Appeal from the Superior Court of Cook County; the Hon. JOHN
J. LUPE, Judge, presiding. Order affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 11, 1964.
This is an appeal from an order of the superior court of Cook County permanently enjoining the defendant, Richard B. Ogilvie, Sheriff of Cook County, his deputies, agents and subordinates from seizing, taking, holding, confiscating or destroying any coin-in-the-slot mechanical devices commonly known as pinball machines, especially those belonging to the plaintiffs, and also from interfering with the plaintiffs' operation or use of such devices in the absence of evidence to prove that such operation or use is contrary to, or in violation of, Ill Rev Stats 1963, c 38, § 28-2. The order further recited that the defendant was to return to the plaintiffs the machines which had been seized by him, together with the money which was located in each and every machine, in a locked box, inside the front of the machine.
It is the defendant's contention that certain features found in the machines at issue combined with the possibility of winning as many as six hundred free games on one play of the machines stamp the machines as per se gambling devices within the proscription of the above statute.
Prior to 1963, the above statute read as follows:
Sec 28-2. (a) A "gambling device" is any clock, tape machine, slot machine or other machines or device for the reception of money or other thing of value on chance or skill or upon the action of which money or other thing of value is staked, hazarded, bet, won or lost; or any mechanism, furniture, fixture, equipment or other device designed primarily for use in a gambling place. A "gambling device" does not include:
(1) A coin-in-the-slot operated mechanical device played for amusement which rewards the player with the right to replay such mechanical device, which device is so constructed or devised as to make such result of the operation thereof depend in part upon the skill of the player and which returns to the player thereof no coins, tokens, or merchandise. (Ill Rev Stats, 1961, c 38, § 28-2.)
In 1963, section 28-2 was amended by substituting the words ". . . no money, property or right to receive money or property," for ". . . no coins, tokens, or merchandise." Defendant contends that this change in the exception to the statutory definition of a "gambling device" removed the machines at issue from the protection of the exception because they are constructed in such a manner that they return to the player the "right to receive money or property."
Defendant further contends that while the machines at issue outwardly manifest "pseudo-amusement" qualities, certain features of the machines conclusively point to their use as gambling devices. These features as disclosed by the evidence are:
A. Multiple Coin Inserter This is a device on the front of the machines into which a player inserts his dime in order to commence the game. Additional dimes may be inserted before the first ball is played. The purpose of inserting additional dimes is to increase the number of games to be won when a winning combination is hit and/or to gain various features which increase the chance of winning. Additional dimes may also be inserted after the last ball has been played in order to get additional balls. Each time an additional dime is inserted, a chance selector is activated which either may or may not give the desired results. The operation of the chance selector is in turn affected by the "reflex or memory unit" and the "manual adjustment plugs."
B. Reflex or Memory Unit and Manual Adjustment Plugs The "reflex unit" provides a memory of the past history of the machine. It is composed of a complicated arrangement of gears, coils and relays usually placed inside the back door of the machines, which automatically increase or reduce the chances of getting the desired results from inserting additional dimes in the "Multiple Coin Inserter." As games are won, the "reflex unit" tightens up by cutting down on the number of parallel circuits supplying voltage through the chance selector. As games are played without replays being won, the number of parallel circuits are increased. The "manual adjustment plugs" control the degree of game difficulty by controlling in a semi-permanent way the number of parallel circuits supplying voltage through the "reflex unit."
C. Knock-off-button or Toggle Switch These mechanisms are located on the underside of the machine. Pushing the button or throwing the switch has the same effect as disconnecting and reconnecting the line cord. The free games shown on the visible indicator are released while the games so released are recorded on a meter inside the machine.
D. Counter System There are two meters or counters inside the machines located in the front near the coin boxes. One, called the total play counter, keeps a tally of the number of coins inserted. The second counter or meter tallies all of the unused or released free even games which were removed by use of the knock-off-button or toggle switch from the externally visible free replay indicator on the front of the machine.
Testimony was elicited from plaintiffs' witnesses showing that the machines were used only for amusement purposes. This testimony stands uncontradicted. No evidence was presented by the defendant to the effect that such machines were ever used for gambling purposes or that ...