Holliday v. Governor of State of South Carolina, Civ. A. No. 874.

Decision Date20 July 1948
Docket NumberCiv. A. No. 874.
PartiesHOLLIDAY v. GOVERNOR OF STATE OF SOUTH CAROLINA et al.
CourtU.S. District Court — District of South Carolina

Henry H. Edens and Henry Hammer, both of Columbia, S. C., and Chandler, Bell & Chandler, of Greenville, S. C., for plaintiff.

John M. Daniel, Atty. Gen., and T. C. Callison and J. Monroe Fulmer, Asst. Attys. Gen., for Governor of State of South Carolina, and Attorney General of State of South Carolina.

J. D. Todd, Jr., of Greenville, S. C., County Atty., for R. H. Bearden, Sheriff of Greenville County, S. C.

Before PARKER, Circuit Judge, and WYCHE and HUTCHESON, District Judges.

WYCHE, District Judge.

The plaintiff in this suit seeks to enjoin the enforcement of Sections 1301, 1301-1, 1301-1(2), Code of Laws of South Carolina, 1942,1 and Act No. 284 of the Acts of 1947 of the General Assembly of South Carolina,2 45 St. at Large, p. 592, upon the ground that such Acts are in violation of Section 1, Article 14 (Fourteenth Amendment) of the United States Constitution.

These Acts, as construed by the South Carolina Supreme Court, declare "coin operated non-payout Pin Tables with free play feature" to be gambling machines per se, and as such subject to seizure and destruction.3

An interlocutory injunction was sought and a Court of Three Judges was constituted, pursuant to Section 266 of the Judicial Code, 28 U.S.C.A. § 380.

By consent, a hearing was held at Asheville, North Carolina, on June 23, 1948, at which time it was agreed by counsel for all parties that the case be submitted for a final decree upon the merits.

The basis for the jurisdiction of this Court is the allegations of plaintiff that he is the owner and conditional vendor of legal coin operated amusement machines (known as "coin operated non-payout Pin Tables with free play feature"), without any gambling feature, located at various places in the State of South Carolina; that the machines are of a value in excess of $3000, and that the interest of the plaintiff as owner and conditional vendor of the machines is in excess of the sum of $3000; that he has been informed that the defendants intend to seize and destroy all of the machines in which the plaintiff has an interest, either as owner or as conditional vendor, which are located at various places within the jurisdiction of this court; that the machines are not legally subject to seizure and destruction by the defendants; that the amusement machines are not games of chance within the provisions of the foregoing statutes of the State of South Carolina; that the statutes are unconstitutional, null and void, and in violation of the Fourteenth Amendment of the United States Constitution, because the statutes treat, embrace, regard and include the said coin operated amusement machines of the plaintiff as gambling devices per se, and subject them to seizure and destruction as gambling devices per se, although they are inherently innocent, and are not gambling devices per se; that their intended seizures and destruction, or any seizure and destruction of them, are and would be, in violation of plaintiff's constitutional rights; that unless defendants are enjoined, as prayed for, plaintiff will suffer immediate and irreparable injury, and that plaintiff is without an adequate remedy at law.

A temporary restraining order enjoining and restraining the defendants, their agents, or servants, from interfering with, seizing or destroying or threatening to seize or destroy any of the said machines owned by the plaintiff, or in which the plaintiff had an interest, was granted for ten days, without notice, under the provisions of 28 U.S.C.A. § 381, and also, Rule 65, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Subsequently, the temporary restraining order was continued, by consent of the parties, until such time as the issues may be determined on the merits, or until the further order of the Court.

At the hearing plaintiff offered testimony to describe the machines and had one of them operated in open court as part of the evidence in the case. The coin operated nonpayout Pin Tables with free play feature is about five feet long, three and one-half feet high, and is supported by four table legs. The playing field, containing lights and electrical contacts, is enclosed in a cabinet covered with glass, and is about forty-two inches long, and twenty-one inches wide. At the rear of the table is the back-board about twenty-one inches high; it stands with the legs about five and one-half feet high. The illuminated portion of the back-board is two feet by two feet. To put the machine in operation by a player a coin is placed in a slot which releases a certain number of steel balls to the player. To play, the ball is projected onto the playing field by a plunger. "With different combinations, you hit certain numbers. With different (other) combinations, you don't hit certain numbers. Because in hitting certain numbers, you might detract from your score or fix it in such a way that you won't be able to build up a score as high as possible. * * * On this machine, you have numbers 1 through 6 inclusive. By hitting 1, 2, 3, and 4, you hit a light which is a double feature, which doubles the score placed on the bonus. The bonus is graduated by yellow and purple lights, distributed on the playing field. Every time you hit one of these playing lights (Illustrating), you advance your bonus one time. In order to take that bonus off, the ball has to drop through this playing field here. (Indicating) When you hit 1, 2, 3, 4, you light up a double-feature bonus, one hundred thousand, which enables you to collect two hundred thousand on your bonus. When you hit your 5 and 6, you enable yourself to collect triple your ordinary bonus on the single." Some players make consistently higher scores than others. "If a person walks in a place now and then and puts a nickel in the machine, he has no idea as to how the machine reacts when the ball hits a bumper. He can study the combinations, know where the ball is going to hit, know where he wants to put the ball and know how to put it there. Some person might put a nickel in and the ball rolls in and you don't get anything. You have to know how to operate the machine in order to get a score. * * * The skill comes in when you want to hit a certain light, you have to know how hard to pull your plunger and how far to let your ball go to hit that light. If you don't know, naturally, you will not hit that light." After the ball has been released by the plunger and when the ball starts down the playing field the player can guide it. "There is such a thing as shaking a pin ball machine. If you stand and let the machine idle it will strike a bumper with less force and rebound with less force than if you push the machine. * * * It can be used as a gambling device. * * * When you play your ball on your playing field, you strike certain lights. If you will watch these columns, they advance. (Indicating and illustrating) When you go through this slot, you get a single bonus. You light 1, 2, 3, 4, for a double bonus; light 5 and 6, you will have a triple bonus, which will give you three hundred thousand." "Flippers" enable a player to utilize visual timing or physical timing to influence the course of the ball. "If you know how to operate the machine, you can catch the ball (with "flippers"), throw it up in the playing field and use it again. You have buttons on the sides. * * * If you strike one bumper and want to hit a certain number, if you don't shake the machine, it will glance, but if you shake the machine, it will go up and give you the object which you want to obtain." In demonstrating the machine the witness won eleven free games, which gave him fifty-five free balls to play without putting up any more money. The score of a player is recorded on the back-board. 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. Plaintiff also offered in evidence slot machines, pull boards, punch boards, and other gambling devices, for the purpose of comparison with the machines sold by the plaintiff.

It is plaintiff's contention that his machines are not gambling devices, per se, and that for this reason the General Assembly of South Carolina has no right to declare them to be such.

The Supreme Court of South Carolina in Alexander v. Martin, Sheriff, 192 S.C. 176, 6 S.E.2d 20; in Alexander v. Hunnicutt, Sheriff, et al., 196 S.C. 364, 13 S.E.2d 630; and in State v. Appley, 207 S.C. 284, 35 S.E.2d 835, 162 A.L.R. 1184, decided that coin operated non-payout pin tables with free play feature were gambling machines per se under the statute, and were subject to seizure and destruction as such. In Ingram et al. v. Bearden 47 S.E.2d 833, the State Supreme Court again held that coin operated non-payout pin tables with free play feature were gambling devices per se, subject to seizure and destruction, and that the licensing Act of 1947 did not render such machines, or their operation, legal.

In Alexander v. Martin, Sheriff, 192 S.C. 176, 6 S.E.2d 20, 23, the South Carolina Supreme Court gave its reasons for declaring coin operated non-payout pin tables with free play feature gambling devices per se in the following words:

"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 of contingency, dependent upon chance, and would make of the machine an unlawful device, inasmuch as the law above quoted condemns all vending or slot machines or other devices pertaining to games of chance, which display different pictures, words or symbols at different plays, or different numbers, whether in words or figures, or which deposit tokens or...

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  • State v. One Hundred and Fifty-Eight Gaming Devices, FIFTY-EIGHT
    • United States
    • Court of Appeals of Maryland
    • September 1, 1984
    ...(1939); Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973, 977 (1983); Holliday v. Governor of State of South Carolina, 78 F.Supp. 918, 924-25 (W.D.S.Ca.1948), aff'd, 335 U.S. 803, 69 S.Ct. 56, 93 L.Ed. 360 (1948).11 In several of these cases, the court declared ......
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    ...regulations enacted for the public health, morals and safety"), aff'd , 575 F.2d 298 (5th Cir. 1978) ; Holliday v. Governor of S.C. , 78 F. Supp. 918, 925 (W.D.S.C. 1948) (denying injunction and dismissing takings claim challenging South Carolina law prohibiting certain gambling machines be......
  • Vaughan v. Dowling
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    ...to side wagers. The owner could easily agree to pay off the winner with money instead of playing balls.' Holliday v. Governor of State of South Carolina, D.C., 78 F.Supp. 918, affirmed 335 U.S. 803, 69 S.Ct. 56, 93 L.Ed. 360. See, 38 C.J.S. Gaming § 96, p. 157 et seq.; 148 A.L.R., p. 892. P......
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