LOTTERIES - GAMBLING - PINBALL MACHINES - PUNCHBOARDS - PULL TABS - CARDS - BINGO - AUTHORITY TO LICENSE - CITY - COUNTY

LOTTERIES - GAMBLING - PINBALL MACHINES - PUNCHBOARDS - PULL TABS - CARDS - BINGO - AUTHORITY TO LICENSE - CITY - COUNTY.

(1) The possession of (a) a multiple coin "bingo" type pinball machine, or (b) a punchboard or pull tab device each of which is more fully described in the body of this opinion is unlawful per se, under RCW 9.47.030 and 9.47.110, without extrinsic proof that the particular machine or device is being operated for the winning or losing of money or property.

(2) The games of poker, rummy, pinochle, cribbage, or panguingue, and similar card games, when played for either limited or unlimited stakes in an establishment which is paid either a fixed amount per hour or per hand by the players, violate RCW 9.47.010 and 9.47.020. 

(3) The game of bingo, when played for a money or merchandise prize by persons who have paid a valuable consideration to play, constitutes an illegal lottery under the provisions of RCW 9.59.010.           

(4) The fact that an illegal gambling game or lottery is conducted by a charitable, religious or fraternal organization, with all proceeds to be devoted to the purposes of the organization, does not constitute a defense to criminal liability.

(5) A city or county may not license and thereby permit the possession or operation of any gambling game or device which is violative of any state statute.

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                                                                   April 30, 1969

Honorable Joel M. Pritchard
State Senator, 36th District
Legislative Building
Olympia, Washington 98501

Honorable R. Ted Bottiger
State Representative, 29th District
Legislative Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1969 No. 9

Gentlemen:

            This is written in response to your request for an opinion of this office on several questions relating to the antigambling statutes of this state.  We paraphrase your questions  [[Orig. Op. Page 2]] as follows:

            (1) Is the possession of (a) a multiple coin "bingo" type pinball machine, or (b) a punchboard or pull tab as you have described each of these devices unlawfulper se, under RCW 9.47.030 and 9.47.110, without extrinsic proof that the particular machine or device is being operated for the winning or losing of money or property?

            (2) Do the games of poker, rummy, pinochle, cribbage, or panguingue, and similar card games, when played for either limited or unlimited stakes in an establishment which is paid either a fixed amount per hour or per hand by the players, violate RCW 9.47.010 and 9.47.020?

            (3) Does the game of bingo, when played for a money or merchandise prize by persons who have paid a valuable consideration to play, constitute an illegal lottery under the provisions of RCW 9.59.010?

            (4) Does the fact that a gambling game or lottery is conducted by a charitable, religious or fraternal organization, with all proceeds to be devoted to the purposes of the organization, constitute a defense to criminal liability?

            (5) May a city or county license and thereby permit the possession or operation of any of the gambling games or devices which are violative of the foregoing statutes?

            We answer questions (1) (a), (1) (b), (2) and (3) in the affirmative, and questions (4) and (5) in the negative, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Question (1):  Introduction.

            Our consideration of your first question will be divided into parts (a) and (b) relating, respectively, to multiple coin "bingo" type pinball machines and to punchboards and pull tabs.  The statutes involved are RCW 9.47.030 and 9.47.110, which provide as follows:

            RCW 9.47.030:

            "Every person who shall have in his possession or shall permit to be placed or kept in any  [[Orig. Op. Page 3]] building or boat, or part thereof, owned, leased or occupied by him, any table, slot machine, or any other article, device or apparatus of a kind commonly used for gambling, or operated for the losing or winning of any money or property, or any representative of either, upon any chance or uncertain or contingent event, shall be guilty of a gross misdemeanor."  (Emphasis supplied.)

            RCW 9.47.110:

            "Seizure and disposition of gambling devices.  It shall be the duty of all peace officers to search for and seize all tables, slot machines,or other article, machine, device or apparatus of the kind commonly used for gambling, or operated for the winning or losing of money or property, or any representative of either, upon any chance or uncertain or contingent event, and all property useful in the operation or maintenance of a bucket shop, and take the same before a magistrate.  If in the judgment of such magistrate any of such articles may be useful as evidence in the trial of any case, he may order the same held for such trial or delivered to the prosecuting attorney; otherwise, he shall order the same to be forthwith destroyed.  After the final hearing and disposition of any case in which any of said articles may be held or used as evidence, whether such case result in a conviction or acquittal, the magistrate or judge having jurisdiction of such case shall forthwith order all such articles destroyed."  (Emphasis supplied.)

            The first point to be noted from a reading of these two statutes is that the terms "pinball machine," "punchboard" or "pull tab" do not expressly appear therein.  However, this by no means excludes such devices from the coverage of these statutes; rather, it merely means that if a prosecution is to be based upon the possession of one of these machines or devices, the charge must go beyond a simple mention of the article by name.  In the case of such a prosecution, according to the ruling of our state supreme court in State v. Parent, 156 Wash. 604, 287 Pac. 662 (1930),

            ". . . the charge must go further and show that the device possessed is of the kind prohibited. . . ."

             [[Orig. Op. Page 4]]   The second preliminary point to be noted relates to the grammatical similarity between these statutes and RCW 9.47.010 (pertaining to the operation of gambling games rather than as here their possession).  RCW 9.47.010 reads as follows:

            "Every person who shall open, conduct, carry on or operate, whether as owner, manager, agent, dealer, clerk, or employee, and whether for hire or not, any gambling game or game of chance, played with cards, dice, or any other device, [or any scheme or device whereby any money or property or any representative of either, may be bet, wagered or hazarded upon any chance, or any uncertain or contingent event,] shall be a common gambler, and shall be punished by imprisonment in the state penitentiary for not more than five years."

            We have bracketed the alternative clause of this statute in the same manner as did the Washington court in State v. Robey, 74 Wash. 562, 134 Pac. 174 (1913), when it held that it is unnecessary to allege that any money or property was bet in order to charge a violation if the game specified in the information comes within the first (unbracketed) clause of the statute.  In so holding, the court expressed itself as follows (at p. 564):

            "The principal contention is that the facts set forth in the information do not constitute a crime.  This argument is predicated upon the fact that the information does not expressly charge that money was bet, wagered or hazarded 'upon any chance or any uncertain or contingent event.'  This was not necessary.  The statute clearly divides itself into two parts.  Correctly interpreted, it means, (a) that every person who conducts or operates the games mentioned in the section preceding the words set forth in brackets shall be a common gambler; and (b) that every person shall be a common gambler who conducts or operates any 'scheme or device' forbidden in the language contained in brackets.  We do not think the statute is susceptible of any other reasonable interpretation.  If this were not true, the charge that the appellant as owner conducted a poker game played with cards for checks as  [[Orig. Op. Page 5]] representatives of value so clearly shows a game of chance, and a hazarding upon an uncertain or contingent event, that a demurrer would not lie; for playing poker for money is a game of chance.  The words set forth in brackets were no doubt used out of abundant caution to cover unusual forms of gambling."  (Emphasis supplied.)

            Likewise with RCW 9.47.030 and 9.47.110, the statutes are divided into two parts.  After expressly referring to any "table" or "slot machine," both statutes then speak,in the alternative, of the possession of any other article, device or apparatus

            [1] ". . . of a kind commonly used for gambling, . . ." or

            [2] ". . . operated for the losing or winning of any money or property, or any representative of either, . . ."

            This structuring of the statutes seems very definitely to have been understood by the court in the recent case of Waring v. Lobdell, 63 Wn.2d 532, 387 P.2d 979 (1964), a contract case.  At issue was the question of whether the relief sought by the plaintiff was based on a contract to engage in a pinball business and therefore, was unenforceable as in aid of an unlawful transaction.  The trial court had not considered this point, and the supreme court remanded with the following instruction:

            ". . . If it is determined that the machines are gambling devices,or operated as such within the purview of RCW 9.47 [[chapter 9.47 RCW]]or the Washington State Conpurview of RCW 9.47 or the Washington State Constitution, Art. 2, § 24, then this action should be dismissed. . . ." (Emphasis supplied.)1/

             Your opening question asks whether the first of these alternative statutory tests as to what constitutes an illegal gambling device i.e., the test of what we may call a "gambling deviceper se" is met by the particular types of machines or apparatus to which you have referred.

            Question (1) (a):  Multiple coin "bingo" type pinball machines.

            As described by you in your letter the operational and  [[Orig. Op. Page 6]] mechanical features of these machines are as follows:

            "To operate these machines the player deposits a coin which releases five balls for play.  The balls are propelled by a plunger onto a playing field which contains a number of pegs and bumpers and a series of numbered holes.  When a ball falls into a hole, a corresponding number on a bingo-type card on the backboard of the machine is lighted.  The object of the game is to light three, four or five numbers in a line on the bingo card.  When three or more numbers in a line are lighted the machine registers free plays on a three digit counter located on the backboard.  The number of free plays which are awarded, as well as the number of possible winning combinations, may be increased by depositing additional coins after the first, although the rate of increase is controlled only by the machine and may or may not increase by the deposit of a particular coin.  Free plays may be used for further operations of the machine by pressing a button on the front of the machine.  In addition, free plays may be removed from the machine without playing them by operating a switch on the bottom of the machine.  When this switch is operated the free plays are removed from the counter on the backboard but are recorded on a meter located inside the machine.  These machines also may contain a device which automatically increases or decreases the difficulty of winning free plays, depending on the success or failure of the player in past operations of the machine."

            Before proceeding further, we shall digress, briefly, to consider the developmental history of coin-operated gambling machines for we believe that some understanding of their history is essential to place the type of machine with which we are dealing in proper context.1/   The first coin-operated  [[Orig. Op. Page 7]] gambling machine was invented before the turn of the century.  It featured three reels adorned with oranges, lemons, bells and bars; was operated by depositing a coin and manually pulling a lever; and quickly became known as the "slot machine" or "one armed bandit."  The importance of this invention to the gambling industry cannot be overstated.  For the first time, professional gambling was possible without the "house" having to have a person actually present to protect its interests while the gambling was being conducted.  The machines could profitably operate on very small wagers, and for the first time, gambling could be conducted in any place where people congregated, without the tremendous overhead previously required.

            However, these early machines soon ran afoul of constitutional and statutory antilottery provisions,2/ and their manufacturers countered by developing countless variations to conceal their essential nature.  The factor of a prize was most often concealed.  Slot machines which returned tokens or trade checks instead of cash appeared.3/ A mint vendor was attached to one version so that the player "won" something (a mint) on every play.4/   Another variation merely indicated how much a person had won, requiring him to insert a second coin to receive his  [[Orig. Op. Page 8]] winnings.5/   Sometimes the machines paid winnings in merchandise,6/ or (during World War II) in ration tokens.7/   Machines also appeared which were not coin operated at all, but required payment to the location owner who then automated the machine mechanically or electronically.8/

             Such subterfuges were not generally successful, and by the 1930's, slot machines were becoming a dying industry.  Then, however, the most successful modification of all was developed.  The ancient parlor game of bagatelle was modified into what became known as the "pinball" machine.  In the early machines, a single ball was shot into a playing field covered with numbered holes.  If the ball fell into a numbered hole which corresponded to a lighted number on the backboard, the player had won and the machine returned the winnings to the player directly through a slot on the machine.

            At the outset of their development, these machines were single coin machines the player would deposit one coin, and one coin only, per play.  However, later versions were equipped with an apparatus known as a "search relay unit."  With this mechanism, it was still possible for a player to play the game upon inserting a single coin, if he desired to do so; however, by means of this unit, he could, instead, deposit additional coins before playing, and thereby increase both the stake for which the game ultimately was played and the number of possible winning combinations.  The unit operated in precisely the same manner as the three reels on a slot machine, and remains an integral component of the type of pinball machine which we are considering in this opinion as we will note in more detail shortly.

             [[Orig. Op. Page 9]]

            This modern five ball "in line" or "bingo" type game was developed as machines of the one ball variety began to meet judicial disapproval.9/   Aside from the more sophisticated five ball game which is played on these machines, the principal difference between them and the earlier versions is the elimination of the automatic pay-off apparatus.  Instead, these modern machines as you have described them are equipped with mechanisms commonly referred to as the "three digit counter" and the "knock-off" circuit, which function as follows:

            The Three Digit Counter:

            This device on the backboard of the machine records the number of "free plays" which have been won by the player.  On some current models, we understand that it is possible to win up to 600 free games on one operation of the machine and to accumulate free games up to a total of 999.

            The "Knock-Off" Circuit:

            This device allows unplayed "free games" to be "knocked off" i.e., subtracted from the number appearing on the three digit counter by means of triggering a concealed button or switch.  Simultaneously, the games removed are recorded on a meter locked inside the machine.10/

             In addition as previously noted the type of machine which we are now considering continues to be equipped with the multiple coin "search relay" unit feature by which a player may increase the stake and number of possible winning combinations through the deposit of additional coins before playing.

             [[Orig. Op. Page 10]]

            The operation of this mechanism on this type of machine may be illustrated as follows:  On depositing the first coin in a current bingo model, the player will win four free games for lighting three numbers in a row, sixteen free games for four in a row, and seventy-five free games for five in a row.  Depositing additional coinsmay increase the number of free games which can be won to a maximum, on current models, of 192 free games for three in a row, 480 games for four in a row, and 600 games for five in a row although the rate of increase is controlled solely by the search relay unit, and may or may not increase by the deposit of any particular coin.11/

             In connection with the search relay unit, these machines are often equipped, as well, with what is referred to as a "reflex" unit, which automatically adjusts the difficulty of winning free games, depending on the immediate past record of the machine.12/   After a period of successful play, the reflex unit will automatically adjust the search relay unit to reduce the chance of increasing the stakes with each coin, and conversely, after a period of unsuccessful play, it will make it progressively easier to increase the stakes with each coin.

            This, then, is the type of machine with which we are concerned in this opinion of which you ask:  Is the possession of one of such a machine unlawful per se, under RCW 9.42.030 and 9.47.110, supra, without extrinsic proof that the particular machine is being operated for the winning or losing of money?  In answering this question, we shall look both to the pertinent decisions of the Washington supreme court and to those of other jurisdictions which have dealt with coin operated gambling devices.

            (a)The Washington cases:

            The first Washington decision to be noted is Dwyer & Co. v. Seattle, 116 Wash. 449, 199 Pac. 720 (1921).  This case involved the status under the gambling statutes of a coin  [[Orig. Op. Page 11]] operated vending machine which, when a five cent piece was deposited, dispensed tickets which were redeemable for one cent postcards.  Some of the tickets were also redeemable for more valuable merchandise such as cameras or pipes.  Holding the machine to be an illegal gambling device, the court stated at page 452:

            "The facts . . . demonstrate beyond question that, in its practical operation, this ingenious device is intended to, and does, appeal to the gambling instinct or habit, and were there none inclined to take chances in the hope of getting 'something for nothing' there would be no tickets sold, and the machine would never be operated."

            By way of contrast, the court eight years later in D'Orio v. Jacobs, 151 Wash. 297, 275 Pac. 563 (1929) in holding that a punchboard checker game was not a gambling device or a lottery, observed that:

            ". . . This is not a device which appeals to the gambling spirit, or such as is likely to engage the interest of the young and inexperienced.  To us it would seem to appeal only to experienced checker players who may desire to pit their skill against the expert knowledge of the inventor of the device.  The prize seems inconsequential, as compared with the thrill of victory."

            From these two cases we may derive at least one form of a test to be applied in determining what is,per se, an illegal gambling device; namely, is the device one of a kind which is intended to, and does, appeal to the gambling instinct or habit?  InDwyer, this question was answered affirmatively, and the machine involved was held to be a gambling device whereas in D'Orio, at least partly because of a negative answer to this same question, the punchboard checker game was determined not to be a gambling device.  Manifestly, an affirmative answer is called for in the case of the machines with which we are presently dealing; however, since neither of these two early cases was a pinball case, they offer little further assistance in resolving the question at hand.

            Of much more significance is the next case in line Miller v. Spokane, 35 Wn.2d 113, 211 P.2d 165 (1949),supra in which our court was first called upon to determine whether certain pinball machines were gambling devices within the meaning of  [[Orig. Op. Page 12]] RCW 9.47.030, supra.  The court stated the question, and then set forth the stipulated facts, as follows:

            "Is a pinball machine a gambling device?

            "It was stipulated during the trial that certain facts as alleged in the city's affirmative defense were true.  That defense was as follows:

            "'The cabinets of said pinball machines have a flat horizontal top in the shape of a rectangular table, mounted upon a base, with one end of the table at a lower elevation than the other.  The game is played on the top of said table by the use of a plunger which propels a metal ball to the top of said table, from which point the ball rolls to the lower end unless it falls into one of a number of holes in the surface of said table.  There are four series of holes, numbered from 1 to 7, inclusive, which numbers correspond to numbers lighted on a backboard set above the high end of the table.  The game is played by placing a nickel in a coin slot which causes a metal ball to drop into a receptacle from which receptacle it may be elevated to the playing surface of the board by the player, so that the ball is in a channel which extends the length of the right-hand side of said table and directly in front of the plunger.  The insertion of the coin also causes one or several numbers of the backboard to light, and the object of the game is then for the player to put the metal ball into one of the holes on the table which corresponds with a number or numbers which may be lighted on the backboard.  The insertion of the coin also indicates the odds which the player will receive in the event he is successful in putting the ball into a proper hole.  The ball is shot by pulling the plunger back along a scale, marked by degrees, and then releasing the plunger.  The distance from the ball at which the plunger is released determines the speed which the ball will have when propelled from the channel on the playing surface  [[Orig. Op. Page 13]] on the table.  In addition to the holes on said table, there are metal springs and pins at various places between the holes.  If the player is successful in lodging the ball in a hole which corresponds to one of the numbers lighted on the backboard, the machine automatically returns to him the number of nickels shown in the list of odds on the backboard, and, if not successful in lodging the ball in one of said holes, he receives nothing.'

            "It was further agreed in open court as follows:

            "'. . . that said machines are so constructed that the lighted numbers on the back-board are determined and automatically lighted by the machine and the player has no choice in the selection thereof on the first coin but ultimately he may obtain the number which he desires to select by inserting additional coins until such number appears.  Likewise, the odds which will be paid if the player is successful are automatically determined by the machine without any choice on the part of the player and all odds except the minimum odds to be paid are selected automatically by the machine.  Said machines are so constructed that the pitch of the incline of the playing surface can be adjusted by the person having control of the machine but not the player, which pitch determines the speed of the ball as it travels downward over the playing surface.'"

            With this factual description of the particular machines in mind, the court then discussed a number of cases in which the courts of many other states had declared various types of pinball machines to be gambling devices, including the cases ofState ex rel. Dussault v. Kilburn, 111 Mont. 400, 109 P.2d 1108 (1941), andState v. Coats, 158 Ore. 122, 74 P.2d  [[Orig. Op. Page 14]] 1102 (1938).13/   Thereupon, the court concluded as follows:

            "Based upon these cases, we hold that the pinball machines named in the Spokane ordinance were gambling devices within the meaning of Rem. Rev. Stat., § 2472, and, as such, could not be legalized by either the city commissioners of the city of Spokane, or the people of that city acting in a legislative capacity."

            Rem. Rev. Stat. § 2472, upon which this decision was based, is the same statute as is now codified as RCW 9.47.030, supra.  In terms of the comparability of the machines involved in this case and those with which we are now concerned, it is, first, perfectly clear to us that no legal significance should be attached to the fact that the machines in Miller were of the one ball "race horse" variety,14/ rather than our present five ball "bingo" type.

            Like the present machines, the court's description of the Miller machines indicates that they were multiple coin devices equipped with a search relay unit (and, possibly, accompanying reflex unit) whereby a player, by depositing additional coins before playing, could increase the stakes and odds of winning for which the game was ultimately played.  However, no three digit counter or knock-off circuit was contained on these machines, since (unlike the present ones) they were  [[Orig. Op. Page 15]] equipped to pay off automatically; thus, these two devices would have served no purpose.  Whether or notthis distinction is of any legal significance is, of course, the critical issue to be determined in answering your immediate question.

            Since the time of theMiller case, pinball machines have been involved in only two other Washington decisions; Waring v. Lobdell, supra, in which recognition was made of the alternative tests of what constitutes a gambling device,15/ andBrower v. Johnson, 56 Wn.2d 321, 352 P.2d 814 (1960), which was also a contract enforcement case.  InBrower, the court, in an action for adjudication of private rights under a partnership agreement, was confronted with the question of whether theoperation of certain pinball machines was unlawful under RCW 9.47.010 (quoted above, in connection with our discussion ofState v. Robey, 74 Wash. 562, 134 Pac. 174 (1913)), so as to render the business of the partnership illegal.  Unlike the machines which were involved in the Miller case, these machines were not equipped with any automatic pay-off mechanism.  Instead, according to testimony in the record, the procedure followed with respect to these machines was as follows:

            ". . . appellant testified that, although the machines did not contain an automatic pay-off device, they did contain a numbering device or meter.  This meter indicated the number of 'free games' won by a person playing the machines, and on this basis 'over the counter' pay-off was made in each instance by the proprietors of the establishments in which the machines were placed. . . ."

            Based upon this reported testimony (which had been rejected  [[Orig. Op. Page 16]] by the trial court because of its doubt as to its materiality), the supreme court remanded the case for a new trial, saying:

            ". . . We have no hesitancy in holding that, if the appellant's testimony respecting the pinball machine operation engaged in by the Grays Harbor Amusement Company is true, then the business of that partnership is clearly illegal."

            In so holding, the court expressly rejected the contention that itsMiller v. Spokane ruling was to be limited to machines which were equipped with automatic pay-off mechanisms.  Instead, it at least broadened this ruling to include "free game" meter machines (presumably, these machines also were equipped with the standard "knock-off" device, search relay unit and, perhaps, reflex unit as well) used in connection with a gambling operation.  Thereby, coupled with its decision in Waring v. Lobdell, supra, four years later, the court established a firm foundation for a clear holding, in a proper case, that pinball machines of the type we are considering are gambling devices, per se under RCW 9.47.030 and 9.47.110 just as much as were the automatic pay-off machines in the Miller case.  With this in mind, we turn, now, to several significant cases from other jurisdictions.

            (b)The Cases from Other States:

            Many other states have enacted "possession" statutes which are quite similar to ours, and numerous court decisions may be found considering the application of these statutes to pinball machines of the same general type as you have described.  Most of these cases may be found in an exhaustive annotation in 89 A.L.R.2d at p. 815, entitled "Coin-operated pinball machine or similar device, played for amusement only or confining reward to privilege of free replays, as prohibited or permitted by antigambling laws."

            Some of the included cases involve the application of statutes which (like the first part of ours) prohibit the possession of any device or machine "of a kind commonly used" (or "designed," or "adapted," which are the words used in some statutes) for gambling, while others are concerned with statutes which (like the second part of ours) only prohibit machines which are actually operated for the winning or losing of money or its equivalent.  The most controversial question in this second  [[Orig. Op. Page 17]] category of cases is whether the "free games" which a person playing one of these machines may win are, themselves, property, or things of value within the meaning of such statutes a question upon which there appears to be a split of authority with the modern trend being toward the view that "the privilege of free replays is a 'thing of value.'"  See, 89 A.L.R.2d 839.  Because of the scope of your question, we do not reach that issue here.  However, if in a particular case it were to become necessary to prove the winning or losing of ". . . money or property, or any representative of either . . ." under the second test contained in RCW 9.47.030 and 9.47.110,supra, ample affirmative authority exists in the cases discussed in this annotation.16/

             Among the cases which have simply asked and answered the question of whether the type of pinball machine under consideration was,per se (without regard to actual operation), an illegal gambling device, the Iowa case of State v. Doe, 242 Iowa 458, 46 N.W.2d 541 (1951), represents a good beginning point for study.  This case involved a one ball "race horse" type of multiple coin machine which was identical in every respect save for the substitution of a three digit counter and "knock-off" circuit for the automatic pay-off mechanism to the machine which was held to be a gambling device by the Washington court in Miller v. Spokane, supra.  Under a statute declaring it unlawful to possess or control "any punchboard or other machine used for gambling,"17/ the Iowa court held the defendants' possession of the machine to be illegalper se, saying:

            "Section 726.5 of the Code forbids the possession of gambling devices.  State v. Boland, Iowa, 41 N.W.2d 727, 729, states:

            "[5] 'A gambling device is any instrument adapted and designed to play any game of chance for money or other thing of value.'

            "The decision quotes with approval a statement in 38 C.J.S., Gaming, § 78, p. 133; '* * * the test is not whether the devices are capable  [[Orig. Op. Page 18]] of being used purely for amusement or nongambling purposes, but whether their reasonably intended use is for gambling * * *.'

            "[6, 7] Various decisions have referred to the ingenuity exercised in the invention of devices designed to circumvent laws for the suppression of gambling and have pointed out that the courts have not allowed such fruits of inventive genius to accomplish their design.  The courts generally look behind the name and style of the device and examine the substance of the game, under whatever guise it is conducted."

            Another notable case, because it involved a seizure of the machines under a statute much like our RCW 9.47.110, supra, is the Colorado case of Gambling Devices v. People, 110 Colo. 82, 130 P.2d 920 (1942).  The applicable statute prohibited ". . . gambling devices of any nature or kind, used or kept for the purpose of gambling or playing at any game of chance; . . ."18/   The pinball machines at issue were brand new and had never been used for any purpose.  In discussing whether such devices were "used or kept for the purpose of gambling" the court quoted fromStanley-Thompson Co. v. People, 63 Colo. 456, 168 Pac. 750 (1917), as follows:

            "'We regard the words "used or kept," not as describing the status of the devices as to use or otherwise at the time of seizure, but as descriptive of a class composed of things which are commonly used or kept for gambling.

            "'If an instrument falls within that class, it is subject to the statute.'"

            Thereupon, the court held the machines which were before it to be prohibited gambling devices under the statute, saying:

            "[9, 10] An effort was made here to avoid the  [[Orig. Op. Page 19]] holding of the Stanley-Thompson case by showing that the 'pinball' machines - most of the machines seized were of this class -were so constructed that a release of a simple gadget in the back of them would make it impossible to play the machines for anything but amusement -a switch to turn the sin on or off, so to speak.  But the flaw in this argument is that at the time the machines were seized and demonstrated in court they were set to function for gambling purposes.  The test was not whether there was a possibility of their being used for amusement purposes, but their reasonably intended use and their inherent tendency to stimulate the gambling instinct latent in many people.  These pinball machines are gambling devices, and held to be so by a majority of courts.  See 135 A.L.R. 149; Walker v. Begole, 99 Colo. 471, 63 P.2d 1224."

            In Michigan, where the applicable statute prohibited devices "used for gaming,"19/ the court inOatman v. Port Huron Chief of Police, 310 Mich. 57, 16 N.W.2d 665 (1944), concluded that free game pinball machines were gambling devices even though there was no proof that the free games were paid off.  Discussing the absence of proof of pay off, the court stated that this factor

            ". . . does not alter the character of the machine one iota.  It is an apparatus ordinarily used for gambling, a gaming device.  There is nothing to stop the proprietor of any establishment where the machine is in operation from turning the luck from free plays to cash as ordinarily occurs in the use of such machines."

            The Pennsylvania case ofIn re Trombetta, 188 Pa. Super. 480, 149 A.2d 483 (1959), aff'd per curiam 397 Pa. 430, 156 A.2d 107 (1959), is significant because it involved the identical five ball, multiple coin "bingo" type machines with which we are presently dealing.  The court's statement of facts  [[Orig. Op. Page 20]] contains an even more detailed description of the operational features of these machines than we have set forth in this opinion but suffice it to say that the machines were equipped with each of the devices (three digit counter, knock-off circuit, search relay unit, and reflex unit) which we have earlier described herein.

            Holding these machines to be gambling devices per se without extrinsic proof of any pay offs (even though the statute involved appeared to apply only to machinesused for gambling20/ ), the court first commented that:

            ". . . There is a factual false pretense in the tacit appeal of these Bally machines; they pretend to be on the level, but they are nothing of the sort.  They are craftily designed, artfully constructed, and ingeniously deceptive in their appeal, and in our opinion clearly are gambling devices per se."21/

             Then, the court went on to express the test which appears to have been the basis for its decision, as follows:

            ". . . we have held Commonwealth v. Kaiser, 80 Pa. Super. 26) that 'When the nature of the machine is shown to be such as fits them solely for an unlawful purpose, they become, in the language of some of the courts of other states "outlaws"' and as such are subject to confiscation and destruction under the above section of the 1860 Act.  Cf. also, § 604 of the 1939 Code, 18 P.S. § 4604."

            Various courts have emphasized the importance of different  [[Orig. Op. Page 21]] features of particular pinball machines in holding the machines to be gambling devices.  For example, inSzybski v. United States, 220 F. Supp. 806 (E.D. Wis., 1963), the large number of "free games" which could be won on the machines in question was taken as an indication that their essential purpose was gambling.  The court said, in this regard:

            ". . . the number of free games obtainable was so great that to assume that they were the sole reward for proficiency on the machines would have been unrealistic. . . ."22/

             Similarly, the search relay unit (which allows the player to vary the odds by depositing additional coins) has been mentioned as indicating that the device is intended for gambling.23/   InIn re Trombetta, supra, the court stated:

            ". . . There can be no reward in terms of amusement from the mere insertion of coins into an unresponsive machine.  If free games are all that can be won it is difficult to understand why there should be a difference in price charged for playing the machine.  One cannot possibly get more amusement merely out of depositing 25 cents or even 10 cents, instead of 5 cents, in the same type of machine if the reward is the same in all of them. . . ."

            In the same case, the Pennsylvania court also made note of the reflex unit, which varies the difficulty of winning based upon the immediate past record of the machine as did the Wisconsin court in State v. Jaskie, 245 Wis. 398, 14 N.W.2d 148 (1944).

            As for the knock-off circuit (and inside meter) by which free games not played are removed from, and simultaneously recorded within, the machine; see,United States v. One Bally "BarrelO-Fun  [[Orig. Op. Page 22]] Coin-Operated Gambling Device," 224 F.Supp. 794 (D. Pa. 1963), aff'd. per curiamBrozzetti v. Rogers, 337 F.2d 857 (3rd Cir. 1964), where, commenting on the presence of these features, the court said:

            ". . . leads inescapably to the conclusion that they were designed and constructed in such a way that they might entitle the person playing them to receive some cash, premiums, merchandise or tokens.  The machine itself is designed to conduct or control a gambling transaction with its patrons."24/

             In short, these last noted mechanisms (together with the external "free game" meter) are, in effect and design, total substitutes for the old-fashioned automatic pay-off device with which the machines inMiller v. Spokane, supra, were equipped.  They can be said to serve no other purpose than to facilitate use of the machines for gambling.25/

             [[Orig. Op. Page 23]]

            (c) Conclusion:

            From the cases which we have examined, two tests of what constitutes a gambling device,per se (i.e., under our statutes, a device "of a kind commonly used for gambling") may be derived.  Under the Washington cases,Dwyer and Co. v. Seattle, supra, and D'Orio v. Jacobs, supra, the question to be asked appears to be:

            Is the device one of a kind which is intended to, and does, appeal to the gambling instinct or habit?

            Under the pinball machine cases from other states, the most often applied test asks:

            Is the device so designed and equipped as to render it of practical utility only as a device to be used for gambling?

            The application of either of these tests leads us to the same conclusion with respect to the legal status of multiple coin five ball "bingo" type pinball machines such as you have described; i.e., these machines (just as clearly as were the automatic pay-off machines in Miller v. Spokane, supra) are devices "of a kind commonly used for gambling" and thus are unlawful gambling devices under RCW 9.47.030 and 9.47.110, supra.  We have no doubt that they are designed to and in fact do appeal to the gambling instinct.  The many features which these machines contain and which we have discussed clearly show that their intended purpose is gambling.26/

             [[Orig. Op. Page 24]]

            Question (1) (b):  Punchboards and Pull Tabs.

            The second part of your first question asks the same question as to punchboards or pull tabs as the first part poses with respect to the type of pinball machines therein considered; i.e., is possession of these articles unlawfulper se, under RCW 9.47.030 and 9.47.110, without extrinsic proof of any pay offs.  You have described these devices as follows:

            "To operate these devices the person pays a price to punch or pull a small tab from the board.  The tab contains a number or symbol which, if it corresponds to a list of numbers or symbols on the board, entitles the player to a prize, either in cash or merchandise."

            The significant point to be noted with regard to this description is that it excludes the special kind of game which was before the court in D'Orio v. Jacobs, supra i.e., the punchboard checker game case.  There, unlike here, the tab simply entitled the player to attempt to solve a checker problem and thus, said the court, the game was not a gambling device because:

            ". . . This is not a device which appeals to the gambling spirit, or such as is likely to engage the interest of the young and inexperienced.  To us it would seem to appeal only to experienced checker players who may desire to pit their skill against the expert knowledge of the inventor of the device.  The prize seems inconsequential, as compared with the thrill of victory."  (151 Wash. 297, 302.)

            Conversely here, both this Washington court test27/ and the "essential use and design" test which we derived from the pinball cases discussed above are present.  As the Michigan court inPeople v. Lippert, 304 Mich. 685, 8 N.W.2d 880 (1943), in considering a standard punchboard, stated:

            "The record fully establishes that the punchboards were intended only to be used for gambling purposes and had no other practical  [[Orig. Op. Page 25]] use.  It might be conceived that these punchboards might be used to kindle a fire or as playthings for the baby; however, the only sensible conclusion must be that these punchboards were for gambling use only, and were gambling devices per se."28/

             As is further readily apparent, the operation of a punchboard or pull tab such as you have described presents all three elements of a lottery consideration, chance and prize.  See, State v. Village of Garden City, 74 Ida. 513, 265 P.2d 328 (1953);State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553, 163 A.L.R. 1279 (1946); cf.,State ex rel. Evans v. Brotherhood Etc., supra.  Accordingly, we have no hesitation in concluding that these devices like the pinball machines considered in part (a) of this question are gambling devices,per se, under RCW 9.47.030 and 9.47.110, supra.

            Question (2):  Card games.

            Your next question is whether card games such as poker, rummy, pinochle, cribbage or panguingue, when played for either limited or unlimited stakes in an establishment which receives either a fixed amount per hour or per hand from the players are in violation of RCW 9.47.010 and 9.47.020.  We answer this question, as well, in the affirmative.

            For ease of reference we set forth these two statutes as follows:

            RCW 9.47.010:

            "Every person who shall open, conduct, carry on or operate, whether as owner, manager, agent, dealer, clerk, or employee, and whether for hire or not, anygambling game or game of chance played with cards, dice, or any other device, or any scheme or device whereby any money or property or any representative of either, may be bet wagered or hazarded upon any chance, or any uncertain or contingent event, shall be a  [[Orig. Op. Page 26]] common gambler, and shall be punished by imprisonment in the state penitentiary for not more than five years."  (Emphasis supplied.)

            RCW 9.47.020:

            "Every person who shall bet, wager or hazard any money or property, or any representative of either, uponany game, scheme or device, opened, conducted,carried on or operated in violation of RCW 9.47.010 shall be guilty of a misdemeanor."  (Emphasis supplied.)

            We have already seen that poker, when played under the circumstances described in your question, is an illegal gambling game.  State v. Robey, supra (discussing the alternative forms of charging a violation of RCW 9.47.010).  See, also,State v. Adams, 181 Wash. 222, 43 P.2d 1 (1935).  This we take to be true irrespective of whether this card game is characterized as a game of chance (as in the Robey case) or as a game of skill, as it was by the Oregon supreme court inState v. Coats, supra.  The following excerpt from this Oregon case was quoted with approval by the Washington court inState ex rel. Evans v. Brotherhood Etc., supra:

            "'. . . A lottery is a scheme or plan, as distinguished from a game where some substantial element of skill or judgment is involved.  Poker, when played for money, is a gambling game but, since it involves a substantion [sic] [[substantial]]amount of skill and judgment, it cannot be reasonably contended that it is a lottery. . . ."

            In other words for the purposes of RCW 9.47.010 and 9.47.020,supra, no distinction is to be drawn between a card game of chance and one requiring even a substantial amount of skill (e.g., at least certain forms of poker, as well as rummy, pinochle or cribbage).  All of these games must be regarded to be illegal gambling games if played in violation of these statutes.

            It has been held by our court that a person violates the first of these statutes, RCW 9.47.010, only if he "opens, conducts, carries on or operates" a gambling game as an "owner, manager, agent, dealer, clerk or employee."  See,State v. Hardwick, 63 Wash. 35, 114 Pac. 873 (1911);State v. Makis, 155 Wash.  [[Orig. Op. Page 27]] 164, 283 Pac. 680 (1930); and State v. Manolis, 127 Wash. 597, 221 Pac. 326 (1923).

            However, as was held in the last of these three cases, it is not necessary that the game proscribed must be operated for the direct profit of the owner or manager of the establishment in order for the statute to be violated.  On this point, the court said:

            "It is enough, we think, to show that he operated it as owner or manager.  The object of the statute is to suppress gambling resorts and to punish those who maintain them.  Clearly, the showing is that Manolis maintained the place and maintained therein games in the manner which the statute prohibits.  He was, therefore, the common gambler which the statute was intended to punish.  State v. Preston, 49 Wash. 298, 95 Pac. 82; State v. Burns, 54 Wash. 113, 102 Pac. 886;State v. Gaasch, 56 Wash. 381, 105 Pac. 817; State v. Hardwick, 63 Wash. 35, 114 Pac. 873; State v. Robey, 74 Wash. 562, 134 Pac. 174."

            TheManolis case is also pertinent with regard to whether a "limited stake" game is, somehow, outside of the statutory prohibition; on this issue, the court expressed itself as follows:

            ". . . The thing aimed at by the statute [RCW 9.47.010,supra] is the maintenance of the resort, not the value of the stakes which may be wagered on the games conducted therein."  (Emphasis supplied.)29/

             Question (3):  Bingo:

            With this question, we move from the antigambling statutes which are found in chapter 9.47 RCW to the antilottery statutes  [[Orig. Op. Page 28]] in chapter 9.59 RCW.30/   We have previously alluded to the three requisite elements of a lottery prize, consideration and chance as stated by the Washington court in State ex rel. Evans v. Brotherhood, supra, and numerous other cases, the most recent of which is State ex rel. Schillberg v. Safeway Stores, Inc., 75 W.D.2d 351 [[75 Wn.2d 339]](1969).  The formal statutory definition of a lottery is spelled out in RCW 9.59.010, which reads as follows:

            "A lottery is a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance.

            "Every person who shall contrive, propose or draw a lottery, or shall assist in contriving, proposing or drawing a lottery, shall be punished by imprisonment in the state penitentiary for not more than five years, or by a fine of not more than one thousand dollars, or by both."

            Your question is whether the game of bingo, when played for a money or merchandise prize by persons who have paid a valuable consideration to play, violates this provision.

             [[Orig. Op. Page 29]]

            While this game is conducted under a myriad of names,31/ the basic operation is the same.  As described by the Ohio court inLoder v. City of Canton, 111 N.E.2d 793 (Ohio 1951), in which it was held to be a lottery in violation of the state constitution:

            "'Bingo is a game in which each player is given one or more cards which consists of various lettered numbers arranged in five rows and five columns, and the player wins who first gets a vertical, horizontal, or diagonal row of numbers to correspond with numbers that have been ascertained by mechanically selected numbered and lettered balls from a large glass box with a blower arrangement which blows the numbered balls within the glass box and one falls into a slot from which it is taken and the number and letter is called out by the operator of the blower.'"

            In addition to this decision, numerous other cases from other states may be found with similar holdings.  See, in general, 54 C.J.S., Lotteries, § 10, and cases cited therein.  We have no doubt that these decisions would be followed by the Washington court were the question you have asked to be presented to it in a proper case.  Cf.,State ex rel. Schillberg v. Safeway Stores, Inc., supra, in which the court recently held that a trade promotional game called "bonus bingo" was an unconstitutional and illegal lottery (i.e., in violation of both Article II, § 24 of the constitution and RCW 9.59.010, supra).  The prime issue in that case was whether the element of consideration was present, and the court had no difficulty in determining that the game, which involved a bingo format, was a game of chance.

            Therefore, in answer to this question, we conclude that the game of bingo (as above described) when played for a money or merchandise prize by persons who have paid a valuable consideration to play, is an illegal lottery under the provisions of RCW 9.59.010, et seq., supra.

             [[Orig. Op. Page 30]]

            Question (4):  Defenses

            Your next question is whether the fact that a gambling game or lottery is conducted by a charitable, religious or fraternal organization, with all proceeds to be devoted to the purposes of the organization, constitutes a defense to criminal liability.

            Our direct answer to this question is in the negative for the reason that nowhere in the antigambling or lottery statutes is there any provision presently excluding any gambling games or devices, or lotteries, from the criminal proscriptions contained in those statutes.

            Secondarily, because of the limitation upon the authority of the legislature which is set forth in Article II, § 24 of the Washington constitution,32/ any attempt to legalize those gambling games or devices which are also lotteries (e.g., bingo, punchboards, slot machines and certain pinball machines, etc.) would be unconstitutional.

            As was stated by the court in Seattle v. Chin Let, 19 Wash. 38, 52 Pac. 324 (1908) with respect to a law purporting to exclude any lottery conducted "for charitable purposes" from the prohibition of an earlier version of RCW 9.59.010

            ". . . We think that the constitutional provision admits of no exception in favor of lotteries for charitable purposes or for any other purpose."

            Similarly, inState ex rel. Evans v. Brotherhood, supra, the court invalidated an attempt by the 1937 legislature to legalize the use of slot machines in "clubs" a term which was defined by reference to the definition section of the 1933 Washington state liquor act (now codified as RCW 66.04.010) to mean

            ". . . an organization of persons, incorporated or unincorporated, operated solely for fraternal, benevolent, educational, athletic or social purposes, and not for pecuniary gain."

             [[Orig. Op. Page 31]]