MOTION FOR REHEARING OR CERTIFICATION OPINION
By HURD, j:Since our decision in the instant case, rendered June 17, 1955, plaintiff-appellee has filed a motion for rehearing or in the alternative, for an order certifying the record in this case to the Supreme Court on the ground that the judgment herein is in conflict with the cases of Brafford v. Calhoun, 72 Oh Ap 333 and State v. Simonian, 77 Oh Ap 201.
Plaintiff-appellee complains of the seventh conclusion of law which reads as follows:
“7. The defendant may not confiscate any machines which the plaintiff may own nor revoke the plaintiff’s license as a distributor, on the sole ground that such machines afford the right of free play. However, this conclusion (7) has no application to the types of machines considered in the evidence in the present case; namely, plaintiff’s exhibit 13, or defendant’s exhibit 1.”
The plaintiff appellee is hardly in a position to complain of this finding because obviously it is in its favor inasmuch as the Court, in approving the findings of fact and conclusions of law of the Special Master Commissioner, held that the Skill Pool Machine, Plaintiff’s Exhibit 13, and the Bingo Bally Beach Club Machine, Defendant’s Exhibit 1, constituted gambling devices or machines by reason of which the City of Cincinnati, et al, defendants-appellants, should not be enjoined from taking action according to law to prevent the plaintiff from a continuation of unlawful practices with relation to said two types of machines. We are in accord with the statement contained in the brief of the City Solicitor as follows:
“Plaintiff-appellee’s application for a rehearing seemingly is based on the grounds that the court did not, but should have, decided whether all pinball machines are gambling devices and whether the pinball machines in evidence in the case would be gambling devices if the free play element were removed. Obviously, the court can pass only on questions which are raised by the record and neither of these questions were raised by the record. The court could only pass upon the pinball machines which were actually introduced into evidence and state a general principle of law, which it did, that any pinball machine which gives a chance for a prize for a price is a gambling device. Since the undisputed testimony in the case was that all the pinball machines owned by plaintiff-appellee operated with a free play device, the court obviously could not in *360this case pass upon the question of whether such machines would be gambling devices if the free play element was eliminated.”
The plaintiff-appellee further argues that a rehearing should be granted “because the court failed to take into consideration the modification of the Statutes since the decision in Kraus v. City of Cleveland, 135 Oh St 43.”
This statement is not correct. It is true that we did not discuss the amendments of September 18, 1951, in our memorandum opinion of June 17, 1955. However, these amendments were discussed in the findings of fact and conclusions of law of the Special Master Commissioner which we confirmed. That should be sufficient.
Furthermore, the amendments of September 18, 1951, enlarged or broadened the scope of the applicable laws with respect to exhibiting, owning, possessing or transporting gambling devices for gain. That is why we stated that the case of Kraus v. City of Cleveland, supra, in principle, supports the principles of law here presented even though we recognized the existence of certain factual differencs between the two cases.
It is clear, we think, that it was the intention of the Legislature in enacting new §13066-1 GC (§2915.16 R. C.), defining the term gambling device as used in §§13066-2 and 13066-3 GC (§§2915.17 and 2915.18 R. C.) and “other than as defined in §§13063-3 and 13063-4 GC” (§§2915.10 and 2915.12 R. C.) to make the laws with respect to gambling devices all inclusive. It cannot be assumed that the Legislature intended to do a vain thing by adopting amendments to existing laws prohibiting the manufacture, use and exhibition of gambling devices for gain and at the same time enacted legislations excepting gambling devices from such prohibition, nor can such amendments be construed as a limitation on constitutional prohibitions against gambling.
In relation to this proposition, the Legislature may have had in mind the substance of the oft quoted excerpt from the case of Moberly v. Deskin (1913) 169 Mo. Ap. 672, 155 SW 842, which is particularly apropos:
“In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the .spirit and thwart the benficient objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified, and cunning mechanical inventions.”
Coming now to a consideration of the cases which are asserted to be. in conflict with our decision, namely, State v. Simonian, supra, and Brafford v. Calhoun, supra, while there may be some slight analogy, we do not find these cases, on the facts and the law, to be directly in conflict with our decision in the instant case. However, we find it unnecessary to discuss this question for the reason that these decisions were rendered by the Court of Appeals of the First Appellate District. *361Inasmuch as our decision in this case was rendered while sitting by designation in the First Appellate District, the provisions of Section 6, Art. 4 of the Constitution, requiring certification to the Supreme Court on the ground of conflict, have no application here. The constitutional provisions requiring certification on the ground of conflict have application only where a judgment of the Court of Appeals of one district establishes a rule of law contrary to the rule of law established by the Court of Appeals of another district.
Holding these views, we conclude that the application for rehearing should be overruled and the motion to certify on the ground of conflict should likewise be overruled.
Entry accordingly. Exceptions given.
KOVACHY, PJ, SKEEL, J, concur.