Alexander v. Martin

• Decision Date: 06 December 1939
• Docket Number: 14976.
• Citation: 6 S.E.2d 20,192 S.C. 176
• Parties: ALEXANDER et al. v. MARTIN, Sheriff, et al.
• Court: South Carolina Supreme Court

6 S.E.2d 20

192 S.C. 176

ALEXANDER et al. v. MARTIN, Sheriff, et al.

No. 14976.

Supreme Court of South Carolina

December 6, 1939

Hughs & Hughs, of Walhalla, for petitioners.

John M. Daniel, Atty. Gen., and J. Ivey Humphrey and M. J. Hough Asst. Attys. Gen., for respondents.

FISHBURNE Justice.

This proceeding was by permission instituted in the Original Jurisdiction of this Court, to restrain the respondents, State, County, and Municipal law enforcement officers, from seizing and destroying or otherwise interfering with the operation of petitioners' machines which are described as electrical and mechanical devices, and otherwise denominated as pin boards, pin tables, marble boards, and the like.

The petition alleges that the machines are not gambling devices within the purview of Section 1301-A, Code of 1932, but on the contrary that they are legitimate devices which are played for amusement only, and that there is no pay-off or return to the player other than the value to him of the amusement which the playing of the machine affords. It is alleged that this value is uniform and certain upon every play to every player.

By Section 101 (1) (a) of Act 346, 41 St. at Large, p. 650 approved the 1st day of July, 1939, it is provided, among other things: "That every person, firm or corporation owning or maintaining any place of business, or other place wherein or in connection with which is operated or located any machine for the playing of music, games or amusements, operated by a slot wherein is deposited any coin or thing of value or any machine in which is kept any article to be purchased by depositing any coin or thing of value, shall apply for and procure from the South Carolina Tax Commission a license for the privilege of operating any and every such machine and shall pay for such license a tax of Fifteen ($15.00) Dollars ***."

It is further provided in subdivision (5) of the above Section: "The issuance of the license under the provisions of this section by the South Carolina Tax Commission 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."

It appears that the machines are being operated under a license issued to the petitioners for their various machines by the South Carolina Tax Commission under the authority of the above Section.

The respondents, on the 29th day of August, 1939, and other days prior thereto, deeming that the machines were gambling devices and fell within the prohibition of Section 1301-A, seized and destroyed various and sundry of the licensed machines, after taking them before a magistrate, who ordered their destruction under subdivision (2) of Section 1301-A.

It is alleged that the respondents have declared their intention to seize and destroy all of the machines of the petitioners within the State of South Carolina, and that if petitioners are not protected in their property rights against the unlawful trespasses of the respondents, they will suffer irreparable injury; they further allege that they are without adequate remedy at law.

Upon the verified petition, a temporary restraining order was issued by a Justice of this Court, which directed the respondents to show cause at the time and place named in the order, why the injunction should not be made permanent. The respondents made return and answer to the petition, in which they alleged that the machines are operated as gambling devices, not giving a uniform return, but giving different results at different plays when operated by the same or different players, and that the score registered at each or different plays is not determined by the skill of the player, but is a matter of chance or hazard. It is also alleged that the respondents acted under authority of a valid criminal statute, the enforcement of which the Court is without jurisdiction to restrain.

Attached to the foregoing return and answer are numerous affidavits describing the machines in question, and setting forth in detail the method and manner of their operation. The following description generally applies to all of the machines seized by the respondents:

"The machine, supported by four table legs, is about five feet in length, two feet wide, sixteen inches deep at the front of the cabinet, and eighteen inches at the back. The cabinet is covered with glass. There are twelve upright electric pins in the machine. These pins are numbered from one to twelve. There is a backboard about two feet square with numbers ranging from one to twelve to correspond with the numbers on the pins in the cabinet.

"The player of this machine places a nickel in a slot on the left front of the machine. A knob on the right front releases five steel balls singly to a plunger just above the knob. The player releases the plunger against the ball and sends it through a slot to the top of the cabinet where it then becomes free to strike any number of the twelve pins. When a pin in the cabinet is struck by a ball the corresponding number to that pin is lighted in the backboard, if while shooting these five balls the player causes all twelve of the pins to be struck, and thus lights all twelve numbers in the backboard, he receives a game. Should the player cause all numbers in the backboard to be lighted with four balls, then each pin struck by the fifth ball allots him a free game. There are two small pegs near the front, or pocket, of the machine. If a ball strikes four pins before reaching these pegs, they become lighted. If a ball strikes a fifth pin the lights go out in these pegs. However, in the event a ball passes between these pegs on its exit, while these pegs are lighted, the player receives two free games. Whatever number of free games a player might gain, this machine is so constructed that it is not necessary to insert another coin until all free games are played. If a free game is in order all that is necessary to gain the five balls is to push the slot in where the original coin was inserted."

The score of a player is recorded on the score board at the head of each table, in a variety of ways, dependent upon the type of the table being used. It may be indicated by a number, or by pictures or symbols. According to the affidavits submitted by the respondents, there is no skill involved in playing the machines, but that the result is contingent upon chance. The player has no way of knowing in advance what his score will be, the score being unpredictable, and being determined solely by the particular metallic post or pin with which the ball comes in contact. At one play or series of plays, the score may total one result, and at the next play or series of play a different result, whether manipulated by the same or by different players.

Petitioners assert that a certain measure of skill may be acquired in playing these machines, but make no denial of the fact that there is an element of chance in the resulting score. Nor do they deny that dependent upon the score a player is awarded free games. They insist that the games are played for amusement only. But it appears from at least one affidavit of the respondents that a successful player was paid off in money by the owner of a like machine in the city of Greenville.

Are the machines of the petitioners prohibited by the criminal statutes of South Carolina, and more particularly by Section 1301-A?

The above Section makes it a criminal offense for one to keep on his premises, or to operate, or permit to be kept on his premises, or to be operated within the State, "any vending or slot machine, punch boards, pull boards, or other devices pertaining to games of chance of whatever name or kind, except automatic weighing, measuring, musical and vending machines which are so contructed as to give a certain uniform and fair return in value for each coin deposited therein, and in which there is no element of chance".

It is also provided in this Section: "That this section is also intended to prohibit all vending, slot machines, punch boards, pull boards, or other devices pertaining to games of chance, that display different pictures, words, or symbols, at different plays, or different numbers, whether in words or figures, or which deposit tokens or coins at irregular intervals, or in varying numbers to the player or in the machine."

It is clear that the law condemns any devices pertaining to games of chance, of whatever name or kind, except certain types of machines therein mentioned which are so constructed as to give a certain uniform and fair return in value for each coin deposited therein, and in which there is no element of chance. Petitioners argue that while in the playing of their machines there is present some element of chance as to the score which may be made, there is no hazard or chance involved in what the player receives,--which is the amusement he derives from the playing of the game.

While it is true that the player receives the same number of balls for each coin deposited, he may or may not make the same score for each coin's worth of balls played. This in itself is an element or contingency,...