The opinion of the court was delivered by: NEALON
On March 28, 1963, agents of the Internal Revenue Service seized two coin-operated machines, to wit: one Bally 'Barrel-O-Fun' Coin-Operated Device, Serial No. B83483391, and one Bally 'Lotta Fun' Coin-Operated Device, Serial No. B57634263, from premises located at 402 Pittston Avenue, Scranton, Pennsylvania.
A complaint was filed on April 5, 1963, by Hugo Brozzetti (Civil Action No. 8062), alleging he is the owner of the two coin-operated devices, and by George Brocavitch, who asserts that (a) he is the operator of George's Lunch at 402 Pittston Avenue, Scranton, Pennsylvania, and (b) the aforesaid coin-operated devices were located in his restaurant under lease from Hugo Brozzetti on the date of seizure. The complaint sought a preliminary injunction restraining the District Director of Internal Revenue from classifying the aforesaid devices as coin-operated gaming devices; from assessing said machines at the yearly tax rate of $ 250.00; from seizing and forfeiting the devices, and finally, that the devices be returned to plaintiffs.
Thereafter, the United States Government filed a Libel of Information (Civil Action No. 8116) alleging that George Brocavitch was engaged in the business of maintaining for use and permitting the use of coin-operated gaming devices in violation of Section 4901(a), Title 26 United States Code, inasmuch as he had not paid the special tax required by Section 4461(a)(2) of Title 26 United States Code. As a result, the Government requests that the devices be condemned and forfeited to the United States under the provisions of Section 7302, Title 26 United States Code. The Government also moved to have the complaint dismissed because it sought to enjoin the assessment of a tax, which action is barred by Title 26 U.S.C. § 7421, and for various other reasons which were not pursued by the Government. By agreement of the parties, both cases were consolidated for the purposes of trial.
A hearing was held on August 26, 1963, at which time testimony was taken and arguments presented. At the hearing Mr. Brozzetti and Mr. Brocavitch further alleged that the devices were illegally seized from the premises, in that the Internal Revenue Agents did not have a search warrant to support their actions.
From the stipulations of the parties and the evidence presented at the hearing, we make the following
1. The machines in question, one Bally 'Lotta Fun', Serial No. B83483391, and one Bally 'Barrel-O-Fun', Serial No. B57634263, were seized on March 28, 1963, from the premises known as 'George's Lunch', 402 Pittston Avenue, Scranton, Pennsylvania, where they had been maintained for use by the public. George Brocavitch was the proprietor of 'George's Lunch,' 402 Pittston Avenue, Scranton, Pennsylvania, at the time the machines were seized. The machines in question are substantially identical, being standard pinball machines of the 'bingo' type.
2. The machines consist of an inclined glass-covered playing surface which has twenty-five numbered holes therein. The playing surface is studded with pegs and bumpers to obstruct a ball descending the plane and cause it to take erratic courses.
4. By inserting a five-cent coin into the machine it becomes electrically activated, five balls are released for play, and one bingo card is lit and playable. The insertion of a second nickel before shooting a ball puts the second bingo card in play, and so on up to six cards for six nickles inserted. The insertion of the sixth nickle will also light the center number on the sixth card, thus 'spotting' this number for the player.
5. The machine is played by propelling the balls onto the inclined playing surface by means of a spring plunger, where they descend through a maze of pegs and bumpers eventually dropping into a numbered hole, thus lighting a corresponding number on the bingo cards on the backboard.
6. The initial course of the ball can be controlled somewhat by the player, depending on the force applied to the plunger. Thereafter the descent of the ball down the playing surface is determined predominantly by chance. The player can, however, by applying force to the cabinet containing the machine, determine to some extent the direction of the ball and the speed with which it proceeds over the playing surface. This determination is limited, however, by the existence of an adjustable tilt mechanism which deactivates the machine when too much force is applied to it by the player.
7. The object of the play is to illuminate numbers in line on the bingo cards. If three numbers are lit in a row, either horizontally, vertically or diagonally, the machine awards the player four free replays. Twenty free replays are awarded for four numbers lit in a row, and 100 free replays are awarded for five numbers in a row. Free plays awarded are indicated by lighted numbers, in multiples of 100, on the backboard (i.e., 100 equals one free play, 200 equals two, etc.); the machine will accumulate a maximum of 295 free replays. There is no device or limitation that appears in the machine that would limit the player's ability to win games.
8. Normally no coin is necessary to play a free game. The machine contains a red button on the front of the cabinet which, when pushed, removes a free game from the backboard and lights a bingo card. The player, if he has more than one free play, has the option of either playing a number of games with one card lit or one game with a number of cards lit, depending on the number of free plays he has won. However, an adjustment can be made to the machine so that a nickle is required to activate the machine, even when free plays are recorded. After the machine is activated by the coin then the button is pushed to reduce the free games and light additional cards.
9. It is not necessary to play all free games accumulated to return the machine to zero. By holding the red button in, all the free plays recorded are released or knocked off and the machine returns to its original state. There is also a knock-off circuit in the machine which removes all free replays when an electrical contact is made to close the circuit. The machine contains two wires which serve as a trip mechanism for the knock-off circuit. When the machines were confiscated these two wires were connected to a conduit in the wall and had to be ...