Alexander v. Hunnicutt

• Decision Date: 19 March 1941
• Docket Number: 15231.
• Citation: 13 S.E.2d 630,196 S.C. 364
• Parties: ALEXANDER v. HUNNICUTT, Sheriff, et al.
• Court: South Carolina Supreme Court

13 S.E.2d 630

196 S.C. 364

ALEXANDER v. HUNNICUTT, Sheriff, et al.

No. 15231.

Supreme Court of South Carolina

March 19, 1941

Hughs & Hughs, of Walhalla, for petitioner.

John M. Daniel, Atty. Gen., and M. J. Hough and T. C. Callison Asst. Attys. Gen., for respondents.

L. D LIDE, Acting Associate Justice.

This proceeding was instituted in the original jurisdiction of this court by permission of the Chief Justice. The verified petition herein alleges that the South Carolina Tax Commission under the authority of Section 101 (1) (a) of Act No. 346, approved July 1, 1939, 41 St. at Large, p. 650 (the general State Appropriation Act), issued to the petitioner licenses for a large number of coin-operated machines, to which the licenses were attached, and the machines were placed at various business establishments in a number of counties in this State; the licenses being for the full fiscal year ending June 30, 1941; but that the respondents purporting to act under the authority of Section 1301-A, Code 1932, have destroyed a number of the machines owned by the petitioner to which licenses were attached, and that they threaten to seize and peremptorily destroy all of petitioner's machines which have been licensed and placed in operation within the State. The ultimate relief sought is a permanent injunction enjoining the respondents and all other law enforcement officers in South Carolina from seizing and destroying such machines licensed as aforesaid. Upon the filing of this petition a rule to show cause was issued by the Chief Justice returnable before this court on the first day of the February term, 1941; and in the meantime the respondents were restrained from destroying petitioner's machines which have been duty licensed.

Upon the return day, pursuant to notice duly given, the petitioner moved for an order of reference, alleging that he owns machines of many, divers and sundry kinds and construction his contention being that his machines are not inherently gambling devices, and that the respondents by their return and answer describe but one type of machine, alleging that it is within the prohibition of Section 1301-A, Code 1932; and that an issue of fact is thus presented as to the kind, character and nature of the machines which are the subject matter of this action, to the determination of which evidence of the various types of machines should be taken and reported to the court for its consideration of the matter on its merits. We were of opinion, however, that the court would probably be sufficiently informed by the filing of affidavits relating to the types of the machines. And pursuant to permission granted by this court the petitioner subsequently filed a number of supporting affidavits. While each of these affidavits purports to describe a different machine, having a different name, yet it is very evident that the same type of machine is described in all of them, and they all relate to the machine usually called a "pin table". We quote the following from the first affidavit, and the language quoted is almost identical with that in each of the others, the principal difference between the various machines apparently being the number of the so-called "contact points":

"The machine is a mechanical and electrical apparatus, in form commonly called a pin-table. The face is a flat surface, slanting from the rear downward toward the player. On this surface are twenty-eight contact points. At the rear of the machine is an upright face on which the score of the player is indicated. A five cent piece is deposited in a slot, which in turn releases five metal bails. These balls are set in motion by a plunger operated by the player on the right-hand side of the machine. The ball is thrown by the plunger up a channel to the top of the face of the table at the rear, where it is released and starts its downward course to the foot of the table. Each time a ball comes in contact with one of the contact posts or springs, an electrical connection is made which registers the score of the player on the upright board at the rear of the machine.

"There is no pay-off of any kind on this machine and no apparatus for a pay-off is built into or attached to the machine. The sole return to the player is the amusement or entertainment he derives from his success at running up a score. The skill of the player in starting the ball on its journey with greater or less force, determines largely the course the ball will take and the number of contact points which it touches on its downward course. This machine is well adapted for competitive games between two or more players, and is for amusement only."

The ultimate question before us then, is whether or not such a machine as that described above is in violation of the criminal law of this State as contained in Section 1301-A, Code 1932, and incidentally whether this section has been in any way modified by Section 101, No. 346, Acts 1939.

It is earnestly contended by counsel for petitioner that since the 1939 act expressly provides for licenses of "any machine for the playing of music, games or amusements, operated by a slot wherein is deposited any coin or thing of value," such a machine is thus declared to be lawful, even if it might be construed to come within the terms of Section 1301-A, Code 1932. But we think it is quite apparent that it was not contemplated by the licensing act of 1939 (Sec. 101) that illegal machines should be licensed, or made legal merely because a license happens to have been granted. On the contrary, it is expressly provided in subdivision (5) of that section that the issuance of a license "shall not make lawful the operation of the gambling machine or device, the operation of which is made unlawful under the laws of this State." The suggestion that subdivision (5) is inconsistent with the prior provisions for a license is clearly untenable, because the section must be construed as a whole, and as so construed its meaning simply is that lawful machines for the playing of music, games or amusements are subject to the licenses...