UY HA, PETITIONER AND APPELLANT, VS. THE CITY MAYOR OF MANILA, ET AL., RESPONDENT. THE CITY OF MANILA, INTERVENOR AND APPELLANT.

On December 24, 1957, the Municipal Board of the City of Manila enacted
Ordinance No. 3941, which was approved by the mayor on January 3, 1958,
providing, among others, that “no license for the installation and/or
operation of machines and apparatus commonly known as ‘Pinball’
machines shall be granted under any circumstances.” Thereafter, the
mayor ordered the confiscation of all “pinball machines” which are
being used in violation of said ordinance within the city. Petitioner,
who was engaged in the business of operating “pinball machines” within
the city prior to the approval of said ordinance, applied for license
for the current year, but was refused, whereupon he filed the present
petition before the Court of First Instance of Manila seeking to enjoin
the enforcement of said ordinance on the ground that said “pinball
machines” are devised for amusement and not for gambling and so said
ordinance is invalid and unconstitutional.

On February 20,
1958, respondents filed their answer stating that the “pinball
machines” operated by petitioner are specially designed for gambling
and as such their operation is prohibited by law; that said ordinance
is not discriminatory; that “pinball machines” being designed for
gambling, the operation of which chiefly depending on chance, are a
constant temptation to young people in whom gambling may easily become
deep-rooted; and that “pinball machines” are deleterious to the moral,
economic and physical well-being of the people who indulge in them,
especially youngsters and schoolchildren, so that their operation may
be prohibited under Section 18 (kk) of Republic Act No. 409.

The City of Manila, which has a legal interest in the matter in
litigation, was allowed to intervene, and in its complaint it alleged
that petitioner had been engaged in the business of operating eight
“pinball machines” in the City of Manila from the first quarter of 1956
up to the present without first paying the annual license fee of
P300.00 for each machine in accordance with the provisions of Section
774 of the Revised Ordinance, as amended by Ordinance No. 3628, thereby
becoming indebted to the intervenor in the total sum of P4,620.00,
including the surcharge of 10% for non-payment. Petitioner answered
this complaint stating that he had already paid the corresponding fees
for his eight “pinball machines” for 1956 and the first half of 1957
and that tender of payment for the second half of 1957 was refused by
the intervenor. He also claims that Ordinance No. 3628 is null and void
as it is not merely regulatory but a revenue measure which is beyond
the power of the City of Manila to enact.

After trial, the
court rendered decision holding that “pinball machines” are gambling
devices and as such are proper subjects of the general welfare clause
of the city and that pinball machine joints cannot be considered places
of amusements within the purview of Republic Act 1224. However, it
denied the claim of intervenor for unpaid license fees on the ground
that “it is doubtful whether the increase of annual license fee from
P50.00 to P300.00 can be justified under its police power, or under
Section 18(1) of its Charter, neither of which authorizes the
imposition of a tax measure.”

Both petitioner and intervenor have appealed.

The issues posed by petitioner are: (1) Are “pinball machines” gambling
devices the operation of which is prohibited by law?; and (2) Is
Ordinance No. 3941 of the City of Manila valid and constitutional?

With regard to the first issue, we quote with approval the following observation of the trial court:

“Pinball
machines generally consists of a playing surface, containing obstacles
and apertures, upon which balls or marbles, obtained by inserting the
required coin in the slot, are propelled by various methods but
uniformly with the object of dropping such balls or marbles into
particular apertures designated as scoring or ‘pay-off’ holes (39 CJS
66). Dets. Cezar Zaballa and Numeriano Cortez upon order of the Chief
of the Detective Bureau conducted a three-day observation on the
operation of the one-ball pinball machine and found that the chance of
winning of a skilled player is 4.5% while that of a non-skilled player
is only 3.34% (Exhibit 6, pp. 1-4). They further observed that the
persons patronizing these joints are school children carrying books and
idle adults.

“The foregoing observation made with respect
to the non-flipper or one-ball type which are invariably played for
money is not radically different from the conditions obtaining in the
flipper or 5-ball type which were the object of ocular inspection.
During the ocular inspection, the Fiscal spent P0.60 without winning a
replay, while the presiding Judge spent P1.00 with only one replay. In
other words, for three games, P1.00 was lost. The result depends mainly
on chance or luck. The criterion is based not on the skilled player but
on the general public patronizing same. In the flipper type, the prize
is a chance at replay and the chances are enchanced in proportion to
the amount paid per game. Then, too, the replays one wins may be easily
converted into cash by the operator.

“Pinball machines have generally been held gambling devices (Howie vs. City of Birmingham, 159 So. 206, 229 Ala. 666; Stead vs. State, 72 S.W. 2nd 542, 189 Ark. 389; State vs. Wiley, 3 N.W. 2nd 620; State vs. Livingston, 196 A. 407; Hunter vs. Mayor & Council of Teneck Tp., 24 A. 2nd 553, 128 N. J. Law 164; People vs. Swartz, 25 N.E. 2nd 386, 282 N.Y. 596, and State vs. Coats, 74 P. 2nd 1102, 158 Or. 122.) In the case of State ex rel. Dussault, Co. Atty., et al vs.
Kilburn, 135 ALR 99, it has been held that “Under statute penalizing as
a misdemeanor operation of any game of chance played with any device of
money, checks, credit or any representatives of value, a pin-ball
machine in the operation of which a certain amount of skill could be
developed, but which as played by patronizing public was purely a game
of chance, and which paid off in trade checks, if metal ball shot from
spring or mechanical device fell into proper hole designated by lighted
number on back of machine which changed each time machine was played,
was a “gambling device” and building in which it was used was properly
enjoined as a “nuisance”. And in State ex rel. Green vs. One 54
Fifth Inning Base Ball Machines, 3 So. 2nd 27, 28, it has been held
that ‘A device which was termed a “fifth inning baseball machine” and
was operated by placing nickel in slot, which released certain balls
and by ejecting balls on board by pulling a plunger and striking
against the balls, which would then strike projections or bumpers on
the board, a higher score resulting by striking a certain number than
by striking others, was a “game of chance” subject to condemnation as a
“gambling device” under codal provisions relating to suppression of
gambling devices.’ The proper test as to whether a machine is a
gambling device is whether it encourages the gambling instinct (Dussault Caser Supra). Furthermore, ‘a machine which return merchandise of the value of the coin played therein and, in addition, a chance of receiving a varying amount of checks which may be used to
pay the machine for amusement only is a gambling device the right to
continue the operation of the machine for amusement being a thing of
value within statutes directed against gaming (State vs. Baitler, 131 Me 285, 161 A 671, citing RCL; Myers vs. Cincinnati, 128 Ohio St. 235,190 NE 569, citing RCL; Colbert Superior Confection Co. 154 Okla. 28, 6 P (2d) 791; Harvie vs. Heise, 150 SC 277, 148 SE 66 (appeal dismissed in 279 U.S. 824, 73 L ed 977, 49 S Ct 478) citing RCL; Painter vs. State, 163 Tenn. 627, 45 SW (2nd) 46, 81 ALR 173.)

“Under
the foregoing authorities, petitioner’s non-flipper machines are
clearly gambling devices; while the flipper type should likewise be
considered as gambling devices due to their tendency to encourage the
gambling instinct, which lead to idleness, economic waste, dislike for
work and criminality especially among children of school age who are
attracted by the lure and novelty of the machine. They are, therefore
proper subjects and object of the general welfare clause of the City of
Manila. It further results that pinball machines joints cannot be
considered ‘places of amusements’ within the purview of Republic Act
1224 as to affect the question at issue.”

We fully agree with the trial court that “pinball machines” in the
different forms in which they are operated are gambling devices in that
the winning therein depends wholly upon chance or hazard. They are
inimical to the general welfare because they tend to corrupt the people
especially youngsters and schoolchildren robbing them of their money
and of their savings earned by the sweat of their brow. Their operation
should therefore be suppressed not only because they are prohibited by
law but because they are injurious to public welfare. Being gambling
devices or contrivances the operation of which depends upon chance,
they are not only prohibited but are penalized by Article 195 of the
Revised Penal Code.

“Pinball machines” being specially
designed for gambling and as such prohibited by law had been properly
suppressed when the Municipal Board of the City of Manila enacted
Ordinance No. 3941 providing therein that no license for their
installation or operation shall be granted under any circumstances. In
this sense, said ordinance cannot be held to be invalid or
unconstitutional; on the contrary, it properly comes under the general
welfare clause of the Charter of the City of Manila.

It is
true that under Section 18(1) of Act 409, known as Revised Charter of
the City of Manila, the municipal board is given the power to regulate
and fix the amount of license fees for the operation of certain
devices, among them, slot machines, but this provision should be understood as referring merely to those types of slot machines that are not per se
gambling devices, for what is prohibited by law cannot be the subject
of regulation. In this sense, Ordinance No. 3941 is valid and proper,
for it only seeks to regulate, as it does, the installation and
operation of any mechanical contrivance not otherwise prohibited by law. But “pinball machines” are not included in this proviso. They have been properly suppressed.

“A
slot machine is not per se a gambling device, since it may be used, and
played upon for innocent purposes, and courts cannot, therefore, take
judicial notice that every slot machine is a gambling device because
use to which it is put must determine its character.” (Heartley vs. State, 178 S.W. 2nd L. 178 Teen. 354).

“Slot
machine is not per se a gambling device, but is only such where it
delivers some commodity in varying quantity, or where player may
receive, depending on chance, something of value or token of some kind
redeemable for something of value, or where there is some other element
that appeals to the gambling instinct. Ex parte Overby, 279 P. 523,
524, 43 Okl. Cr. 400.” (39 Words and Phrases, p. 519)

Since Ordinance No. 3628 seeks to regulate and license the operation of
“pinball machines” within the City of Manila upon payment of an annual
license of P300.00 for each “pinball machines”, the same is ultra vires,
it being an exercise of power not granted by law to the intervenor. As
already stated, those devices are prohibited by law and as such are not
subject to regulation. The attempt, therefore, on the part of the
intervenor to collect the sum of P4,620.00 as unpaid license fees under
said ordinance cannot be entertained.

Wherefore, the decision appealed from is affirmed, with out pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.