Killebrew v. Industrial Commission

The City of Phoenix has prosecuted this appeal challenging the correctness of the judgment of the Superior Court of Maricopa County wherein the City of Phoenix, its officers, servants, agents, and employees were "perpetually enjoined and restrained from picking up, preventing the operation thereof, or in any way interfering with the plaintiff in his business of operating mechanical grabbing devices, commonly known as claw machines." This judgment of injunction was obtained by the appellee John R. Winn upon an agreed statement of facts submitted in substantiation of the allegations of his petition for injunction. The petition alleged (1) that the city had passed a series of ordinances defining games of skill and providing for their licensing, including Ordinance No. 4991, which in addition to defining games of skill and providing for their licensing contained the following section: "Section 2. The operation of mechanical grabbing devices or grabbing machines are hereby declared to be a nuisance per se, and in violation of Section 43-2701, Arizona Code Annotated 1939, and any such operation is hereby declared illegal." (2) that appellee had prior thereto been acquitted by the verdict and judgment of the Superior Court of Maricopa County of violating this particular ordinance involving the admitted operation of a mechanical grabbing or digger machine; (3) "That the respondents have threatened to pick up the claw machines (mechanical grabbing devices) of the petitioner; that such notice was given to the petitioner by the Chief of Police of the City of Phoenix, State of Arizona"; (4) that "The petitioner is carrying on a lawful business and/or businesses within the City of Phoenix, County of Maricopa, namely, the operation of mechanical grabbing machines in which the element of skill predominates over the element of chance or the element of chance does not predominate over the element of skill"; (5) "That the operation of the mechanical grabbing devices are not gambling devices"; (6) "That the petitioner has a large investment in these mechanical grabbing devices and has expended a considerable amount of time and effort in establishing his businesses"; and (7) "That if the respondents, or their agents, carry out their threat to pick up the mechanical grabbing devices of the petitioner, the petitioner will suffer great and irreparable loss, injury, and damage."