State v. Kizer

• Decision Date: 21 January 1932
• Docket Number: 13333.
• Citation: 162 S.E. 444,164 S.C. 383
• Parties: STATE ex rel. ATTORNEY GENERAL v. KIZER et al.
• Court: South Carolina Supreme Court

162 S.E. 444

164 S.C. 383

STATE ex rel. ATTORNEY GENERAL v. KIZER et al.

No. 13333.

Supreme Court of South Carolina

January 21, 1932

Action in the original jurisdiction of the Supreme Court by the State, on the relation of the Attorney General, against A. R Kizer and others, seeking an injunction .

Injunction granted.

John M Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst Attys. Gen., for plaintiff.

BLEASE, C.J.

This action, brought in the original jurisdiction of this court, seeks an injunction to prevent the defendants, either directly or indirectly, from operating, or attempting to operate, or to have others to operate, unlawful slot machines in this state, and also to enjoin them from interfering with the law enforcement officers in enforcing the statutes of the state relative to unlawful slot machines.

The complaint of the plaintiff, which is of considerable length, briefly summarized, alleges that the defendants and others have been operating, and are continuing to operate, in violation of the law, slot machines within this state; that they have conspired, and are conspiring, to violate the criminal laws regarding slot machines; and that they have been, and are, making a concerted effort to hinder and embarrass the peace officers of the state and to prevent them from enforcing the laws by bringing numerous injunction suits in both the state and federal courts.

We gather from the record that the defendants, A. R. Kizer, J. R. Williams, B. W. Biggs, Robert Harvie, L. D. Goore, O. P. Jamison, L. S. Hand, B. T. Brown, Goore Sales Company, Goore-Manus Company, Dixie Sales Company, and W. D. Kelley, have been properly served with the summons and complaint in the action. Except the parties named, no other person has been served.

The only defendant who has made answer to the complaint is O. P. Jamison. He contends that the machines operated by him are not in violation of law, and that the statutes under which the proceedings are brought, section 196, Criminal Code of 1922, and Act No. 264, page 367, of the Acts of 1931, are unconstitutional, null, and void, in that they are in conflict with the Constitution of this state and that of the United States.

One of the machines operated by the defendant, Jamison, was brought before the court for inspection and examination. We are convinced that it is an unlawful slot machine under our decision in Harvie v. Heise, etc., et al., 150 S.C. 277, 148 S.E. 66.

The constitutionality of the "Slot Machine Statutes" was recently passed upon by a "Three Judge Court," in the District Court of the United States for the Western District of South Carolina, in the case of E. M. Durant, Plaintiff, v. N. L. Bennett, Sheriff of Spartanburg County, et al., Defendants, and the case of A. R. Kizer (one of the defendants here), plaintiff, against the same defendants, 54 F. (2d) 634. In those cases, the statutes were held to be constitutional, the opinion of Hon. J. Lyles Glenn, United States District Judge, being concurred in by Hon. John J. Parker, United States Circuit Judge, and Hon. H. H. Watkins, United States District Judge.

The temporary injunctions granted in the federal court, involving the same kind of slot machines in many instances referred to in this proceeding, were dismissed by the "Three Judge Court," and the conduct of the slot machine operators, both as to the operation of the machines and the manner in which they had used and abused the process of the federal court, was severely condemned.

This court is entirely satisfied with the very able opinion of Judge Glenn, which we take the liberty to adopt as our opinion, and a copy of it, which is hereto attached, will be reported.

While this court dislikes to resort to the harsh remedy of injunction to enforce the criminal laws of the state, and would prefer not to use that process in any way to prevent trial by jury, we are forced to feel that the persons who have been operating unlawful slot machines in this state, including several of the defendants in this action, have shown very little respect for the laws and the courts; that they have not sought, as they might have done, trial by jury, but themselves have endeavored time after time to prevent such trials by applications for writs of injunction. As pointed out in the opinion of Judge Glenn, if a slot machine operated by one of them is not prohibited by law, the owner or operator has the right to recover in the courts of this state, under the statutes, such machine, when it has been seized by a peace officer, and he has further redress if his property rights are invaded.

This court, of course, should not grant injunctions against parties who have not been served with the process in the cause, and to that extent the prayer of the complaint is denied. The defendants who have been served, however, should not continue to operate slot machines in violation of the law, and the injunction as to them, prayed for, is granted.

The opinion of Glenn, United States District Judge, is as follows:

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...