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PARI-MUTUELS IN ARIZONA * SUrKEME COURT DECIDES USE OF THE MACHINES IS NOT GAMBLING. Analytic Dissection of the Issues Involved in a Case Appealed from a Lower Court — One Dissenting Judge. Tho Supreme court of Arizona, on the twenty -second of December, decided that Judge McCall. :i prominent horseman aril county judge of Cochise county in that state, had not violated any law when lie set up and operated ■ pari-mutuel machine at tho Arizona State Fair at Ihoenix. It seems that there is a law against gambling in Arizona, which is exceptionally severe, and Judge McCall concluded lie would tost the law. So he secured a pari-niutuol machine and set it up at the Phoenix 1915 fair, lie was promptly arrested of course and bad been fight lag the case ever since. Judge Stanford of the superior court held that the operation of a pari-niutuol machine was unlawful and ordered that Judge McCall pay the penalty. McCall appealed his case to the Supreme court of Arizona and this court lias now ordered that defendant McCall be discharged from custody as be has not violated the law. but whether the decision will bo satisfactory to those who desire to use the machines to bet on races remains to be seen. Judge Cunningham, who wrote tho decision, holds that the operation of the pari-mutuel machine in itself is not a crime, as the machine does not regulate to whom the bets are to he paid: the result of the race decides that. Neither is the man who operate* the machine committing ;: crime, but whether the people who play the machine are gambling or committing a crime is not settled. Chief Justice Hoss especially concurs in Justice Cunninghams decision, but Justice Franklin dissents. Machine Operator a Stakeholder. In speaking of the operation of the machine Justice Cunningham says: "Certainly holding the stake -s_« not playing* n fcHine. IHviding the stake and pay-ag».ig it out to the several winners is not playing a game. Holding a commission for the services rendered in the transaction is not playing a game. Neither can the furnishing of the tickets be considered as playing the game. Inder the evidence the game played was the horse race. The bets were laid on the result of that contest. If a horse race may lie considered a game and a gambling device, as some courts have affirmed and others denied, yet the accused is not -barged with playing a game with horses running on a prepared track as gambling devices. The specific charge is that he conducted a gambling game by the use of a pari-mutuel machine as a device. Not "Oonductincj a Game." "Clearly then the horse- race, the tickets sold, the pooled funds in the neeased hands, bis commissions and the division of such funds and his giving them out to the persons entitled, are not involved in this charge lx cause lie is not charged with conducting a horse race game in the first place, and in the second place, these things which lie did in the premises do not amount to conducting any game whatever." It will be seen by the above excerpt of the opinion as written by Justice Cunningham, that the mine ting of a pari-mutuel machine is not a game and that there is a question as to whether or not a horse race is :1 game. Justic" Cunningham closes his decision by ordering tie cause remanded to the superior court with instructions to dismiss and discharge the defendant. In specially concurring in Justice Cunninghams decision. Chief Justice Hoss says: "I concur in the disposition of the case as directed by Justice Cunningham, but feci that I should give my reason therefor. I— Will H I do not approve of all that is said by my learned associate." Views of the Chief Justice. The Chief .justice then recites his reasons for sup-jMirting the decision, in the course of which he state s as follows: "The proprietor and owner of the machine, while forming tin nuleus of a betting crowd, does not play the game of horse racing — it is the crowd that plays the game the proprietor and the- machine hold the pool and distribute it after the race to the winners, holding a percentage for their services. The machine in and of itself hies not eletermine who wins or lose s. It might be used in connection with any physical contest, whether of man or beast, as. for instance, in registering bets on foot rae-es. or boxing or jumping matches, or on horse racing or trotting races. In all these easels, however, the winner is determined not by the pari-mutuel machine, but by the contestants — the men or horses. It will be- seen, therefore, tiiat the pari mutuel machine, while- used in connection with gambling, is rot a device which dete-rmine-s who shall win or lese, and is not a device with which a game is played — it is an instrumentality em ployed by those- gambling, but it is not a device mentioned in the statute with which a game- is played." Justice- Itoss gives a description of the machine in the following words: "A pari-mutuel machine is as innoe-iious in and of itself as a faro table without carafe, a roulette- tabic- without the ivory balls, a stein without beer, a goblet without wine. These are alike harmless without the complement of cards, ball-, be-e-r and wine. So likewise is the pari mutuel machine without the horse race or other contest of chance." The Dissenting Opinion. Justice Franklin does not take tin- same- vi- w of the matter as doe- either of his associates. In the -. cause .if his lengthy dissenting decision he says as • follows: -,It is probably not contemplated that a fair as-••■ lation whose corporate life has been granted by the state . and which is uuder the control of public-officers, should claim the- right to authorize and ie.it a place fs gambling at the fair grounds. In the- absence of specific legislation, this would he somi-what novel. Hut. nevertheless, thOM persons whose tastes and wishes can be- gratifie-d only by this species of public gambling at race tracks must find relief in legislative action, for no right-thinking person WOO*! like to sec the- odious spectacle of the courts of his state pioneering in the path of 1, .:i-latioii thai must be left open exclusively to another branch of the government. Such an undertaking will inflict a wound upon the law which nothing can heal, for one step in this respect opens the door for others which are- sure to follow. The public policy of this state must be uiiiiouaced by the lawmaking power, not by the courts. •. . . A judgement should be entered dfatsaiss-thfl appeal because the proceeding is sham. If tin- appeal hi e ntc-rtained. however, this court should oust at its root and substance-, unfrock it of the nu-ehanie-.il parts, ignore the deadwood, and the shadow of the dry legal rule, and look broadly at the stipulated facts. Our vision of the forest must not be obscurred by the tree. . . . While I am convinced that a judge, when he wishes to air his iiielivielual opinions of the law. ordinarily should be willing to pay for the same at the- current advertising rates, and not aid unduly to stuff these fellows in buckram, nevertheless in palliation of such prolixity. I can only say that my brothers have grievously erred, and grievously have I gibbeted the error."
