MISSISSIPPI GAMING COM'N v. Henson

• Decision Date: 06 September 2001
• Docket Number: No. 1999-CA-00422-SCT, No. 1999-IA-00911-SCT.
• Citation: 800 So.2d 110
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI GAMING COMMISSION and Mike Moore, Attorney General of the State of Mississippi v. Susan HENSON d/b/a Gene's Amusement, Lance Foster d/b/a Mojo Amusement, James (Frank) Wade d/b/a Frank's Amusement, Gary Simpson d/b/a All Fun and Games, Neal Roberts d/b/a General Amusement, Robert Knight d/b/a Bob's Amusement, Jerry Turner d/b/a Trailblazer's Truck Stop & Restaurant, Katherine McAlphine d/b/a L.C.J.'s, Gerald Nolan d/b/a Nolan's Grocery, and Greg Driskill d/b/a Tri-County Game Room. Mississippi Gaming Commission v. Stanley Wright and SD Amusements of Mississippi, Inc.

800 So.2d 110

MISSISSIPPI GAMING COMMISSION and Mike Moore, Attorney General of the State of Mississippi v. Susan HENSON d/b/a Gene's Amusement, Lance Foster d/b/a Mojo Amusement, James (Frank) Wade d/b/a Frank's Amusement, Gary Simpson d/b/a All Fun and Games, Neal Roberts d/b/a General Amusement, Robert Knight d/b/a Bob's Amusement, Jerry Turner d/b/a Trailblazer's Truck Stop & Restaurant, Katherine McAlphine d/b/a L.C.J.'s, Gerald Nolan d/b/a Nolan's Grocery, and Greg Driskill d/b/a Tri-County Game Room.

Mississippi Gaming Commission v. Stanley Wright and SD Amusements of Mississippi, Inc.

Nos. 1999-CA-00422-SCT, 1999-IA-00911-SCT.

Supreme Court of Mississippi.

September 6, 2001.

Rehearing Denied November 29, 2001.

Office of the Attorney General by R. Stewart Smith, Jr., for Appellants in No. 1999-CA-00422-SCT.

Daniel K. Tucker, Joseph C. Langston, Booneville, for Appellees in No. 1999-CA-00422-SCT.

Joan Myers, Jackson, for Appellant in No. 1999-IA-00911-SCT.

John H. Cox, III, Greenville, for Appellees in No. 1999-IA-00911-SCT.

EN BANC.

BANKS, Presiding Justice, for the Court:

¶ 1. These consolidated appeals concern the propriety of the Mississippi Gaming Commission's seizure of certain amusement devices. Because we conclude that the machines in question, the "Cherry Master Video" and the "Quarter Pusher," are slot machines and as such, illegal gambling devices subject to seizure by the Gaming Commission, we reverse the judgments of the courts below and render judgment for the Commission.

I.

¶ 2. On March 20, 1998, Susan Henson, d/b/a Gene's Amusement, Lance Foster d/b/a Mojo Amusement, James (Frank) Wade d/b/a Frank's Amusement, Gary Simpson d/b/a All Fun and Games, Neal Roberts d/b/a General Amusement, Robert Knight d/b/a Bob's Amusement, Jerry Turner d/b/a Trailblazer's Truck Stop & Restaurant, Katherine McAlphine d/b/a L.C.J's Gerald Nolan d/b/a Nolan's Grocery, and Greg Driskel d/b/a Tri-County Game Room, (hereinafter "Henson") filed a Bill of Peace on behalf of themselves and all those similarly situated, seeking clarification and interpretation of current Mississippi gaming laws as to the criteria for determining the legality of certain amusement devices owned and/or leased by the appellees and seized by the Mississippi Gaming Commission, on the grounds that they were illegal gambling devices.

¶ 3. Following a trial, the Chancery Court of Union County entered a judgment finding that the statute in question, Miss.Code Ann. § 75-76-5(ff) (2000), requires proof of a payoff before the Mississippi Gaming Commission can seize a machine under Miss.Code Ann. § 97-33-7(1) (2000). Aggrieved, the Gaming Commission appealed the chancellor's decision to this Court.

¶ 4. On February 3, 1999, Stanley Wright, owner of eight amusement companies located in Washington County, filed a complaint and affidavit for replevin in the Circuit Court of Washington County after the Gaming Commission seized machines from his establishments on January 21, 1999.

¶ 5. In acknowledgment of the Union County Chancery's Court's ruling, the Washington County Circuit Court entered an order requiring the Gaming Commission to return to Wright all machines seized, with the exception of two that were said to have involved payoffs. The court held in abatement, however, a final ruling on the matter until such time as this Court ruled on the appeal from Union County Chancery Court and made a final determination as to whether the machines in question constituted illegal gambling devices.

¶ 6. Aggrieved by the circuit court's order, the Mississippi Gaming Commission filed and was granted interlocutory review of the matter, and the Wright case was subsequently consolidated with the Henson case.

II.

¶ 7. The central legal issue presented in these cases is whether Miss.Code Ann. § 75-76-5(ff)(2000) requires proof of a payoff before a machine is subject to seizure under Miss.Code Ann. § 97-33-7(1)(2000). We conclude that where the elements of consideration and chance are present, Miss.Code Ann. § 75-76-5(ff) requires only that machines possess the "potential for reward" to be considered a slot machine subject to seizure and destruction under Miss.Code Ann. § 97-33-7(1).

¶ 8. Section 97-33-7(1) of the Mississippi Code provides in pertinent part as follows:

(1) It shall be unlawful for any person or persons, firm, copartnership, or corporation to have in possession, own, control, display, or operate any cane rack, knife rack, artful dodger, punch board, roll down, merchandise wheel, slot machine, pinball machine, or similar device or devices. Provided, however, that this section shall not be so construed as to make unlawful the ownership, possession, control, display or operation of any antique coin machine as defined in Section 27-27-12, or any music machine or bona fide automatic vending machine where the purchaser receives exactly the same quantity of merchandise on each operation of said machine. Any slot machine other than an antique coin machine as defined in Section 27-27-12 which delivers, or is so constructed as that by operation thereof it will deliver to the operator thereof anything of value in varying quantities, in addition to the merchandise received, and any slot machine other than an antique coin machine as defined in Section 27-27-12 that is constructed in such manner as that slugs, tokens, coins or similar devices are, or may be, used and delivered to the operator thereof in addition to merchandise of any sort contained in such machine, is hereby declared to be a gambling device, and shall be deemed unlawful under the provisions of this section. Provided, however, that pinball machines which do not return to the operator or player thereof anything but free additional games or plays shall not be deemed to be gambling devices, and neither this section nor any other law shall be construed to prohibit same.

(2) No property right shall exist in any person, natural or artificial, or be vested in such person, in any or all of the devices described herein that are not exempted from the provisions of this section; and all such devices are hereby declared to be at all times subject to confiscation and destruction, and their possession shall be unlawful, except when in the possession of officers carrying out the provisions of this section. It shall be the duty of all law— enforcing officers to seize and immediately destroy all such machines and devices.

. . . .

Miss.Code Ann. § 97-33-7(1) (2000) (emphasis added).

¶ 9. Our Court has previously held that the mere possession of an illegal gambling device, such as a slot machine, is enough for a violation of the above statute. Stevens v. State, 225 Miss. 48, 82 So.2d 645 (1955); Clark v. Holden, 191 Miss. 7, 2 So.2d 570 (1941).¹ The operative term, however, is not defined in the statute, and so we turn to Section 75-76-5(ff) of Mississippi's Gaming Control Act, which offers the following definition:

"Slot machine" means any mechanical, electrical or other device, contrivance or machine which, upon insertion of a coin, token or similar object, or upon payment of any consideration, is available to play or operate, the play or operation of which, whether by reason of the skill of the operator or application of the element of chance, or both, may deliver or entitle the person playing or operating the machine to receive cash, premiums, merchandise, tokens or anything of value, whether the payoff is made automatically from the machine or in any other manner. The term does not include any antique coin machine as defined in Section 27-27-12.

Miss.Code Ann. § 75-76-5(ff) (2000).

¶ 10. Three essential elements can be extrapolated from the above language: consideration, value, and the potential for reward. Thus, a device is clearly a slot machine of the type prohibited under Section 97-33-7 if:

1. Its play or operation requires the insertion of money, tokens or similar objects, or payment of consideration; and

2. As a result of playing or operating the device, the player or operator has the potential to win a reward in the form of cash, premiums, merchandise, token, or anything of value; and

3. The winning of some part or all of the potential reward is dependent in substantial part on an element of chance.

¶ 11. The Court recognizes that the definition of slot machines provided in Section 76-75-5(ff) of the Gaming Control Act is broader than that applied by this Court in pre-Gaming-Control Act cases. In Rouse v. Sisson, 190 Miss. 276, 282, 199 So. 777, 778 (1941), for example, in order for a device to be subject to the provisions of [Chapter 353, Laws of 1938, the predecessor to] Section 97-33-7, an uncontrolled and uncontrollable chance must have existed. As a result, those devices in which the outcome was determined solely by skill were not prohibited. Under the Gaming Control Act, however, "whether by reason of the skill of the operator or application of the element of chance, or both," amusement devices satisfying the elements of consideration and payoff are deemed illegal gaming devices and seized accordingly. Miss.Code Ann. § 75-76-5(ff) (2000).

¶ 12. The amusement devices seized by the Mississippi Gaming Commission here include the "Cherry Master Video" and "Quarter Pusher" games. The "Cherry Master Video" is an electronic machine that displays a series of nine symbols (e.g., cherries, bananas, other fruits, etc.) in a three-by-three matrix format of rows and columns. The symbols form three lines horizontally, three vertically, and two diagonally, for a total of eight lines. The machine requires the insertion of money to play which is then converted into credits, generally at a conversion rate of one credit for every five cents inserted.

¶ 13. To initiate play, the player pushes a button on the machine to place a bet. The player can bet multiple credits on each play of the machine, thereby increasing the number of lines that are subject to winning combinations and...