Harvie v. Heise

• Decision Date: 16 January 1929
• Docket Number: 12563.
• Citation: 148 S.E. 66,150 S.C. 277
• Parties: HARVIE v. HEISE, Sheriff, et al., and 8 other cases.
• Court: South Carolina Supreme Court

148 S.E. 66

150 S.C. 277

HARVIE v. HEISE, Sheriff, et al., and 8 other cases.

No. 12563.

Supreme Court of South Carolina

January 16, 1929

Original proceedings for injunction by Robert Harvie, doing business under the name and style of the Automatic Sales Company, against T. A. Heise, Sheriff, and others, by G. M. Adler against Carlos A. Rector, Sheriff, and others, by A. R. Kizer against T. A. Heise, Sheriff, and others, by A. W. Wilson against F. B. McLane, Sheriff, and others, by W. D. Kelley against T. A. Heise, Sheriff, and others, by T. A. Mahaffey against W. M. Kay, Sheriff, and others, by B. W. Biggs against B. H. Brown, as Mayor, and others, by J. H. Keeney and others against F. B. McLane Sheriff, and others, and by the Superior Confection Company against John B. Craig, Sheriff, and others. Temporary restraining order dissolved, permanent injunction denied, and petition dismissed.

C. T Graydon and Jas. S. Verner, both of Columbia, Dean, Cothran & Wyche, Jester & Wooten and C. S. Bowen and James E. Taylor all of Greenville, Spears & Want, of Darlington, R. Y. Kibler and D. M. Winter, both of Columbia, T. C. Turner, of Pickens L. G. Southard, of Spartanburg, and Hart & Moss, of York, for petitioners.

J. Ivey Humphrey, Asst. Atty. Gen., C. E. Daniel, of Spartanburg, and E. L. Herndon, of Walhalla, for respondents.

STABLER J.

In these nine separate proceedings, instituted in the original jurisdiction of this court, the petitioners seek writs of injunction to restrain and prohibit the respondents--and in some of the actions, all law enforcement officers, state, county, and municipal--from seizing and confiscating certain slot or vending machines. With some differences to be noted with respect to one of the machines involved in the Keeney case, these machines are all of the same make or practically alike in operation. As the several proceedings present the same questions, the Court heard them together; and, while we shall give full consideration to the pleadings and arguments in all the cases, we shall consider more particularly the first-named action, the disposition of which will dispose of all the others as well.

The slot machine in question, which the petitioner is engaged in installing and operating, is a mint-vending machine, known as "Mills O. K. Front Mint-Vender," and is alleged by him to be a purely merchandise vending machine with an amusement feature designed merely to attract attention and to stimulate the sale of mints. This machine, one of which was exhibited to the court, is operated in this way: The player deposits a nickel, or five-cent piece, in a slot at or near the top of the machine, pulls a lever at its right side, and turns a knob below, which releases a package of mints. This operation also causes several reels or cylinders on the front of the machine to spin around, thus furnishing the player, it is alleged, with amusement and entertainment by exhibiting different combinations of pictures of fruits, etc. In other machines the cylinders operate to show humorous remarks, and in still others to tell the pretended "fortune" of the customer. At irregular intervals the machine issues brass checks or tokens, from 2 to 20 in number, according to the luck of the player, which are delivered to him by the vender at the time he receives the package of mints. The petitioner alleges that these tokens have no monetary or trade value, and are not redeemable in money or otherwise, but are offered merely as a special inducement to sell the mints; that the player may operate the vender with these tokens for his own amusement, as above indicated, but when he does so he does not receive any mints or other thing of value, and that he is advised in advance of each operation by a card placed on the front of the machine exactly what he will receive as the result of each play. He alleges further that the machine in question is not such as is declared to be illegal by the laws of the state, and that, if petitioner's property is seized and confiscated, he will suffer irreparable injury thereby.

Upon the verified petition, in this particular case, Chief Justice R. C. Watts issued a temporary restraining order, and ruled 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, denying that the player or operator of the machine receives certain uniform and fair return in value for the coin deposited therein, and that there is no element of chance involved in the operation of the machine. They allege further that the brass checks which the player may receive, in addition to the package of mints, are not used solely for amusement of the player and for inducing the sale of mints, as alleged by the petitioner, but are redeemed in cash or merchandise by the custodian of the machine; that the machines are gambling devices under the statute, and that their threatened seizure is in pursuance of the criminal laws of the state, and that a court of equity is without jurisdiction to restrain the enforcement of these laws. In support of their allegations of fact, the respondents filed a number of affidavits, to which we shall hereafter refer.

The several questions raised by the pleadings may be thus stated: (1) Is the vending machine described in the petition a gambling device, the keeping or operation of which is contrary to law? (2) May the respondents seize and take possession of the machine, even though it is a gambling device, the keeping or operation of which is illegal under the statute? (3) Has the court the power to grant an injunction to prevent the seizure of these machines by the respondents?

The statute, section 196, vol. 2, Code 1922, under which it is contended the machines may be seized and confiscated, is as follows: "It shall be unlawful for any person to keep on his premises or operate or permit to be kept on his premises or operated within this State, any slot machine of whatever name or kind, except automatic weighing, measuring, musical and vending machines 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. Any person whomsoever who shall violate this section shall be subject to a fine of not more than one hundred dollars, or imprisonment upon the public works of the County wherein the offense is committed for a period of not more than thirty days."

From a reading of this section it is seen that, in order to escape the condemnation of the statute (1), the vending machine must give a certain uniform and fair return in value for each coin deposited therein, and (2) there must be no element of chance in the operation of the machine. The contention of the petitioner is that his machine meets fully both of these requirements, and is not therefore, in contemplation of the statute, a gambling device.

It is generally held that a slot machine which gives for a coin deposited therein merchandise of the value of the coin, and also returns at uncertain intervals, in varying amounts, money or trade checks, is a gambling instrument. State v. May, 188 N.C. 470, 125 S.E. 9; Com. v. Gritten, 180 Ky. 446, 202 S.

W. 884. It is also generally held that, even if the machine indicates in advance exactly what it will dispense, it is none the less obnoxious to the law, for the reason that the player does not gamble upon the immediate returns for the coin deposited but on the chance that a profit will be shown on the next play. Brockett v. State, 33 Ga.App. 57, 125 S.E. 513; Tonahill v. Molony, 156 La. 753, 101 So. 130; State v. Googin, 117 Me. 102, 102 A. 970; Zaft v. Milton, 96 N. J. Eq. 576, 126 A. 29; Griste v. Burch, 112 S.C. 369, 99 S.E. 703.

In 27 C.J. 989, we find the following: "The various courts have formulated different rules for determining when a slot machine is a gambling device, but one which seems to have been accepted very generally is that, where one who plays a slot machine stands to win or lose money, trade, or checks by hazard or chance, the machine is a gambling device. The machine is a gambling device where its operation is such that, although the player in any event will receive something, he stands a chance to win something in addition. Some courts hold that a slot machine...