Released for publication October 2, 1951.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
The only question presented for determination upon this record is whether a device known as "Quiz Bank," an exhibit in this case, which is owned by appellant, Telequiz Corporation, a Delaware corporation, is or is not a gambling device as defined by par. 342, chap. 38, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 37.272].
The record discloses that during the night or early morning of September 14 or 15, 1950, the Illinois State Police seized twenty devices, or machines, in a number of taverns and restaurants in Will county. Nineteen of the twenty machines were the type of device commonly called a slot machine, and the twentieth machine was the Quiz Bank machine in controversy here. The following day a petition was filed in the county court of Will county in the name of the People of the State of Illinois acting through the Attorney General of this State and the State's Attorney of Will county. This petition, after reciting that the Illinois State Police had seized these twenty slot machines and the money contained therein, charged that they were all illegal gambling devices contrary to the statute and prayed for an order finding said machines contraband property and subject to confiscation and directing their destruction.
The Telequiz Corporation, appellant herein, appeared and moved for leave to intervene and for a severance of the cause with respect to the one machine owned by it and known as the "Quiz Bank." This motion was sustained, and the Telequiz Corporation filed its answer to said petition setting up that it was the owner of said Quiz Bank machine and denying that it was a gambling device within the meaning of the statute and requested the court to enter an order finding said device and the money contained therein not contraband property and not subject to confiscation, directing that said machine be not destroyed and ordering the State Police and the State's Attorney and Sheriff of Will county to deliver said machine and money therein contained to appellant. In addition to its answer, the Telequiz Company also filed in the proceedings its petition setting forth that it was the owner of said Quiz Bank machine and praying for an order directing the return of the machine and any money contained therein to it.
The Candlelight Restaurant, where the device was found by the State Police, was not the owner of the device and is not a party to this proceeding. At the hearing in the county court, the machine itself and a photograph thereof was admitted in evidence. The photograph is in the record, and the machine itself accompanied the record to this court, and upon the oral argument of this cause in this court the machine was exhibited to the court and its operation described and commented upon by counsel.
The record, as well as an examination of the machine itself, discloses that the device is electrically operated and has a cord attached which may be inserted in any ordinary electric light socket or plug. When so connected, it is a highly illuminated, complicated, and attractive article. It is housed in a window-type cabinet with a back glass and a screen containing various markings and figures. As a player approaches the device, it appears on the back glass on the top of the machine what the odds will be on the next play of the machine, which is shown by a light illuminating one figure of a row of figures, of which two is the lowest number and twenty the highest number. The player, therefore, knows in advance before he puts a coin in the machine that if he answers the question that will appear on the screen correctly and within the time allotted he will receive payment from the machine on the basis of what odds are showing on the back glass. The machine will only take nickels and will take a minimum of one nickel and a maximum of six nickels. The maximum prize able to be won, therefore, is one hundred and twenty nickels. There is no jackpot on the machine.
After the player has inserted either one nickel or any number but not more than six nickels, a light will flash which indicates the number of coins which have been inserted, and when the player is ready he presses the button marked "Start," and thereupon a question is flashed on the screen in the aperture on the front of the machine with multiple answers numbered one to six immediately beneath the question. The player selects the answer he chooses which he thinks is correct and indicates the same by pressing one of the keys numbered one to six which are located beneath the aperture through which he looks at the screen upon which the question and alternate answers are flashed. This key corresponds to the number of the answer which he thinks is correct. If his answer is correct, the machine will so indicate by a light which flashes in back of the picture of a radiant person wearing a mortarboard and of smiling countenance, indicating a correct answer. If the answer is incorrect or if the time allotted for answering expires without a selection by the player, the light flashes behind the picture of a despondent person indicating an incorrect answer and the shutter arrangement on the screen, viewed through the aperture, opens up and indicates to the player the correct answer. The time arrangement on the machine allows a maximum time of two and one-half seconds and a minimum time of one second to answer a given question, and this mechanism is operated on a series of correct answers or compensation paid out by the machine and is so adjusted that a series of eight or ten correct answers will automatically reduce the time for the next questions until such time as an incorrect answer is recorded. If the machine is in its tightest position of one second, then within twenty plays, all incorrect, the machine would be completely opened to the two and one-half second range. Each time a question is answered correctly this electrically controlled arrangement tightens up two notches, the effect of which is to reduce the time a quarter of a second, that is, for each correct answer, the time in which to answer the following question is automatically reduced one-quarter of a second until the minimum time of one second is reached. For an incorrect answer the mechanism releases one notch, thereby increasing the time element one-eighth of a second but not beyond the maximum time of two and one-half seconds. There is no indication, externally, of this variation in time but, in order to keep the player cognizant of the shortness of time he has for his answers, there is on the front of the machine an hour glass figure with the words "Hurry, Hurry" and a light flashes behind this figure during the time that the player has in which to answer the question.
The machine contains a projector which throws a beam of light into a mirror set at an angle which, in turn, reflects the question under the screen seen from the front of the cabinet through the aperture, and the question, multiple answers and correct answer are contained in a roll of film in connection with six photocells, a sixteen millimeter single framing projector and electrical amplifier, all of which operate together so as to flash the question and multiple answers on the screen, then opens the shutter showing the correct answer, or in the case of a correct answer, the selection mechanism operates in conjunction with the payout mechanism so as to eject the proper number of nickels in accordance with the prize or odds indicator on the top of the machine. If the player puts a nickel in the slot and the odds are two, he gets two nickels back. If he puts in two nickels and answers correctly, he gets four nickels back. The maximum number of nickels he can play is six, and the maximum odds is twenty to one. The evidence disclosed that the coin meter on this particular machine indicated that there had been approximately 31,000 nickels deposited in it and that 27,000 nickels had been paid out. If the player fails to answer the question in the time allotted he gets nothing, and if his answer is wrong he gets nothing except the correct answer.
The roll of film in the machine in question is produced by Advance Film Company and contained 6,000 different questions of common interest in five major categories, sports, arts, including music, literature or philosophy, famous historical people and geography, and one general category. The player does not have a choice of category. A witness familiar with the machine testified that the questions are such that any layman or professional man could or should know the answers and that there are no questions of a highly technical nature or any trick questions. The questions, he testified, were submitted by various individuals, including school teachers, on a piece-work basis, and these persons were usually college graduates. He stated that some of the questions are "How many toes are there on a cow?" "What day is Ground Hog day?" "Which is the largest ocean?" and "What colors make purple?"
The trial court found this device to be a gambling device within the meaning of our statute, ordered the destruction thereof by the Sheriff of Will county under the supervision of the State's Attorney and directed the money contents of said machine be turned over to the County Treasurer for the use of the schools of Will county. To reverse this order, The Telequiz Corporation prosecutes this appeal.
Par. 342, chap. 38, Ill. Rev. Stat. 1949, provides:
"Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found."
Counsel for appellant argues that the elements which are required to be present in order for a machine to be a gambling device are entirely absent here; that it is not a device for the receipt of money on chance because the player knows before he starts what the amount of the prize will be if he is successful and that the only factor which enters into his winning a prize is his skill or ability in being able to answer the question which appears on the screen within the time given him to do so. Counsel insist that in the operation of the Quiz Bank the money placed in the machine is not staked, hazarded or bet upon the action of the machine and that the prize stipulated is not lost or won upon the action of the machine but the player receives the prize dependent solely upon his own knowledge, adroitness and sufficiently fast reaction which enables him to answer the submitted questions within the time permitted. In support of this contention and argument counsel cite three Illinois cases, Almy Mfg. Co. v. City of Chicago, 202 Ill. App. 240; D'Orio v. Catalano, 260 Ill. App. 626; and Question Game Co., Inc. v. Ploner, 273 Ill. App. 187.
Counsel for appellant state that the Illinois courts have not previously determined whether this particular type of machine is or is not a gambling device but that the Supreme Court of Mississippi held in Rouse v. Sisson, 190 Miss. 276, 199 So. 777, 132 A.L.R. 998, that a device which was practically an exact counterpart of the Quiz Bank was not a gambling device, and counsel, in perfect fairness, calls our attention to Hernandez v. Graves, 148 Fla. 247, 4 So.2d 113, where the Supreme Court of Florida held a device of the same type as the Quiz Bank machine to be a gambling device.
Almy Mfg. Co. v. City of Chicago, supra, was a proceeding in equity brought by the manufacturer and seller of a device labeled "Automatic Cashier and Discount Machine" seeking to enjoin the municipal authorities of Chicago from seizing or preventing the use and operation of its machines. The machine had been seized by the police on the theory that it was a gambling device. The character of the machine and its operation is fully set forth in the opinion, and in holding that it was a gambling device the court said: (p. 244-5) "The purpose of the machine, its quality and character, the possibilities of its operation and the manner in which it is susceptible of use are controlling factors in determining whether it is a gambling device in fact or not. While it is true that the player will receive five cents in trade for the nickel which he places in the slot of the machine, yet that is not what induces the player to make the ...