concurring: On the simple and sole question presented, i. e., whether playing a slot machine is a game of chance with characteristics comparable to bingo, I agree the state’s appeal must be sustained. However, I cannot agree that the determination of this simple question necessitated consideration of a constitutional question which is neither raised, briefed, argued nor suggested by either party on appeal. As pointed out in the court’s opinion, it is a firmly established principle in this jurisdiction that the constitutionality of a statute will not be determined in any case unless such determination is absolutely necessary or imperatively required. (Keplinger v. Kansas City, 122 Kan. 158, 251 Pac. 413; and Clewell v. School District, 115 Kan. 176, 222 Pac. 74.) The restraint assiduously exercised heretofore by this court in this regard is demonstrated in treatment given the subject in the case of National Van *447Lines v. Jones, 192 Kan. 338, 388 P. 2d 660. In the Jones case, even though unconstitutionality of sections of the motor carriers act was asserted in the petition and briefed by both parties on appeal, this court refrained from passing on the constitutional questions urged and held:
“An appellate court will not assume to pass upon constitutional questions unless they are properly before it, and the rule that only those questions presented to and decided by a trial court will be considered on appeal has particular application to matters pertaining to the constitutionality of a statute.” (Syl. f 1.)
While the state designated in its statement of points on appeal that the trial court erred in declining to rule on the validity of the bingo legislation, no claim is made that the question was urged or submitted to the court below and certainly no assertion of unconstitutionality is made to this court. When questioned on oral argument concerning the matter, the attorney general positively stated that he did not challenge the constitutionality of the act in question.
Judicial restraint in attacking the constitutionality of legislative acts is not a rule casually conceived for the purpose of avoiding the performance of judicial duty, rather the principle is premised on valid, substantial reasons grounded in orderly judicial process and the doctrine of separation of powers. Judicial restraint and the reasons therefore in this regard are universally recognized. In 16 Am. Jur. 2d, Constitutional Law, § 111, p. 296, this statement appears:
“It has been stated that the invariable practice of the court is never to consider the constitutionality of state legislation unless it is imperatively required.” (p. 298.)
It is only when the determination of constitutionality becomes necessary in the course of a proper judicial proceeding, and the issue is sufficiently raised, that a court can or should undertake such a consideration. The power to declare a legislative act unconstitutional is a delicate one, involving a great responsibility, and should be exercised cautiously and with reluctance, and only when such conclusion is unavoidable. (16 C. J. S., Constitutional .Law, § 92, pp. 293, 299 and 300.)
The majority recognize some of the decisions of this court, but after coming face to face with the salutary and long-standing rule, come to the conclusion that the instant case justifies a departure therefrom. I hold to the contrary because I find no absolute necessity or imperative requirement that the constitutionality, of the *448statute in question be determined on our own motion on appeal. By so doing either or both parties have been precluded from asserting a position or making a record in connection with the issue including the presentation of evidence, if any there be, bearing on the question.
This case was instigated by the filing of three, one count, informations; respectively charging defendant Nelson with possession of a gambling device under K. S. A. 1971 Supp. 21-4307, and defendants Hutton and Culver with entering and remaining in a gambling place with intent to gamble under K. S. A. 1971 Supp. 21-4303. The states evidence consisted of identifying the five slot machines seized and showing that defendants Culver and Hutton were seen playing tire machines. The trial court personally viewed the five slot machines. The evidence is fully sufficient to support a conviction on each of the charges.
Defendants’ evidence consisted primarily of a showing as to what was done with money taken from the machines. It was stipulated that the American Legion Club was exempt under the pertinent provisions of the Internal Revenue Act. The only evidence concerning “bingo” or its characteristics was the brief testimony of Donald Bain which appears in the record as follows:
“I am principal at Iola High School. Bingo is a game of ‘ chance where numbers are drawn out of a box and markers are then placed on comparable numbers on cards used by the players. The winner or receiver of a prize is the one who has five markers in a row. Bingo is a common game.”
On this record the trial court found that slot machines were included in the phrase “bingo and games of comparable characteristics” as it appears in K. S. A. 1971 Supp. 21-4302. In my view, the meager evidence totally fails to support the trial court’s finding. Moreover, one need go no further than the dictionary to find the two terms distinguishable. Webster’s Third New International Dictionary (unabridged) defines a slot machine:
“1: a machine (as a vending machine) whose operation is started by dropping a coin into a slot 2: a coin operated gambling machine that pays off according to the matching of symbols on wheels spun by a handle — called also
one-armed bandit.” (p. 2146.)
While the characteristics of “bingo” are described as:
“la: a game resembling lotto or keno, the card used being a grid on which five numbers that are covered in a row in any direction constitute a win, the center square being counted as an already drawn number — called also beano b: a social gathering at which bingo is played 2: a dice game with usu. petty merchandise as stakes.” (p. 217.)
*449A slot machine has been declared a gambling device per se by this court. (State, ex rel., v. Myers, 152 Kan. 52, 102 P. 2d 1028. See, also, State v. Shaffer, 156 Ohio St. 153, 101 N. E. 2d 380, and State v. Joyland Club, 124 Mont. 122, 220 P. 2d 988.) Slot machines have been specifically defined and given particular attention by previous legislatures. (K. S. A. 21-1507, 1508 and 1509, since repealed. ) Bingo, on the other hand, is a game which would require some evidence in order to establish that the game being played was gambling under either former or present statutes.
While the parties use terms in their briefs, which are frequently used in cases dealing with lottery and gambling, their arguments are clearly directed to the issue whether bingo and slot machines have comparable characteristics. The constitutional question is neither argued nor suggested and I find nothing in the briefs or arguments which compels the consideration thereof. This case is not a prosecution based on an unconstitutional statute, a circumstance which would give rise to a jurisdictional question.
No case has come to my attention wherein this court has established a standard for what might amount to “absolute necessity” or “imperative requirement”; apparently, for the simple reason that heretofore those prerequisites have never been found to exist in a case such as that before us. Certainly there is no showing of any compelling emergency in the instant case which justifies disregarding propriety of judicial restraint in the delicate function of striking down acts of the legislature.
In this case, it appears the legislature has attempted to exempt bingo from the constitutional provision prohibiting lotteries and gambling statutes by deleting the element of consideration from this court’s definition of a lottery, when bingo is played in and the proceeds thereof, if any, go to a tax exempt or so-called nonprofit club as described in the statute. The exemption of certain operations carried on by religious, charitable or other nonprofit organizations from constitutional and statutory prohibitions against gambling is not a new or novel subject of legislation. (See 42 A. L. R. 3d, Anno, pp. 663-674, and cases discussed therein.) In several instances, for example, Greater Loretta Imp. Ass’n v. State Ex Rel. Boone, [Fla. 1970], 234 So. 2d 665, statutes were upheld. In many other cases statutes have been stricken when the constitutional question has been properly presented in the jurisdiction involved. An examination of the cases reveals that the constitutional questions *450are not resolved without some difficulty even when properly raised and presented.
I voice no opnion concerning the constitutionality of the statute involved herein, but in the absence of a clear showing that determination of the constitutional issue was necessary, I believe that the sua sponte determination thereof by this court, on the record presented, is improper under the circumstances and in violation of the rule long adhered to by this court.