The opinion
BELT, J.
The defendant Coats is charged, in an information filed by the district attorney, with having maintained and conducted, for money, a nickel-in-the-
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slot machine in Polk county. From an order sustaining a general demurrer to the information, the State appeals.
The facts in the information setting forth the commission of the alleged crime are identical with those in the pinball machine case
(State v. Coats)
this day held to constitute a lottery. As stated in the companion case, a pinball machine and a nickel-in-the-slot machine come within the same category and must be judged by the same law. Hence, if the operation of a pinball game is a lottery, it logically follows that the operation of a slot machine constitutes a lottery.
While no section of the statute is referred to in the information, we assume from the briefs that the charge was brought under section 14-746, Oregon Code 1930, prohibiting the operation of nickel-in-the-slot machines. It is believed, however, that the facts alleged might also bring it within the statute prohibiting the operation of lotteries. It would be an anomalous situation, to say the least, if this court were to hold that the operation of one machine constituted a lottery and the operation of the other, having an identical description, was not a lottery. Common sense rebels against such a conclusion. Looking to the charging part of the information in the instant case, we find it alleges all the elements of a lottery. Hence, it is held that the operation of a nickel-in-the-slot machine constitutes a lottery and is in violation of the constitution. What was said in the pinball case is applicable here and need not be repeated.
Defendant contends that Chapter 369, Oregon Laws 1935, providing:
“That municipal corporations and counties be and they hereby are empowered to license, limit, regulate, impose a privilege tax or charge upon or prohibit pin ball games, dart games, and other games of like character involving an element of skill. ’ ’
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authorized the licensing of the nickel-in-the-slot machines described in the information. It is obvious that if the operation of a slot machine constitutes a lottery it violates the constitution, and the above statute, insofar as it purports to authorize the licensing of such machine, would be of no force or effect.
The decree of the lower court is reversed and the cause remanded for further proceedings.
Bean, C. J., and Rand, Rossman and Lusk, JJ., concur.