September 5. 1951

Hon. Robert S. Calvert Comptroller ofPublic Accounts Austin, Texas Opinion No. V-1271

Re: Applicability of House gill No. 326, making possession of certain gaming devices a

Dear Sir: felony, to “pinball” or “marble” machines which pay off the winner in free games rather than cash or physical property.

Your recent request for an opinion asks.,in general, whether House Bill No. 326, Acts 52nd Leg., 1951, ch. 178, p. 299 (codified as Article 642a. V.P.C.), makes it unlawful to *own, keep or possess” devices commonly known as “pinball” or “marble” machines which automatically deliver free games to the winner instead of cash or physical property. You specifically inquire
as to whether these “pinball” or “marble” machines are prohibited

“slot machines,” as that term~is defined in Section 1ofthe Act.

The machines about which you inquire are described in your letter as machines “whose users propel balls with aplunger” andwhich are designed or adjusted so that the mechanism “will automatically permit a free play when a certain score isreached” v&&out the deposit of additional coins therein. You further characterize these devices with the following statement:

U‘Pinball’ or ‘marble’ machines do not contain a drum or reel with insignia thereon. Rather, they operate primarily through a series of electrical crossconnections, which are set in motion whe.nthe ball touches certain trips and switches, and which reflect themselves in lights or computers that reveal the player’s score.”

House Bill No. 326 provides, inpart, as follows:.

Hon. Robert S. Calvert, Page 2 (V-1271)

“Section 1. The term ‘slot machine’ as used in this Act, means: *(a) Any so-called ‘slot machine’ or any other machine or mechanical device, by whatsoever
name known, an essential part ofwhich is a drum or reel with insignia thereon, and
*(l) which when operated may deliver, as the result of the application of an element of chance, any money or property or:other valuable thing, or

“(2) by the operation ofwhich a person may be entitled to receive, as the result ofthe application of an element of chance, any money or property or other valuable thing; or

“(b) Any machine or mechanical device designed and manufactured or adapted to operate by means ofthe insertion of a coin, token, or other object and designed, manufactured or adapted so that when operated it may deliver, as the result of an application of an element of chance, any money or property; or

‘(c) Any subassembly or essential part intended to be used in connection with such machine or mechanical device.

*Sec. 2. Whoever shall manufacture, own. store, keep, sell, rent, lease, let on shares, lend or give away, transport or possess a slot machine, as defined inSection 1, shall be guilty of afelony and upon conviction thereof shall be confined in the State penitentiary not less than two (2) years nor more than four (4) years.”

We agree with your own interpretation ofyour first question -- that Section l(a) is not applicable to marble machines which have no *drum or reel,” and that it is to Section l(b) that we~must look to determine whether marble tables and pinball machines are included within the Act.Hon. Robert S. Calve& Page 3 (V-1271) 

# 277

Itis obvious that coin-operated marble and pinball machines which automatically deliver, as the result of an application of an element of chance, money or physical property,
are within the definition ofthe term “slot machine” inSection l(b). Your primary concerri is whether such, machines are included within the statutory definition ifthey pay off the winner in free games rather than cash or physical property. This question is phrased by you as follows:

“SECOND QUESTION: Are ‘pinball’ or ‘marble’ machines which do not deliver money or physical property to a’pfayer, but which can be adjusted to award free games, ‘slot machines’ within the meaning ofthe above-quoted definition, said definition being the one which is contained in Subdivision (b) of Section 1of House Bill 326?n
.We assume that you are interested only in those machine~swhich are constructed or adapted to award free games rather than t.lz which can be so constructed or adapted. There is adifference. Hightower v. State, 156 S.W.Zd’ 327 (Tex. Civ. App. 1941). The words ofthe statute cover only that type ofmachine which is “designed and manufactured or adapted so that when operated it may deliver

. . . any money or property.“l Our
answer to your question will refer only to those machines which
are designed’ and manufactured or adapted so as to automatically release or deliver free games to the winner.

At the outset, the treatment ofthese so-called “free game” machines inthe law andpublic policy ofthis State should be reviewed in order to keep in mind the nature ofthe subject matter being dealt with by the 52nd Legislature. Marble and pinball machines which pay the winner in free games instead of cash have been condemned by previous statutes and court decisions of this **State** the same as gaming devices which pay off in cash or physical property. State v. Langford, 144 S.W.2d 448 (Tex. Civ. App. 1940); Broaddus v. State, 150 S.W.2d 247 (Tex. Crim. 1941)

l/ The statute also covers ‘any subassembly or essential part-ntended to be used in connection with such machine or mechanical device.” Sec. l(c), supra.

# 278 Hon. Robert S. Calvert, Page 4 (V-1271)

Hightower v. State, 156 S.W.Zd 327 (Tex. Civ. App. 1941); Martin v. State, 162 S.W. 722 (Tex. Crim. 1942). They have noten considered mere amusement games for ‘skill or pleasure” by previous Legislatures and the Texas Courts. The above cited
cases held that the keeping or exhibiting of such machines is prohibited by Article 619, V.P.C., which fixes apenitentiary sentence for-violation thereof. Article 634, V.P.C., declares the
mere existence ofthis type of gaming device “against public policy and apublic nuisance.” Williams Mfg. Co. v. Prock, 184 F. 2d 307 (U.S. Ct. App.. 5th Cir. 1950).

Itis aproper presumption that the Texas Legislature, in considering H.B. 326. had knowledge ofthe fact that previous statutes, court decisions and declarations ofpublic policy have placed free game pay-off machines in the same category as slot machines, gaming tables, and other devices which pay off inmoney ~;:> or or physical property and that the same penalties are provided for keeping and exhibiting such machines.

Therefore, the question which you have posed is whether the Legislature, knowing the unlawful and felonious nature ofthese free game pay-off machines, intended by its .wording of Section 1 (b)to exempt them from the new law prohibiting possession of other gaming devices of the same category. Specifically; did the Legislature use the word “property” in Section l(b) in its broad
sense so as to include Yfree games,” or was the word used inthe
narrow sense so as to mean “physical property” and thereby exclude free game machines ?

Some courts have construed the word “property” in gaming statutes to include free games, and others have said that it does not include them. In almost all instances the conflicting court decisions are based upon differences of opinion as to the value of free games andthe variation ofpublic policy with relation to free game payyoff devices in the different States.

We have conducted an exhaustive research ofthe‘authorities to determine the fundamental considerations involved inthe interpretation of statutes ofthis character. From this research
we are convinced that the great weight of authority inthe United States compels a construction ofSection l(b) ofthe Act as including such “free **game ”**  devices, and that the considerations given effect in such cases are inharmony with the prevailing case law inthis State construing our gaming statutes.Hon. Robert S. Calvert. Page 5 (V-1271)

awhile the type of prize or award which determines inclusion ofthese devices within Section l(b) is described as “money or property,” the cases dealing with this and similar expressions are almost invariably bottomed on the conception ofthe particular court as to the’relative tangibiJity or value ofthe right to amusement. as afforded by the free games. Thus, where the court, as inthe majority ofthe cases, considers amusement to be of value, the free games are heid to constitute ‘money or property,”

‘property of value,” -a valuable thing,” etc. Those~courts taking
a contrary view invariably base the decision on a conception that the replay privilege is too inconsequential and trivial to be of

‘value.” or too intangible to constitute ‘property” within the mean: ing of such s.tatutes , and within the evil sought to be,remedied thereby.
The basic divergence inthe cases is best comprehended by an examination of the decisions on the subject.

.Rankin v. Mills Novelty Co., 182 Ark. 561. 32 S.W.2d 161 (1930), is aleading case, and one ofthe earliest, on the subject. The Arkansas Supreme Court said, at page 162:

‘In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which any money or property may be won or lost, and any one who shall bet any money or other valuable thing, or”any representative of any thing that is esteemed of value, ’ is guilty. under Section 2634 of Crawford &Moses’ Digest, ofbetting on a gambling device. By section 2640 ofthe same chapter ofthe Diges,t ‘gambling’ is defined as the betting of any money or any valuable thing on any game of hazard or skill. Itis clear from these sections and the entire chapter on gaming that the word ‘propertv’

. as used in section 2630, and .tbewords ‘valuablethin&‘mentioned in other sections.’
are used synonymously, and that any valuable thing or

‘any representative of anv thing that is esteemed .of value’ is ‘property’ within the meaning of section 2630. supra. The machine in question is one which always Gin exchange for anickel apackage of mints, and. in addition to the mints, anumber of ‘slugs,’ in varying amounts from two to twenty, with which agame may be played, there being an element of chance in the numberHon. Robert St Calvert, Page 6 (V-1271)

of slugs obtained for a nickel. Is the right to play a game obtained in the above manner ‘property’ or a

‘thing of value’ within the meaning of our statute prohibiting the setting up of gambling devices and gambling? We think it is. It is amatter of common knowledge that the maintenance ofplaces, having no value inthemselves, butwhich are used for amusement only,
are among the most remunerative kinds ofproperty, such as miniature golf courses and other like means of amusement, and any thing that contributes to the amusement ofthe public is athing of value.

. . .* [Emphasis ours throughout this opinion.]
Howell v. State, 184 Ark. 109, 40 S.W.Zd 782 (1931), follows the Rankin case, supra, which inturn is followed inSteed v. State, 189 Ark. 389, 72S.W.2d 542, 543 (1934), wherein the specific statute involved in all those cases is quoted as prohibiting various games “at which any money or property may be won or lost.”

!n Boynton v. Ellis, 57 F.2d 665 (C,C.A. 10th. 1932). the player ofthe device might receive tokens with which the machine could be replayed. Certain ofthe Kansas Statutes involved prohibited certain games anddevices played for “money or property,” and other of such statutes prohibited those where cash prizes “or other valuable things are given.” The court said, at page 666:

“It seems clear to us that these tokens or checks .which are obtained by chance represent some value and constitute property. The best reason for this view is that the public is thereby enticed into patronizing the machines. It is the professed object of installing them. The tokens or checks may be likened to theater tickets in representing ameans of amusement. The tickets have value. State v. Blair, 130 Kan: 863, 288 I?. 729; State v. Haining, 131 Kan. 854, 293 P. 952.
*

. . . The value may be slight, but still it is propert?. inthat it affords amusement to the players which entices them into patronizing the machines.”
The citation to State v. Haining is significant in that itheld, ineffect, that the amusement at atheater is the thing sold regardless ofwhether tickets evidencing the right to such amusement are sold- 

# 281

Hon. Robert S. Calve&, Page 7 (V-1271)

to the recipient of the right.

Boy&on v. Ellis, supra. is followed in Boynton v. Mills Novelty Co., 60 F.2d 125 (C.C.A. 10th. 1932).

Of similar effect is Colbert v. Superior Confection Co., 154 Okla. 28. 6P.2d 791 (1931), the import ofwhich is that “mon

## ey,

..., checks, credits or any representative of value” are class.es **of** “property” within a statute Using those terms in combination with the term “property.” See, also, Mackay v. State, 83 P.2d 611 (Okla. Grim. 1938). citing other cases to the effect

‘that the Oklahoma slot machine statute was intended to prohibit play on machines for ‘money or other property.” The court cites several cases to the effect that the amusement of additional free plays has avalue, small though it be.

People v. Settles, 78 P.2d 274 (Cal. Sup. Ct., App. Div. 1938). considered whether additional free plays to awinner constituted “property? under a California lottery statute, and held that “the duty ofthe operators ofthis game to permit the winner to play further games free is an obligation arising from contract,” and constituted “personal property.”

‘~Kraus v. City of Cleveland, 135 Ohio St. 43, 19N.E.2d 159 (1939), considered a statute prohibiting devices played for

‘gain” in connection with another statute prohibiting devices played for “money or other property.” After holding that amusement is athing of value, the court concluded that the machine was a gaming device under both ‘statutes:

Middlemas v. Struts. 71 N.D. 186. 299 N.W. 589 (1941), deals with adevice under a North Dakota lottery statute where, to constitute the offense, itwas “essential that the prize or award which the player may win shall be property or an inter.est in propperty.” Conceding that a statutory definition of “personal,proper- i ty” applied, the court said:

. . . The language ‘every description ofmoney, goods, chattels [and) effects’ is broad enough to include every statutory definition ofpersonal property without regard to the particular division of our codes inwhich it may be found. The word ‘effects’ is one of broad ’ significance. When used alone it has been held to include everything that ‘can be termed of value.’

. . .,



# 282 Hon.. Robert S.~Calvert, Page 8 (V-1271)

Y

. . . .

Y

. . . When the player places his coin in the slot, he accepts that offer and acquires thereby an exclusive right, as against the owner and all others, to the use of the machine for the duration of atleast one game. If the player is lucky andwins, the right to the exclusive
use ofthe machine is continued for an indefinite duration. The right to use such amachine for entertainment purposes is athing of value.

. . . It is a thmg subject to ownership and things subject to ownership
are property. People v. Settles et al., 29 Cal. App.. 2dSupp. 781, 78 P.2d 274.
II

. . . The machine here in suit, therefore, is one in the play ofwhich, the player pays avaluable consideration for entertainment and an opportunity dependent chiefly upon chance to win aprize or award which is property.

. . .”

Inholding that free games are within a statute prohibiting games whereby “money or other thing may be won or lost,” the court inSteely v. Commonwealth, 29.1Ky. 554, 164 S.W.2d 977 (1942), held that free games are of sufficient value to fall within gaming statutes, giving particular attention to cases characterizing prohibited games as those wherein the player “hazards his money on the chance that he may receive in return money or property of greater value than he hazards.” To the same general effect is Giomi v. Chase, 47 N.M. 22. 132 P.2d 7,15 (1942), which, inholding that free games are “anything of value,” cites the language **of** Boynton v. Ellis, supra, that “the value may be slig,ht, but still it is property, inthat it affords amusement to the~playeri which entices them into patronizing the machines.”

Except for slight difference in legislative history and the verbiage ofthe Texas Act, and subsequent consideration ofpe’rtinent Texas decisions, our conclusion might be summed up inthe comprehens,ive consideration of the point at issue in Co-onwealth v. Rivers, 323 Mass. 379, 82 N,E.2d 216 (1948). The **Mas** sachusetts Statute prohibited alottery to dispose “of any property of value. ” The device in question gave only free games. After an exhaustive citation of cases considering the meaning of various statutory phrases descriptive ofprizes and awards or prohibited games, the court concludes:.HorLRobert S. Calvert, Page 9 (V-1271)

“By the great we,ight of~authority it is settled as to machines or devices by the operation ofwhich free plays may,be had by chance ‘or hasard that the free plays are,something of value orproperty of valuewithin the meaning of the statutes involved, that it is the right to operate the machine an additional time or times that is the thing played for, and not the token which represents the value. There are cases in a few jurisdictions where ithas been held that **free** plays are not per se things of value, but we are persuaded that the contrary view supported by the great weight of authority of other~courts ofthis country is sustained by the reasoning upon which the results ofthose cases are, based, andwe are in accords therewith. Inthe present case’ it seems that no tokens representing free plays
were delivered by the machine, but rather that the machinc~.,operated as to free plays by an automatic recorded score. But as is said inAlexander vi Martin, 192 S.C.‘176. 183, 6S.E.2d 20, 23, ‘It matters little whether -...~.[the right to play the machine witbout addition&cost] was evidenced by.tokens or by an automatic recorded score.’ And as pointed out before,‘it is the free play itself that is the ‘property of value’- however evidenced.”
There daremany other cases construing statutes which do not use the word “property,” butwhich discuss the relative .value of afree play under statutes which characterize thenprohibited prize as. “thing of value* and other synonymous words. **.Most** ofthese cases characterize the ‘thing:o.f value” with all ofthe attributes’of the **term** “property” in its broade~r sense, andmay be readily aligned with the “property” cases on the basis ofthe fundamental concept ofthe relative value ofthe prize. They are:

Harvie v. Heise, 150 S.C. 277., 148 SE. 66 (1929), noting that since immense sums are paid for amusement it must have a value; Gaither v. Cate, 156 Md. 254, 144 A. 239 (1929). comparing free game to ticket to moving picture show and seeing no essential difference;~State v. Marvin, 211 Iowa 462, 233 N.W. 486 (1930), to **same** effect; Green v. Hart, 41 F.2d 855 (Conn. Dist. Ct. 1930). amusement from free play has value; State V. Mint Vending Machine, Etc., 85 N.H. 22, 154 A. 224 (1931), comparing free plays to theater ticket; White v. Hesse. 48 F.2d 1018 (Ct. of App.; D.C. 1931). value-

**Hon.** Robert S, Calvert. Page 10. (V-1271)

is the “right” to replay; Jenner v. State, 173 Ga. 86, 159 SiE. 564 (1931). comparing free plays’to admission to movie; Sn - der. v. City ofAlliance, 179 NZ. 426 (Ohio Ct. ofApp,1931 , 7’ “amusement is a thing’of value, for which more money is spent perhaps than for any other purpose;” Painter v. State, 163 Term, 627, 45 S.W.2d 146 (1932), noting that the “right” to free play has value; State v. Baitler, 131.Me. 285, 161 A. 671 (1932). holding that tokens “evidence right to operate the ‘amusement.’ Each was aticket to part.of the game;” and citing the Rankin case, supra, among others; Appeal of Mills Nove,lty Co.. Etc., 316 Pa. 449, 175 A. 548 (19341, affirming and adopting;opinion

.. from lower court at 173 **Ai** 753; citing among other cases Commonwealth v. Goldsmith, 17 Pa., Dist.. 81Co. R; 145, to the effect that tokens’for replay for amusement have intrinsic value; Ci& of MiLwankee v. Burns,‘225 Wis. 296, 274 N.W. 273 (1937)., to the effect that since tokens could be used in place of nickels to replay pinball machine, t&y have value; Alexander v. Martin, 192 S.C. i76, 6 S.E.2d 2U;(1939), one of first cases dealing with matic award offree plays on “pinball” machine, holding that “amusertre& iaxecognized **by** the courts as athing of value,” and citing, 

### among others, w v..Heise, supra. to the effect that the thing actually received is the ‘right” to replay, regardless ofwhether automatic 

### or evidenced by tokens; People v. Cerniglia, 11 N.Y.S.td 5 (N.Y. City Magistrates 

### Ct. 1939), free play is 

### a “thing of value; ““Couch v. State, 110 P.2d 613 (Okla. ’ Grim. App. 1941). discussing value of

### free plays under statute classifying “amusement” along with *property, tangible or intangible

. . . or anY,ne+tsuthtive of value or 

### any other thing;” 

### State v. Wiley, 232 bwa 443,A N.W.2d 628 (1942). contains exhaustive,,,‘cit$tions, inclaQfng I- cases, aupra, aroemgthe “great majority,‘“: compares the automatic free game davicea~ %a“token” devices, notes that 

### free plays onmint vending machines- are incidental to ,thesale of mints, while if ‘acoin is inserted Iinthe. pinball machine solely for amusement, the value of free plays is measured by the value ofthe coin, andthat “the rule is the same **whether** the machine emits disks with wls%& it can be replayed or works automatically;” Hunter v. Mayor, etc., pBl8J.L. 164.24 A.2d 553 (lq42), citing cases holdtng that amusement has value, and followed in

### Stafford v. **Garrett,** 

### 128 N.J.L. 623, 28Ai2d 289 (1942); People v. One Pjnbali Machine, 44 fi.E.2d 950 (Dl. App. Ct., 1942). :dontains exhaustive citations noting that the “valuable thing” won is the “right” to play additional games regardless - of how +&right is evidenced; State v. Betti; 34 A.2d 91 (hI.3. ,~. 

### Disk. **Ct.: 1943),**  **reversed** at 42 A.2d 648. infra. .free game:amuser -

# . 285

Horn Robert S. Calvert, Page 11 (V-1271).

ment -a valuable thing;” Oatman v. Davidson, 310 Mich. 57, 16 N.W.2d 665 (1944),~observes that since the plays would ordinarily cost the player five cents each, the opportunity to have free plays is a thing of value, ‘and that there is no difference in principle between atrade check and afree play;” Thamart
v. Moline. 66 Idaho 110. ~156P.Zd 187 (1945), containing exhaustive discussion of cases and holding “right% 

### free play is
a right of value.

.Cases in the contrary category warrant closer analysis than the limits ofthis opinion permit in order to fully appreciate the basic divergence from the majority and the prevailing trend of Texas decisions, as hereafter demonstrated. However, significant points therein will be noted.’

-Davies v. Mills Novelty Co.. 70 F.2d 424 (C.C.A; 8th, 1934). was concerned with a Nebraska Statute. which had not been construed by the state courts, prohibiting games of chance for “money or property” which the court construed to mean ~“money
or other thing of va,lue” but it follows certain minority decisions, hereafter noted, that mere amusement does not offer a sufficient incentive to gambling andthat the machine “has no’element of gain or loss, financial or otherwise.”

Chicago Patent Corporation v. Genco, Inc., 124 F.2d 725 (C.C.A; 7th 1941), was apatent infringement case involving similar pinball machines, wherein defendant contend.ed that the device was a gambling machine and beyond the protection ofthe patent laws. On the basis of Davies v. Mills Novelty Co..*, the court defined a gaming device as one played for “gain,” the test being whether itwas designed for splayfor ‘money or propersty.” ~~Obscovipgtsrat~~%aothing~ of**:monetary..value,** nothingsusceptible ofpurchase and sale passes to the,successful player” [an obviously inaccurate statement], the opinion concluded that since issuance ofapatent creates aprima facie presumption of utility, the absence of any showing by defendant to overcome such presumption and the findings ofthe trial court that the machine may be operated “without gain being afactor” and that itwas capable of legitimate use, the court could not hold as amatter of law that it was inherently a gambling device.

.State v. Waite, 156 Kan. 143, 131 P.2d 708 (1942). dealt with automatic award offree plays on a “pinball” machine ,under
a statute prohibiting machines “designed for the purpose of play-286 Hon.~Robert S. Calvert, Page 12 (V-1271)

ing any game of chance for money or property” andwith which, persons are induced or permitted “to bet or wager any money or other things of value.” The court noted that no “tangible” property was awarded, and rested its decision onwhether such free plays constituted *property.‘ It applied a rule of strict construction. Observing that the Kansas Statutes defined property, itwould not resort to general definitions of the term. It then meticulously dissected the statutory definition of “personal property” as meaning “goods, chattels, effects, evidences of right in action, and all written instruments by which any pecuniary obligation, or any right or title to property, real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or diminished,” Andy concluded that “property” as there used meant tangible property -,-’ something that could be carried physically. The court declined to discuss cases from other jurisdictions with the observation that they usually involved materially different statutes.

Inre Wigton, 30 A.2d 352 (Pa. Super. 1943), involved the : phrases “money or other property of value” wasused in one statute and “money or other valuable .thing” as.used in another statute, and held that free games were neithe~r “property of value: nor “other valuable thing. ” The decision applies a rule of strict conotruction and concludes that something tangible like “money” is contemplated ,bythe combination of such words, expressly giving the **terms a**  narrow meaning. It conceives the mischief to be remedied by the statute as not including the award offree games.

Washington Coin Machine Ass’n v. Callahan,. 142 F.2d 97 (C.A.,D.C., 1944), involved the ph,rase “money or property” as used in the penal statutes ofthe District. On the basis ofthe foregoing cases in this categoryand others, the court concluded that free games were not oftangible or.material value,.

Like Commonwealth v. Rive,rs, stlpra, on the other side of the question, State v; One ‘Jack and Jill” Pinball Machine, 224 S. ~W.2d 854 (MO. Ct. of App.1949). sums upthe conception that free games are not Ymoney or property* 

### with exhaustive annotations and analysis ofthe cases. The Arkansas c,ases are given special attention and the main distinction drawn is that the Rankin case, supra, concluded that the terms “property” and “valuable thing” are used synonymously, while the Missouri Statute does not contain the phrase “valu,able thing” or equivalent wo,rds. A rather lengthy dis.- cussion ofthe basis ofthe court’s conclusion that free games areHon. Robert S. Calvert, Pa,ge ~13(V-1.271)

.not property may be summed upin the following paragraph from the opinibn,~at page,.S61:

.‘,Does the player receive anything of financial or economic value ? Rather isn’t this so-called recreation and*amusement, the ‘antithesis of value 7 Ifone’s time is worthanything. it is a loss .instead of gain, a waste instead of reward. Hope of reward or gain,,above the amount risked, is the lodestone of gambling.. The 1 fact that one has paid five cents for it does not conclusively fix that, or any other sum,, as its value or any value at all.” Referring now.to those decisions which, while snot.discussing the character offree plays as “property,” do support the contrary viewpoint that such free games are ofinconsequential value, we briefly note them:

Overby v. Oklahoma City,, 287,P.796 .(Okla. Crim. 1930), holding that slugs good for free plays were not “something of value” [it is noted that the case was tried on an ag,reed statement of facts which recited that the,slugs had no value] ; People v. Jennings, 257 N.Y. 196, 177 N.E. 419 (1931). speaking of free plays won on a device. observes that “the product, however. is valueless from a monetary standpoint, perhaps, if not from any other,” and that the omission ofthe phrase ,“other things ,ofvalue’! from the particular statute spe.aking of “money, or any check or~memoranda calling for money” limits its application to thinga of money value; Mills Novelty Co. vW

Farrell, 64 F.2d 476 (C.C.A.2d 1933, affirming 3 F.Supp. 555). holding in effect that the ‘insubstantial amusement feature of the machine” in aid ofthe sale ofmints was not ‘any valuable thing,” under.:a ConnecticuLQatute. .and observing.&& *one may not suppose that aperson desiring to gamble would put upmoney in the hope of obtaining tokens which can be used only to produce insignificant humorous sayings. The amusement feature of the machine does not make the machine a gambling device;” Mills Novel-~ ty Co. v+Bolan. 3F. Supp. 968 (N.Y.. D.C. 1933). reluctantly following People v. Jennings, supra, holding that tokens usable for free games are not of value. [The decision was affirmed at 68 F.2d 1009, on the authority of the Jennings andFarrell cases, suE, but, as noted in Petition of Superintendent ofPolice, etc. 17 A. 753, 758. and State v. Wiley, w, the United States Supreme Court granted certiorari, later reversing without prejudice after the New York statute was amended. which action casts a cloud on.

Hon. Robert S. Calvert, ~Page 14 (V-1271)

the New York cases as authority on the subject.] ; Commonwealth
v. Rling, 13A.2d 104 (Pa. Super. 1940). citing Pennsylvania cases, holds that slugs good for replay have no “intrinsic” value contemplated by statutes as theretofore construed; Gayer v. Whelan, 138 P.2d 763 (Cal. Dist. Ct. ofApp. 1943). 

### cites cases to the effect that free plays are not of “material value,” “sufficient value,” or

“tangible value, ” to constitute “things of value,” and concludes that intangibles .are not contemplated by the particular statute which speaks ofwinning or losing “merchandise, money, or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value;” State 

### V. Betti. 42 A.2d 649 (N.J. Ct. of Quarter Sessions 1945). reversing 34 A.2d 91, D, holds free games to be of recreational or amusement value only and notwithin statute condemning plays for “money or other valuable thing.”

The foregoing amply demonstrates the basic considerations upon which the decisions in other states turn. A brief examination ofthe Texas cases should sufficiently indicatetheir consonance with the first line of authorities set out. I

The first Texas~ case of significance is State v. Langford, e, considering free game “marble machines” under Article 619c’V.P.C., which prohibits gaming devices where “money or anything of value is bet thereon.” Noting that the Arkansas Statutes
are “similar inpractically all respects” to the Texas Statutes, the court quotes atlength that portion ofthe opinion in the Rankin case concluding that “property” and “valuable thing” are used synonymously andthat “any valuable thing or ‘any repres.entative of any thing that is esteemed of value’ is ‘property’ within the meaning of the ,Arkansas Statutes.” The opinion also quotes at length the discussion inthe Rankin case of the value of amusement places which “are among the most remunerative kinds ofproperty,” [See complete quotation from the Rankin case at page 5, supra.] For this and other reasons,,the machines were held to be gaming devices.

The Texas Court of Criminal Appeals in Broaddus v. State. s, arso held free game marble machines to be inviolation of Article 619, V.PiC. The court quotes verbatim the opinion inthe Langford. case, including the extended quotation tbereirrfrom the Rankin case indicating the property characteristics of amusement.

Inholding that “pinball” machines awarding free games **were** used to bet “money or anything ofvalue/ as prohibited by Article 619, the court inHightower v. State, sa evidently with-Hon. Robert S. Calve& Page 15 (V-1271)

out the benefit ofthe Broaddus case, also cited. the Rankin and Langford cases, as well as.others previously noted inthat line of authorities. The citations to the Rankin case and Kraus v. City of Cleveland, z, are ofparticular signific~ance in that they hold free games to be “property.”

The Court of Criminal Appeals followed the Broaddns 

### case on its next consideration ofthe marble machines’in Martin
v. State, 6~ where it also held that the trial court need not define a gambling device in its charge where the undisputed evidence showed that free plays are awarded by the machine.

-To the same effect is Williams Mfg. Co. v. Prock; 86 F. Supp. 447 (N.D. Tex. 1949). citing the Hightower and Broaddus
cases. The P&ock case was affirmed at i84 F.2d ‘30 1950), the la-urt observing that to defeat anote given inpayment for such free game pay-off devices it need only be shown:

”

. .r. that by the law ofthat State [Texas,] they were, when exhibited, gambling devices, and their ‘existence’ contrary to the public policy, as well as the specific law ofthat State.” Lastly, in this regard, we call attention to the attitude of the Texas Courts on lottery and similar schemes where, by aprocess ofdisassembling the stages of agift enterprise, attempts have been made to classify the prizes given a,s “free” awards, and to remove the element of consideration from such schemes by socalled “free’ tickets and registrations for the drawing. As best illustrated by the cases cited in Hoffman v. State, 219 S.W.2d 539 (Tax. Civ. App. 1949), the courts ofthis State do not hesitate to I: i. -hold~thatany&direct consideration, such..asadded..patronage to a

1;. place of business, moving from any ofthe participants to thengiver ofthe prize, will support the charges of conducting a lottery. The

1: analogy here is in the substance which the courts accord to other-

[ wise intangible and elusive values in giving effect to the antigambling statutes. As said in a quotation in the Hoffman case of such a scheme, “there is an indirect consideration paid and received. * The Hoffman case is also inpoint on free games, being

“things of value, “‘and cites the Langford and Hightower cases.

The Texas cases, deal primarily with:Article 619,~V.P.C.. which says that any ofthe described devices shall be considered
as used for gaming “if money or anything of value hisbet thereon.”Hon. Robert S. Calvert, Page 16 (V-1271)

In arriving atthe determination that free games are “of value,” the Texas Courts have accepted and followed the reasoning ofthe Rankin case that they are “property” and that in gaming s,tatutes the word “property” is synonymous with “thing of value.” We cannot es,cape the Texas Court’s observation in State v. Lang.- ford, supra, that the Arkansas and Texas Statutes are “similar inpractically all respects” and the fact that the Texas Court quoted with approval these wo,rds from the Rankin cas,e:

“Is the right to play agame obtained in the above
manner ‘property’ or a ‘thing of value’ within the meaning of our statute prohibiting the setting upof gambling devices and gambling? We think it is.”
These same words were recopied by the Texas Court of Criminal Appeals in Broaddus v. State, supra, and their use in that case led a former Texas Attorney General, in Opinion No. O-6431, May 22. 1’945, to conclude:

“It would follow from this then that the right to play the machine is ‘Property’ or ‘a thing of value,’ therefore, ‘onewho deposits acoin and receives only
one play gets value received inthe form of amusement, in like manner, as one who pays afee to play
a game of miniature golf or other game of amusement.

. ..”

Itis proper to assume that the Legislature knew ~ofthese decisions by the Texas Courts andthat the Legislature used the word “property” inthe sense of its previous judicial interpretation in this State-~ .Smithv. Texas Co., 53 S.W.Zd 774 (Tex. Comm. App. 1934); Blanscet v. Palo Duro Furniture Co., 68 S.W.2d 527 (Tex, Civ. App. 1934).

Either “property” or “other valuable thing” would include free g,ames under these decisions, and it would be improper and unreasonable to assume that the Legislature, in selecting the word

“property” in Section l(b), intended to adopt the restricted sense applied by aminority ofthe States rather than the broad sense applied by the Courts of Texas, the Attorney General of Texas, and the great weight of authority inthe United States. I... :-The word “deliver” may suggest the idea that “property” awarded by prohibited devices is.intended to mean physical property.

# 291

Hon. Robert~S. Calvert. Page 17 (V-1271)

Neither term is so restricted inthe statute and both are very generally used in the broader sense. Webster’s New international Dictionary, 2d Ed., gives as the first definition of the~word

‘deliver:” “To set free from restraint; to set at liberty; to release; toliberate, as from control; to free.” Other definitions given are: “To give or transfer; toyield possession or control of; to part with;

. . . to surrender;

. . . tocommunicate; impart.” The synonym given is “release.” Free games are delivered to the winner on marble andpinball machines by the automatic release ofthe mechanism for replay.

Ifthe Legislature had desired to limit the term “property” to physical property, it could have written the word “physical” into the definition. This it did not do, and we are not constrained to do so by interpretation. Such a construction would in effect hold that the Legislature intended to exempt free game pay-off machines from the new law although their only possible
use is apenitentiary offense under Article 619, V.P.C., and their
mere existence is declared *against public policy and apublic nuisance” inArticle 634, V.P.C. This would be an unreas,onable construction and one which conflicts with the public policy ofthis .State with reference to these precise machines. Statutes should ) be construed so as to harmonize with the public policy ofthe State
as expressed in other statutes relating to the same type of gaming devices. McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1942); Dolan v. Walker, 121 Tex. 361, 49 S.W.2d 695 (1932);Freels vi Walker, 26 S.W.2d 627 (Tex. Comm. App. 1930). Inthe McBride
case the court quoted the following language from 59 C-J.. p. 1038, Ei616:

“All statutes are presumed to be enacted by the legislature with full knowledge ofthe existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, and as apart of a general and uniform system ofjurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions ofthe courts.”
Therefore, we conclude that the Legislature used the word “property” in the broad sense which includes free games, and that no other words were necessary either inSection l(a) or l(b) to bring free games within the definition of a slot machine.

# 292 Hon. Robert S. Calvert, Page 18 (V-1271)

We have been submitted very able briefs by interested attorneys who contend that a contrary interpretation is proper because they say *other valuable thing” is the term which covers free games and that itwas used in Section l(a) and purposely omitted from l(b). This entire argument is based upon the erroneous assumption that “valuable thing” is synonymous with

“free games” and used in Section l(a) for the sole pu.rpose of covering free games. As heretofore shown, the term ‘property” in l(a) and,l(b) is broad enough to cover freesgames. The addition ofthe term “other valuable thing” in Section l(a) must have been for the purpose of covering something other than free games. The devices covered by l(a),and commonly known as the one-arm or console slot machines, do not ordinarily pay off in free games. The term “other valuable thing” might have been placed inSection l(a) to make certain that it covered slot machines which delivered any conceivable, prize other than money, tokens, free games and merchandise, or in an attempt to prevent their existence and possession for amusement play even when noprize of any nature is awarded. Whatever the reason, we cannot say that itwas solely for the purpose ofpreventing payment of free games and that its inclusion in l(a) and omission in l(b) was intentional on the part of the Legislature for the purpose of condemning free game prizes on machines described in l(s) and exempting them from condemnation
as prizes on machines described in l(b).

The briefs submitted by counsel who urge the contrary view insist that the definitions in the Texas Act are borrowed from the Federal Anti-Slot Machine Act [P.L. 906. Elst Congress ofthe United States,19501 except for the addition of “other thing of value” inSection l(a); that the Federal Act omitted the words “other thing of value” and used only ‘“money or property” so as to exclude free game machines from the Federal law; that the history ofthe Federal Act, as shown by the House Committee hearings and report, shows that “money or property” was not intended to cover free game payoff machines; that in borrowing the definitions of the Federal Act the Texas Legislature must be presumed to have intended the term to mean the same as Congress intended in the Federal Act; andthat by adding “other valuable thing” inSection l(a) and omitting itin l(b) the Texas Legislature intentionally excluded free game pay-off machines from H.B. 326.

There are many reasons why we cannot give controlling effect to this aid ininterpreting legislative intent. Inthe first place.
we do not~believe that the wording of the Texas Statute is ambiguous so. 

# 293

Honr RobertS. Calvert; Page 19 (V-1271)

as to require the application ofthis. aid in its construction. Even so, the rule-that a legislative act borrowed or adopted from the laws of another jurisdiction will ordinarily be given the same construction in Texas that it hadpreviously received inthejurisdiction from which itwas borrowed, applies only when there has been previous judicial interpretation **of** the law inthe other jurisdiction. **We** know ofno such interpretation ofthe terms ‘money or property” inPublic Law 906. Even when conditions ofthe rule have been met, the rule is amere aid in legislative interpretation and is by no means binding or conclusive. Snoddy V. Cage, 5 Tex. 106 (1849); Paragon Oil Syndicate v. Rhoades Drilling Co., 277 S.W. 1036 (Tex. Comm. App. 1925). When there are conflicting court decisions in other jurisdictions, Texas Courts are free to adopt a reasonable construction ofthe meaning ofthe terms in question. Howth v. J.,I. ,.Case Threshing Machine Co., 280 S.W. 238 (Tex. Civ. App. 1926, error ref.). Secondly, in no instance have we found the rule applied when the courts ofthe borrowing state have previously given a contrary interpretation and meaning to the words used inthe borrowed phrase or sentence. A State Legislature is presumed to know of the decisions ,9fits own courts and~tointend the meaning previously attributed by them to the same words in similar legislation. Smith
.v. Texas Co.,, .s; Blanscet v. Palo Duro, supra. Further, the rule of applying aforeign meaning to borrowed phrases never applies when suah constiuction is’contrarv to the spirit and.nolicv of thejurisprudence of Texas. Paragon Oil Syndicate v. Rhoides, supra; Edwards.hffg. Co. v. Souper Civ. App. 1926’):. It is certain that the construction placed on the terms ofthe Federal Act (restricted use ofthe word ‘property” * so as to exclude free game~pay-off marble and pinball machines) is contrary to the spirit and policy of Texas law on the subject of gaming. See Articles 619 and-634, V.P.C.; State v. Langford. supra; Broaddus v. State, SE, Hightower v. State, supra; Martin v. State, supra; and Prock v. Williams Mfg. Co., 184 F.2d 307 (C.C.A. 5th 1950). Finally, there are other aids to statutory construction of equal standing and of far more importance in this instance in determining the intention ofthe Legislature. These include the public policy ofthe State with reference to the subject matter, which has already been discussed, the old law. the evils sought to be cured, andthe legislative history ofthe particular Act under consideration. The old law, which was not repealed, classifies free game pay-off

# 294 Hon. Robert S. Calvert, Page 20 (V-1271)

machines with all other gaming devices as unlawful and against public policy in Texas. The evil sought to be cured by H. B. 326 is the mere possession or existence of “illegal gaming devices

. . . kept and operated in this State and taking money from school children and others in large sums
. . . and the fact that present laws are not adequate to suppress their profitable operation

. . . .” .,I
Sec. 9, H.B. 326 (Emergency Clause). ;;g -c: Itis amatter of common knowledge from the public press Y$; and public statements ofthose sponsoring H.B. 326, and the com- .i_ panion Senate Bill (S.B. 323), that free game marble and pinball ‘Tt machines were one ofthe evils intended to be more effectively sup- ;;i pressed by the Act. While H.B. 326 was pending before its passage ~7; by either House, one ofits authors, Representative James B.Adarns,:&~: ,made apublic speech explaining the purpose and scope ofthe pro- .,$ posed law to a conference ofthe State’s prosecuting attorne s called ‘>y~ by the Attorney General of Texas in Austin on March 30-31. 3 Inthe:c

course of his explanation ofthe evils proposed to be remedied byH. ‘MY ~B.326, Mr. Adams said: ,,f ,,;; “Then under section (b)we go down and take in any machine or mechanical device manufactured or adapted to operate by means ofthe insertion of a coin, token, or other object, and designed, manufactured, or adapted so that when operated it may deliver, as the result of an application of an element of chance, any money or property. Well, as you know, our Court of Criminal Appeals has held that free plays on a five-ball pinball machine does-con&itute something of value and, therefore, under our present law every five-ball pinball machine placed in operation in youid~rugstores, your bus stations, and places like that, they do constitute aviolation of our present gaming laws. “”j.

“Many people said, ‘Well, they are just an amusement device.’ But we felt otherwise on that; and. as a result of studying the’crime reports ofthe different crime commissions, we have had it pointed out to us time and time again where pinball machines, so-called harmless amusement devices only, are utilized for opening upclosed territory to

2/ Proc$edings ofthe Attorney General’s Conference of Dist&t and.County Attorneys on Organized Crime, 1951, pp. 58-63.. -- Hon. Robert S. Calve& Page 21 (V-1271) 

# 295

gambling. They start off with those, andthen through
asteady process they get the people acclimated to gaming. Then they can bring intheir regular one-armed bandits and consoles.

~*Now under this law. under Section (2) ifthey take th:counting devices off of the machines -- every.slot machine manufacturer since 1946, as most ofyou know. has had two little devices under the machine. One of them, every time you win a free play. registers. You have abutton on the left which is your re-play button. Every time you push that button it registers on one of the counters ovei here. Then when a man pays you off, it has a sepagate 

### counter over here. Ifyou just re-play it, the re-plays show on this one. But if itpays you off, he reaches under the back at another button, presses it, and it registers on an automatic counter. Therefore,when the local coin machine operator comes around to his establishment, they raise upthe machine and look atthe counter and see how many games have been won onthe machine. Then, if he is inthe habit of paying off his customers when they win, they look at this other counter and they can determine just how much this man paid out in cash.
“Well, if they take all those off and fix the five-ball pinball machines where they do not show a re-play, -- : where after you get so many thousands in score on the machine ,itshows ‘are-play up on the board, -- well, if they take those devices off, then they would not come under thenterms ofthis act. However, if they do go that far, then you can rest assured that it is an amusement device because aman has to put anickel in it every time he plays it. And also, even ifthe man does say, ‘Well, ifyou get so many thousand Iwill pay off over the counter,’ you can eliminate about 90 per cent ofthe gambling, unless the man owns the machine. No operator is going to trust the local drugstore
owner or local beer joint operator to tell him how much he paid out because, as we have been previously shown, there is no honor among thieves; and ifthey don’t have that automatic element of being able to tell exactly how much was paid off, well.then we will eliminate the gaming aspects from these amusement-only machines.”
Both the evils to be remedied by and the history of H.B. 326 vary greatly from those of the Federal law. The Federal authorHon. Robert S. Calvert, Page 22 (V-1271)

ities and most of the Federal 

### courts have not considered free 

### game machines an evil to be eliminated. They do not consider free 

### games to be either “property” or ‘a thing of value.“

. The history ofPublic Law 906 shows that machines awarding free games or amusement only were to be excluded from the use ofthe words ‘money or property. m In Texas itwas quits different, Free games have 

### long been considered “property” or “a thing ofvalue” and free game machines have been condemned as gaming devices and against public policy. The history ofH.B. 326 inthe Texas Legislature shows that free game machines were intended to,be included rather than excluded from the Act. The best recorded evidence ofthis fact is the defeat of an amendment on the floor ofthe House which had as its purpose the exemption of certain free game machines from Section l(b) of the Act. Representative Beno Tufares offered the amendment to Section l,(b) as follows:

“Amend HiB. 326, line 34, after ‘property’; andbefore ‘or’ by inserting the following: ‘except pinball machins:of 5balls which allow free games upto 10. bandfree games only.’ n3
This amendment was tabled by a vote of 104 to 28. Itis strong evidence that the Legislature considered the word “property”
as including free games and that there was no desire ‘toexempt any type of free game machines. It~has been argued that it is just as reasonable to conclude that free game machines were already excluded and the amendment was therefore unnecessary. To be sure that our interpretation is not in conflict with what actually transpired on the floor ofthe Housesin connection with this amendment,
we have obtained statements from the author ofthe amendment, Representative T.ufares, and from Representative Adams, who. as author ofH.B.. 326, moved to table the Tufares amendment. Evidence as to what was said in legislative debates by sponsors of a bill is sometimes admissible to aid in construction of an ambiguous statute.. Ex parts Peed,, 170 S.W.,749 **(Tex.** Grim. App. 1914). .Since this aid is being used here only for the purpose of countering arguments based upon similar evidence {statements made in Congressional Committees] as to the intent of Congress’ in Public Law 906, we **feel** free to consider and quote the written statement

2/ ,House Journal, 52nd Legislatur;, page 1369.Hon. Robert S. Calve& Page 23 (V-1271)

of Mr. Tufares, affirmed by Mr. Adams, as follows:

“Representative Jimmie Adams, the author of the bill, in explaining the purpose and object ofthe act and what was covered thereby, said onthe floor ofthe House that itwould make unlawful all slot machines, marble tables and pinball tables which paid off inmon-. ey, free games, or any other type ofproperty. He said the definition of Section l(b) covered ‘free game’ machines because the Texas courts had held- any token or free game to be property under the Texas gambling flaws. He said that ‘five,ball’ marble **machines** which paid’off in free games would’be prohibited under this bill; Con-~ sidering a’five ball marble table to be”a;game. of skiii” ~ rather than a game of chance. Ioffered the amendment. reported inthe Journal excluding those that offered~up to 10free games. Itold the House in debate that my amendment was’ necessary to exclude, five ball ‘free game’ marble tables’~(upto 10 free games) from the a& ” upder consideration.~ No one made ‘any.argument that **free** game machines’werealready excluded under ‘then ’ ,.., bill,and no one disputed the author’s statement that they. would come under the act as worded. The author did say that ifthe free game device was eliminated from the five ball machines, they could still be possessed and operated. Rep. Adams opposed my amendment with the argument on the floor that permissionof 10free games onmarble tables .might lead to conversion of slot machines to.that method of operation, and my amendment was defeated.”
Consideration ofthe suggested aids in construction of ambiguous statutes merely confirms our interpretation ofthe plain words ofthe statute.itself;~

You are therefore advised that coin-operated pinball or marble machines which are designed, manufactured or adapted,
~’
so that when operated they may deliver to the winner, as a result of the application of an element of chance, money, free games, or other~property are included within the provisions and penalties set out inH.B. 326. :.

SUMMARY
The keeping or’exhibition of coin-operated pinball298 Hon.. Robert S. Calvert, Page 24 **(V-1271)**

or marble machines which pay off the winners automatically inmoney or free games have been held by the Texas Court of Criminal Appeals tobe in violation of Article 619,.V.P.C.. andtherefore afelony offense. Under Article.634, V.P.C.. they are declared to be against the public policy and apublic nuisance, Williams Mfg. Co. v. Prock, 184 F.2d 307 (U.S. Ct. App., 5th Cir. 1950).
The manufacture, ownership, transportation, possession, etc., of coin-operated pinball or marble machines which are designed, manufactured or adapted so as to deliver to the winner, as a result ofthe application of an element of chance, money, free games, or any other. property, are prohibited by H.B. 326, 52nd Legislature, 1951 (Art. 642a. V.B.C.).
The term “property” is used inSection l(b) ofH.B. 326 (Art. 642a, V.P,C.) inits broad sense so as to include free games, this construction being in accord with ~Texas court decisions ,and the weight of authority in other jurisdictions. Yoys very truly,

PRICE DANIEL

Assistants
NMcD/JF J/mf

~Considered and approved in conference this 5th day of September, 1951.

Attorney General