I am unable to agree with the foregoing opinion and respectfully dissent.
One of the most revealing paragraphs of the majority opinion is that which asserts that "obviously, pinball machines may not properly be compared to games of skill such as bowling or baseball" which are essentially based upon skill rather than chance, because pinball machines are "so constructed that skill is thwarted by hazard and chance is the dominating element." The majority then state that it is no longer necessary that chance be the dominating element and that the possession of any slot machine or device with an element of chance is prohibited. It is only necessary to separate the words "slot machine" from the phrase "device with an element of chance," and, following the majority opinion to its logical conclusion, a bowling alley is a gambling device because it is a "device with an element of chance." A game of bowling is customarily played in ten "frames." Each player ordinarily secures two balls for each frame. However, if a player were skillful enough and lucky enough to bowl a perfect game, that is make a "strike" with every ball he plays, instead of 20 balls for the game, he would only have the privilege of playing twelve. On *Page 454 the other hand, if he made no strikes whatever until the last frame, he would have 21 balls to play. While bowling is primarily a game of skill, it cannot be denied that there is an element of chance in it, and this element of chance may determine how many balls the player can play for each game. Accordingly, under the reasoning of the majority opinion, it is perfectly logical to say that a bowling alley is a gambling device.
Were we to so hold, then, under the holding of this court in the case of State v. Cowen, 231 Iowa 1117, 3 N.W.2d 176, which the majority opinion follows herein, the bowling alley could be confiscated and destroyed without compensation to the proprietor, the proprietor would also be guilty of a crime for having the same in his possession, would be guilty of operating a gambling house, and every bowler would be guilty of the crime of gambling. I cannot conceive that the legislature intended any such result.
While the constitutional question of depriving one of his property without due process of law is not specifically raised in this case, the question is one which should be given consideration. Under the majority opinion, one who permits the operation upon his premises of a "device with an element of chance," may lose that property on the theory that it is contraband. I do not think that any such drastic penalty should be inflicted unless the device is actually a gambling device. To be such, it must have something more than an element of chance; otherwise, many devices obviously legitimate might be seized and destroyed without compensation to the owners thereof.
I am persuaded that the court, in the case of Mills Novelty Co. v. Farrell, 2 Cir., Conn., 64 F.2d 476, 478, announced a sound rule when it stated:
"One may not suppose that a person desiring to gamble would put up money 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. It arouses interest and perhaps attracts customers to the machine in much the same way as advertising would, but this is lawful."
The court was dealing with the same proposition that confronted *Page 455 us in State ex rel. Manchester v. Marvin, relied upon by the majority. Such also was the case of Davies v. Mills Novelty Co., 8 Cir., Neb., 70 F.2d 424, 426, wherein the language of the Farrell case was quoted with approval, and the court adds:
"Under the evidence and the findings of the lower court, these machines are lacking in the essential elements necessary to make of them gambling devices or gambling machines. There is no element of gain or loss, financial or otherwise, involved in the transaction."
Along the same lines is the case of Commonwealth v. Mihalow, 142 Pa. Sup. 433, 439, 16 A.2d 656, 659. In discussing a pinball machine, the court states as follows:
"But a machine upon which games are played for amusement, although involving an element of chance, is not ipso facto a gambling device or a gambling machine. See In re Mapakarakes, supra; People v. One Slot Machine in Parkside Recreation Parlor,303 Ill. App. 337, 25 N.E.2d 139; Com. v. Kling, 140 Pa. Super. 68, 13 A.2d 104."
As I see it, something more than an element of chance is necessary to render a device a gambling machine. Practically every legitimate business has some element of chance in connection with its operation. The presence of that factor does not render the enterprise unlawful. Neither is innocent recreation or amusement, such as bowling, rendered illegal because something of value, such as an extra ball to be played, may be gained as the result of chance. As pointed out by this court in the case of State v. Hundling, 220 Iowa 1369, 1371, 264 N.W. 608, 609, 103 A.L.R. 861, the evil which the state condemns in a gambling enterprise is that "it arouses the gambling spirit and leads people to hazard their substance on a mere chance." I can see nothing about the pinball machines described by the indictment herein that would arouse the gambling spirit and lead people to hazard their substance on the mere chance of winning a prize. It seems to me that the amusement factor predominates the machine described by the indictment herein. The mere fact that there is an element of chance incident to its *Page 456 operation is not alone sufficient to render the property contraband, incapable of protection against seizure, and to brand as criminals the one who operates it and the proprietor on whose premises it is situated. It seems to me that the legalistic reasoning of the majority opinion and the cases upon which it relies carry the court far beyond reasonable interpretation of the legislative intent and commit this court to a doctrine which might place in jeopardy many enterprises which, under any rational view of the law, should be considered proper and legitimate. I would affirm this case.
STIGER and SAGER, JJ., join in this dissent.