dissenting:
I agree with the opinion of the majority insofar as it rejects the argument of the licensee that Rule 20 is invalid because the Commission has no legitimate concern with gambling on licensed premises. I agree, too, that “it may be fairly inferred that there is an open and direct relationship between the purchase of a ‘Federal Occupational Wagering stamp’ and the ultimate fact of gambling.” But I do not agree with the conclusion that “Rule 20 is invalid insofar as it relates to the $250 device stamp.”
The primary difficulty with the opinion, as I see it, is that it tests the validity of the rule of the Liquor Control Commission by standards that would be applicable if the licensee had been convicted of gambling solely upon proof that he had purchased a $250 federal gambling stamp. If that was the issue in this case, I would agree that proof of the purchase of a $250 gambling stamp, without more, would not sustain a conviction. A somewhat similar issue was presented in the Florida case that is cited in the majority opinion, (Jefferson v. Sweat, 76 So. 2d 494 (Fla. 1954), and it is from that case that the opinion draws the argument that it makes with respect to presumptions.
But the rule of the Commission with which we are concerned looks to future conduct rather than to past transgressions. Whether or not a particular tavern keeper has been guilty of gambling has no bearing upon its validity. Indeed, the rule aims at the conduct of patrons quite as much as at the conduct of licensees. The approach of the majority opinion would, if applied generally, invalidate many provisions the validity of which can hardly be doubted. For example, section 9 of Article VI of the Liquor Control Act forbids access from the licensed premises to dwelling quarters, unless the dwelling quarters are those of the licensee and his family. (Ill. Rev. Stat. 1963, chap. 43, par. 128.) Upon the reasoning of the majority, this provision would seem to be vulnerable to attack on the ground that it establishes a presumption that dwelling quarters to which there is access from a tavern will be used for immoral purposes.
The validity of the Commission’s rule depends upon whether or not it is reasonably related to the prevention of gambling on licensed premises. That relationship is obvious and indeed is conceded in the majority opinion. But the Commission has incorporated by reference in its rule the classification of gaming devices established by federal statute in connection with the impositon of a federal excise tax, (26 USCA 4461, 4462) and to invalidate the rule the opinion relies upon what it considers to be a fatal inconsistency between the law of Illinois and the federal classification incorporated in the rule. In my opinion the inconsistency upon which the opinion relies is either nonexistent or so minimal that it does not affect the basic relationship between the rule and the Commission’s objective in adopting it.
Under the Illinois statute, gambling devices are subject to seizure, confiscation and destruction, but 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,” is excluded from the statutory definition of a gambling device. Ill. Rev. Stat. 1961, chap. 38, pars. 28—2(a) (1) (italics supplied) ; 28—5.
On its face, the statute contradicts the statement in the opinion that “* * * it is the view in this jurisdiction that a pinball mahine is not a gaming device per se since its use may be solely for entertanment purposes. People v. One Mechanical Device, 11 Ill.2d 151.” Moreover, the case cited does not support the statement. There the ruling of the circuit judge, that a particular pinball machine was a contraband gambling device, and so subject to confiscation and destruction, even in the absence of any evidence that it had ever been used for gambling purposes, was unanimously affirmed by the three judges of the appellate court. It was reversed in this court, however, on the ground that the device was “so constructed or devised as to make such result of its operation to depend in part upon the skill of the player.”
Three of the judges of this court dissented from that conclusion. The authority of the Commission to prevent gambling in taverns is not restricted to the control of those gambling devices that are subject to confiscation and destruction as contraband. It can, in my opinion, prohibit other devices that peculiarly lend themselves to gambling by the licensee or his patrons. The federal statute classifies coin operated machines into two categories, one of which, characterized as an amusement device, requires a $10 stamp, and the other, characterized as a gambling device, requires a $250 stamp. The rule of the Commission utilizes this classification, and treats the purchase of a $250 federal stamp as evidence of the purchase of a device that is suitable for gambling. The question to be decided is whether the classification thus adopted is reasonably related to the prevention of gambling on premises that are licensed for the sale of intoxicating liquor at retail. That the devices for which a $250 gambling stamp is required are those devices that are so designed that they lend themselves to gambling is apparent from the federal cases that are cited in the majority opinion.
For example, in United States v. Nine Gambling Devices, 59-2 USTC par. 15,257 (S.D. Ill. 1957) the pinball machine awarded up to 1000 ‘free replays” which were recorded on an illuminated score board. The replays could either be used by playing additional games or could be “knocked off” by a device which recorded them on a meter. There was a provision for multiple coin insertion which allowed the player to win additional free replays if he was successful. The court held that these features made the pinball machine a gaming device subject to the $250 tax. The court’s reasoning was similar to that in Turner v. United States, 62-1 USTC par. 15,402 (D.C. Kan. 1962). “Generally a machine designed and intended for operation merely for amusement purposes will award the player a maximum accumulated total of 26 free games. On plaintiff’s machine, if only one coin is inserted, the player can win not more than 4 free games on a single play; if an additional coin is inserted, he may win as many as 204 games on a single play and may accumulate a total of as many as 999 free games. The push button, or ‘knock-off’ button serves to release completely all free games so accumulated so as to render the machine unplayable without the insertion of a coin; when that button is depressed, the meter automatically records the total free games so released. If a player accumulated 999 free games, it would require approximately 33 hours and 18 minutes of continuous and uninterrupted play to use up the free games, and then only if no additional free games were won. The ‘knock-off button’ for releasing free plays and the meter for recording the free plays released or the provision for multiple coin insertion to increase the odds serve no useful purpose on a machine designed merely for amusement and they increase the cost of the machine without increasing the income from the machine when used for amusement. Such devices are specially adapted for use as gambling devices.”
In my view, devices of the kind described and dealt with in the federal decisions are contraband and subject to destruction under Illinois law. But if I am wrong as to that, it seems clear to me that those devices are of such a character that their possession, evidenced by the purchase of a $250 federal gambling stamp, may properly be the basis of a license revocation by the Commission.
I would affirm the decision of the appellate court.