Durant v. Bennett, 306.

• Decision Date: 03 November 1931
• Docket Number: No. 306.,306.
• Citation: 54 F.2d 634
• Court: U.S. District Court — District of South Carolina
• Parties: DURANT v. BENNETT, Sheriff et al. KIZER v. SAME.

54 F.2d 634 (1931)

DURANT v. BENNETT, Sheriff et al.

KIZER v. SAME.

No. 306.

District Court, W. D. South Carolina.

November 3, 1931.

James E. Taylor, of Greenville, S. C., T. L. Kirkpatrick and H. L. Taylor, both of Charlotte, N. C., and Dunlap & Dunlap, of Rock Hill, S. C., for petitioners.

John M. Daniel, Atty. Gen. of South Carolina, Cordie Page, Asst. Atty. Gen., R. E. Babb, of Laurens, S. C., Nicholls, Wyche & Russell, of Spartanburg, S. C., and Harold Major, of Anderson, S. C., for respondents.

Before PARKER, Circuit Judge, and WATKINS and GLENN, District Judges.

GLENN, District Judge.

For the last several years the state of South Carolina has been peculiarly vigilant in its activities to enforce its criminal statutes directed against gambling devices. Particularly have these activities been directed against the operation of so-called slot machines which have been placed in the state and which are undoubtedly operated primarily as gambling devices. It appears that these machines are so constructed as to yield an enormous return to the owners and the local custodians with whom the owners place the machine. In that the machines, so far as outward appearance is concerned, closely resemble innocent vending machines, the determination of the illegality of each particular machine has not always been an easy task. The owners of the machines have sought court protection in state and federal courts alike. Proceedings have been had in the original jurisdiction of the state Supreme Court. See Harvie et al. v. Heise et al., 150 S. C. 277, 148 S. E. p. 66. But the opponents of the slot machine felt that section 196 of the Code of Laws of 1922, Vol. 2, was not drastic enough. Accordingly, the Legislature of 1931 passed a very far-reaching statute (37 St. at Large, p. 367) against all forms of gambling devices, vending machines which could be operated as gambling devices, and all games of chance. It is not necessary to set out the entire statute, as only section 3 of the said statute is attacked as being violative of the due process clause of the Fourteenth Amendment to the Federal Constitution and of certain provisions of the South Carolina Constitution of 1895. This section is as follows: "That any vending or slot machine, punch board, pull board, or other device pertaining to games of chance, prohibited by this Act shall be seized by any officer of the law and at once taken before any Magistrate of the County in which such machine is seized, who shall immediately examine same, and if he is satisfied that such vending or slot machine is in violation of this Act or any other law of this State, he shall direct that said machine be immediately destroyed."

Since the passage and approval of this statute, the officers of the state, both state and county, have proceeded to seize slot or vending machines which belong to the petitioners in these cases. We refer to the complainants throughout this opinion as petitioners, in that the case is primarily before us on an application for an interlocutory injunction. In that the application for an interlocutory injunction in each of the cases is directed against state officers, the Governor in one case and the Attorney General in the other, both of whom are officers filling offices created by the South Carolina Constitution, there is no doubt that a case is presented which requires the special statutory court provided for by section 266, Judicial Code, section 380, title 28 USCA. Likewise there is a diversity of citizenship, in that the petitioners are both citizens and residents of North Carolina, and we think that the jurisdictional amount is present.

The only attack on the jurisdiction is made on the grounds that there is no showing that any one officer has seized, or is about to seize, machines of the value of $3,000. The Attorney General in attacking the jurisdiction relies on Essman v. Hood (D. C.) 45 F.(2d) 881. We think, however, that the true test is the value of the property or property rights which the petitioner seeks to protect. Abundant decisions might be cited to sustain this proposition; but, in that they are all recently discussed by Circuit Court of Appeals of the Fourth Circuit, we simply refer to the case of Swan Island Club v. Charles Ansell, 51 F.(2d) 337.

Furthermore, and absolutely decisive of the jurisdictional question, we point out that in the Hood Case no state officer was made a party, whereas, here we have the Attorney General in one case and Governor himself in another. In that the activity of the police officers, of one kind and another, is under the control and supervision of the Governor and Attorney General, the jurisdictional amount is clearly involved as to them. The presence of the jurisdictional amount is so clearly shown by these factors that we do not deem it necessary to discuss that question any further.

In the separate findings of fact, we have fully set forth a description of the machines and their usual method of operation. It is clear that they are primarily gambling devices in their very nature. They are constructed for the purpose of yielding enormous revenue to the owners and operators. The testimony shows conclusively that, while on rare occasions the player may win and get considerably more than he puts in, yet over a considerable period of time the machine retains in its own coffers a great majority of the money deposited in the slots. One of the owners admits that he and his local agent received 80 per cent. after a small tube in the machine was filled. The petitioners contend that, as a package of mints or gum is returned each time, if the player so desires, the machine is not a gambling device. They point out that the money paid by the machine is deposited in a small metal box in the rear of the machine. They say that this box may be locked, and that, if locked, the money goes to the machine and not to the player. But, if the box be kept locked and the machine operated, it simply adds to the unlawful earnings of the owner and custodian. The testimony overwhelmingly shows that, where the machines are actually patronized at all, the box is kept unlocked. Indeed, if the player knew that the box was locked and his occasional chance of winning would simply deposit nickels in a locked box, he would not play the machine at all. The petitioners ask for interlocutory injunctions against the Governor, the Attorney General, and the other officers named as defendants. We do not think they are entitled to relief on any grounds. In the first place, we do not think that the petitioners here have any standing in a court of equity. It is a fundamental rule in equity that he who seeks relief in equity must come into the court with clean hands. If the petitioners were here with clean hands and were seeking to protect property which the law recognizes and protects as lawful property, a different question might be presented. But the complainants here have come to ask extraordinary relief of a court of equity to protect property which has already been outlawed by the statutes of South Carolina and by the highest court of that state. Whatever may be said about the much maligned section 3 of the 1931 act, the property of the petitioners involved here has been denounced by other statutes of the state of South Carolina which are unquestionably valid. In the return verified by the Attorney General and his assistants it is pointed out that these same petitioners were either directly or indirectly before the state Supreme Court in the proceedings referred to. It appears also that these very same parties have procured many temporary restraining orders from the circuit judges of the state of South Carolina, and that, when the petitions have been heard on their merits, the owners of the machines have either defaulted or been denied the protection of permanent injunctions. Time after time they have operated for a short time under temporary restraining orders of state and federal courts merely until the matter could be heard on its merits. With this showing appearing to the satisfaction of the court, we unhesitatingly conclude that the petitioners here have not come into this court with clean hands. A court of equity will not listen to a man who comes into court to protect property which has already been outlawed.

We might dispose of the entire controversy on this ground, and this ground alone. But there are other reasons for which we think it is equally clear that the petitioners should be denied their application for an interlocutory injunction and for the permanent injunction sought by their bills. We think that they have an adequate remedy at law to protect their rights in the property involved. It is perfectly clear that the complainants, if they desire, can protect themselves by seeking a redress through claim and delivery, the South Carolina possessory action by which the possession of personal property is sought. The plaintiffs contend that the remedy of claim and delivery is not open to them. We think that this is, however, an erroneous conclusion which they have drawn from certain of the South Carolina decisions. It is true that in several South Carolina cases it has been held that machines seized as gambling devices by a sheriff were not to be returned to the complainants. But these decisions are based on the merits, and not on the theory that the action in claim and delivery was not the proper action in which to test the legality of the seizure. In this connection we point out that in the testimony of the petitioners there is no showing that any of the machines have been, or are about to be, summarily destroyed. Certainly so long as the property is in the possession of a sheriff or other peace officer, claim and delivery is available to test the legality of the possession. The case on which the petitioners rely chiefly is that of Griste v. Burch, 112 S. C. page 373, 99 S. E. 703; but there is no holding in that case that claim and...