BOYNTON, Attorney General of Kansas, v. MILLS NOVELTY CO.

BOYNTON, Attorney General of Kansas, v. MILLS NOVELTY CO. No. 619. Circuit Court of Appeals, Tenth Circuit. June 30, 1932. Rehearing Denied Aug. 1, 1932. R. O. Mason, of Topeka, Kan. (Roland Boynton, Atty. Gen., and Dunkin Kimble, of Independence, Kan., on the brief), for appellant. Harry W. Fisher, of Ft. Scott, Kan. ("W. P. Dillard and Ralph Richards, both of Ft. Scott, Kan., on the brief), for appellee. Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges. [MAJORITY — COTTERAL, Circuit Judge.] COTTERAL, Circuit Judge. This is an appeal from an interlocutory injunction, restraining the Attorney General of Kansas, county attorneys, sheriffs, and police officers from seizing, confiscating, or molesting appellee’s automatic mint vending machines, styled “Mills No Value Check,” or “0. K. Mint,” and prosecuting operators pf such, machines. There was a motion to dismiss the bill, hut the District Judge refused to pass upon it. The machines are of the same type, and are operated in the same way, as those involved in Boynton v. Ellis (C. C. A.) 57 F.(2d) 665. The ease differs from the Ellis Case, in that here there was no ruling on the motion to dismiss the bill. But the temporary injunction was erroneous, if the bill does not allege sufficient grounds therefor, as the injunction was applied for in the bill and is based wholly on its allegations. The appellee has filed a motion to dismiss this appeal, and an application for leave to introduce evidence in this court. But both are denied, because neither is well founded. Eor the same reasons as ruled in the Ellis Case, it is apparent the plaintiff’s slot machines are gambling devices, and should not be permitted to be operated at all, as they are violative of the state statutes and like municipal ordinances considered in the Ellis Case. -Oh the authority of that case, the order granting the temporary injunction in this ease should be, and it is, accordingly reversed, and the case is remanded to the District Court, with direction to dismiss the bill and tax all costs to plaintiff. Reversed.