Darlington Theatres v. Coker
| Citation | 2 S.E.2d 782,190 S.C. 282 |
| Decision Date | 10 May 1939 |
| Docket Number | 14877. |
| Parties | DARLINGTON THEATRES, Inc., v. COKER, Sheriff, et al. BERRY v. SAME. |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Darlington County; E. C Dennis, Judge.
The order of Judge Dennis follows:
These are two identical actions brought by the respective plaintiffs upon identical states of fact to obtain identical relief.
By agreement of counsel the actions were tried together, the proof in each case being applicable to the other. The actions call in question the construction placed by the law enforcement officers of this State upon the lottery laws of the State in relation to the methods used by the plaintiffs termed by them an advertising plan, to give away sums of money in the operation of their respective theaters.
Darlington Theatres, Inc., plaintiff in one case, operates a moving picture theater in Darlington, and H. R. Berry, plaintiff in the other case, operates a moving picture theater in the Town of Hartsville. Hereinafter I shall use the word plaintiff as referring to the plaintiff in each case.
The action is for a permanent injunction. The defendants are law enforcement officers of the respective towns and counties concerned, and of the State. The complaint charges that the plaintiff is pursuing an advertising plan which is wholly free from any taint of illegality, and that the defendants have warned the plaintiff that in their opinion the aforesaid advertising plan is within the prohibition of the lottery laws of the State, and that unless the same is discontinued the defendants will arrest the officers of the plaintiff corporation and others conducting its affairs, and will cause the theater to be closed. It is then set forth that the threatened actions of the defendants, under the terms of the statutes upon which they rely, will result in a multitude of successive prosecutions, and in the deprivation of the plaintiff of its property through the closing of the theater and that under such circumstances there is no adequate remedy at law. The prayer of the complaint is that the defendants be permanently enjoined from interfering with the plaintiff in the management of its theater in connection with the matter in question.
All of the defendants were duly served with the summons and complaint, and with an order nisi issued thereon. Upon the direction of the Attorney General, the defendants were represented by S. S. Tison, Esq., Solicitor of the Fourth Circuit. Upon the filing by the defendants of their return to the rule to show cause, it was agreed by counsel on both sides that in view of the statewide concern with the legal questions presented, and the importance of obtaining an early and final disposition thereof, all questions of jurisdiction and all matters of possible objection relating to the pleadings will be taken to be waived, and that the cause should be referred to the Judge of Probate for Darlington County to take the testimony. An order of reference was accordingly made, and the testimony has been taken and reported to the Court.
The matter now comes before me for decision on the merits. Counsel on both sides have been most helpful in their full and frank presentation of the pertinent facts, and in their discussion of the authorities involved.
The evidence discloses that prior to the adoption of the plan which is involved in this cause, the plaintiff operated a scheme in its theater which was in common use throughout the United States at the time, and which generally bore the name "Jack Pot" or "Jack Pot Night." Under this scheme, at a given time on a stated night each week, there was a drawing for a sum of money. The drawing was made from names deposited in a receptacle after patrons of the theater or others wrote their names on cards or tickets and delivered them at the theater. Under this plan it was necessary to purchase a theater ticket and to be present in the theater at the time the drawing was made, or at least to have been present in the theater, under a paid admission at some time during the day when the drawing was to be made. This was the plan in broad outline.
When the management of the plaintiff theater was informed that the Attorney General had handed down an opinion that the "Jack Pot" scheme is a lottery within the terms of the lottery statutes, the plan was immediately abandoned.
Thereafter the plaintiff adopted the present plan, asserting that its essential purpose is the stimulation of interest on the part of the public in the operation of the theater, and the direction of public attention to the type and quality of pictures displayed in the theater from day to day. Under this plan, names of a large number of people were procured and filed in an alphabetical list. From time to time this list is augmented with additional names. The list was obtained and is maintained through the initiative of the plaintiff. No one pays anything to get his or her name in the list. Any person without purchasing a ticket, may ask that his name be added to the list. On a designated night each week, at a designated time, there is a drawing from these names and a sum of money previously announced is given to the one whose name is drawn. It is not required that the winner be in or near the theater, or that he had purchased a theater ticket either during the day in question or on any other day. When the name of the winner is ascertained it is announced both in the theater and also on the outside of the theater, and the person named has ten minutes in which to come to the theater, wherever she or he may be at the time, to claim the money. This period is fixed, according to the plaintiff's witnesses, as ample time for the winner to reach the theater from his or her home in any part of the town. If the winner is one who has not purchased a ticket from the theater and is not in the theater, it is not necessary that a ticket be purchased to enter the theater and claim the money, and if a person whose name is on the list gives written notice to the management that he or she will be out of town on the day of the drawing, the money will be held for such absent person if he or she should be the winner, and the ten-minute limitation period will not apply.
The evidence shows that under this plan, in more than one instance, the winner was in fact at home when his name was drawn, and reached the theater in ample time to get the money. In such cases no consideration of any kind passed from the winner to the plaintiff, either for the privilege of participating in the drawing or for the privilege of claiming and receiving the money after the drawing was made.
The plan is claimed by the plaintiff to be a sound advertising method, and in no way linked with the lottery idea. It is contended that the purpose of the plan, and its actual effect, is to widen the interest of the public in the theater, by calling attention to it, and to the pictures played therein, through the word of mouth and other discussions and announcements that accompany the conduct of the plan, and though it is not material from a legal standpoint, the testimony itself discloses that there is a considerable decrease in the attendance at the theater on nights when these drawings are made, as compared with the attendance on the nights of the drawing under the "Jack Pot Night" plan, thus emphasizing, it is argued, the legal vice of the requirement of purchasing a ticket under the "Jack Pot Night" plan and the entire absence of such vice under the present plan.
Article 17, § 7, of the Constitution of 1895, provides as follows: "No lottery shall ever be allowed, or be advertised by newspapers, or otherwise, or its tickets be sold in this State; and the General Assembly shall provide by law at its next session for the enforcement of this provision."
Pursuant to this constitutional provision, the Legislature enacted statutes which now appear in the Code as §§ 1231 to 1233, inclusive. These sections are as follows:
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