Witschner v. City of Atchison

[213] The opinion of the court was delivered by Wedell, J.: This action purports to have been commenced pursuant to our declaratory judgment law (Laws 1921, ch. 168) to obtain an adjudication of the question whether a certain automatically operated pin ball marble amusement table constituted a gambling device under the laws of this state and the ordinances of the city of Atchison. The action was instituted by the owner of the machine. Defendants are the city of Atchison and its chief of police. It was the judgment of the trial court the machine did not constitute a gambling device by reason of the fact it paid no money of property for any score the player might make, but accorded only free replays which were automatically tabulated by the machine. Defendants appeal. It is defendants’ contention that although the machine pays no money, tokens, checks or tickets, it does accord replays, ranging from two to fifty in number, depending upon the score made, and that such right to free plays “constitutes a valuable thing,” and “property,” as those terms are used in the gambling-device statutes of this state. A serious preliminary question requires our attention before we reach the merits of the case. It is whether courts should permit an action of this character to be maintained under our declaratory judgment law. Would the use of that law for the instant purpose actually promote the purpose and intention of its framers? The pleadings and evidence will help emphasize the importance of the question involved. Plaintiff is not operating any of his machines in the city of Atchison but merely pleads that he desires to install them in that city, and that they are not gambling devices. Defendants’ answer denies generally every material averment contained in the petition except such averments as are thereafter admitted. In a subsequent paragraph it is asserted that the machines of which plaintiff is the owner and which he desires to place in the city of Atchison constitute a gambling device. It is clear, therefore, that the most favorable construction which can be placed upon the issues thus joined is that the parties disagree concerning the application of laws and ordinances to the machine which plaintiff desires to place in the city of Atchison, but which he is not now operating there. The petition also alleged: “. . . that any criminal actions that might be instituted [214] against plaintiff or anyone with whom he might deal in relation with said tables would, in addition to being costly, be embarrassing and humiliating to plaintiff and others.” (Emphasis supplied.) It will be observed that neither the petition nor the answer state that a criminal action will be instituted or even that' such action is threatened in the event the machines are installed, or that the police officers will, or are threatening to, confiscate the machines if operated. What about the evidence? The evidence of plaintiff is entirely silent upon the subject of criminal prosecutions or confiscation. Plaintiff’s evidence was to the effect that the scores were determined by the skill of the player. The record before us discloses no evidence whatsoever which was introduced or offered by the defendant city or its chief of police. The trial court ruled the evidence disclosed an actual controversy existed, and that the machines did not constitute a gambling device. It may also be noted that plaintiff’s evidence discloses similar machines are now being operated in numerous Kansas towns. It is thus clear the question presented might readily be determined in an actual trial, and that there is no need for invoking the declaratory judgment law. While the last fact might not be a sufficient ground in every situation upon which to deny the use of the declaratory judgment law, we think it constitutes one of the circumstances in the instant case which may well be considered in determining whether courts should entertain this sort of action under the declaratory judgment law. Upon careful deliberation we have concluded that irrespective of whether an actual controversy exists, and assuming courts have jurisdiction under the declaratory judgment law to determine the question involved, they should not exercise it in an action of this character. It is a far safer practice to permit an action of this character to be tried on its merits rather than for courts to undertake to make a binding adjudication in advance.touching machines of this character and their operation. This is especially true in a case containing the meager record presented here. True, the purpose of the declaratory judgment law was to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights and to make the courts more serviceable to the people. But would a declaratory judgment, in favor of plaintiff, on a record such as the instant one, actually effect that purpose or might it not in fact tend to make law enforcement less effective? Would not the [215] tendency be for police officers to disregard the particular operation and use of the machines in their localities on the theory their operation had been declared legal? If so, the declaratory judgment law could easily become of less rather than of greater service to the people. Might not a judgment, in favor of plaintiff, tend to produce confusion rather than clarity? The instant case presents a rather clear example of the confusion which might result depending upon the evidence in subsequent cases, assuming later actions were instituted in the event a judgment was now rendered in favor of plaintiff. In this case, as heretofore stated, no evidence of the defendant city or its chief of police appears in the record before us. Plaintiff’s evidence disclosed the number of replays to which the operator of the machine might become entitled was determined by the skill of the player. Supposing in an actual criminal prosecution, or in a confiscation case elsewhere involving the same kind of machines, the police officers did testify, and in fact testified positively, that the results were not determined by the skill of the player at all, but that, on the contrary, the result was purely a matter of chance. Supposing we should in such an actual prosecution hold the machine constituted a gambling device, should we then permit the machine to continue to operate in Atchison and deny the right to operate the same machines elsewhere? Would such a result make the declaratory judgment law more serviceable to the people in the enforcement of the antigambling statutes? We do not think so. What about the confusion in decisions which would result by reason of the variance in the burden of proof in actions of this character? In a civil action the burden of proof required is a preponderance of the evidence. In a criminal action the proof required is that which convinces the mind beyond a reasonable doubt. Would a declaratory judgment in favor of plaintiff, in the instant case constitute a valid defense to a criminal prosecution for a subsequent operation of the same machine? Obviously not. The record in that action might justify a conviction. Would a judgment in favor of the plaintiff, on the meager testimony in the instant record, constitute a defense to an equitable action to enjoin the use of the machine on the theory it constituted a nuisance? These and other confusing complications readily suggest themselves in connection with the wisdom of courts exercising jurisdiction in every kind of a case in which an adjudication might be sought pursuant to the declaratory judgment law. It would appear the courts can be of [216] greater service to the people if litigants in cases of this character are required to pursue the regular and established procedure, which is far better adapted to the trial and adjudication of issues of fact as well as law. Another matter suggests itself which seems to us is worthy of notice. Plaintiff does not expressly pray for equitable relief in the form of injunction, but the effect of a judgment in his favor would tend to be the same. The judgment would tend to act as a restraint against criminal prosecution. Equity cannot ordinarily be invoked to enjoin the prosecution of crime. Why should that relief in effect be accorded pursuant to the declaratory judgment law? Was that the purpose and intent of the law? We do not think so. It has been held, in some cases similar to the instant one, that courts do not have such equity jurisdiction or power under the declaratory judgment law. (International Mutoscope Reel Co. et al. v. Lewis J. Valentine, etc., 271 N. Y. 622; Times Amusement Corporation v. Moss, 290 N. Y. S. 794; Reed v. Littleton, 275 N. Y. 150; Worden v. City of Louisville, 279 Ky. 712; Earhart v. Young, 174 Tenn. 198.) The logic of these last decisions, and other similar ones, is criticized somewhat’in Borchard’s Declaratory Judgments (1941), 2d ed., pp. 1030, 1031. While there may be some occasion in reason for the authorities to differ as to the theory upon which relief under the declaratory judgment law is granted or denied, we are persuaded that this law is not well suited to adjudicate the question presented, and that to permit it to be so employed may well endanger, rather than preserve, the good it was designed to accomplish. We therefore conclude the district court should not have entertained the action. The judgment of the district court is reversed with directions to vacate its judgment and dismiss the action.