## Facts

- Marshall McKee owned and operated “free-play” pinball machines in Polk County, Oregon.
- A player inserted a nickel and received one game; the machine could award additional “free plays” depending on the player’s score and chance elements.
- The machines did not dispense money, coins, tokens, tickets, slugs, checks, credits, or any physical item.
- A free play was recorded internally and used by pressing a replay button; the player received no detachable or transferable item.
- The Attorney General had taken the position that free-play machines of this type violated ORS 167.535 and ORS 167.555.
- The parties stipulated to the operational facts; the dispute turned on whether the machines fit ORS 167.535’s statutory definition of a “gambling device.”

## Issues

1. Whether pinball machines that award only additional, nontransferable free plays—and dispense no money, tokens, tickets, or other redeemable articles—are “gambling devices” under ORS 167.535 (and thus prohibited by ORS 167.555).

## Decision

- The Oregon Supreme Court affirmed the declaratory judgment for McKee.
- The court held the machines were not “gambling devices” within ORS 167.535 because they did not vend, dispense, or release the kinds of items the statute specifies.
- The court rejected the state’s argument that an intangible free play is a “representative of value” or an article redeemable or exchangeable within the statute’s terms.
- The court distinguished prior authority upholding regulation of pinball machines under police power as separate from whether a particular statute’s text reaches the devices.

## Legal Principles

- Statutory definitions of gambling devices that focus on machines that “vend,” “dispense,” or “release” money, tokens, checks, credits, or similar “representatives of value” are directed at devices that provide a tangible item or an article capable of redemption or exchange.
- An internal replay privilege that yields only additional operation of the same machine, without any detachable or redeemable item, does not fall within statutory language requiring vending or dispensing specified articles or representatives of value.
- Courts will not extend penal or quasi-penal statutes beyond their textual coverage; if broader prohibition is intended, it is for the legislature to state it.

## Conclusion

The court concluded that free-play pinball machines awarding only additional plays and dispensing no tangible, redeemable items were outside ORS 167.535’s definition of a gambling device, so their operation did not violate Oregon’s gambling-device prohibitions as written at the time.


McKee v. Foster, 217 Or. 322, 347 P.2d 585 (Or. 1959)