Summary
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.
Summary of this case from Holliday v. Governor of State of South CarolinaOpinion
16069
April 26, 1948.
Appeal from County Court of Greenville County; W.B. McGowan, Judge.
Action by H.L. Ingram and others against R.H. Bearden, sheriff of Greenville County, to enjoin defendant from seizing and confiscating certain pin ball machines. From an order denying injunctive relief, vacating a temporary restraining order, and dismissing the complaint, plaintiffs appeal.
Affirmed.
Messrs. Price Poag, of Greenville, for Appellants, cite: As to what coin-operated machines are not gambling devices: 196 S.C. 364, 13 S.E.2d 630. As to repeal of Statute by implication: 2 S.C. 538; 204 S.C. 275, 28 S.E.2d 852. Mr. J.D. Todd, Jr., of Greenville, for Respondent, cites: As to coin-operated pin ball machines being gambling devices: 192 S.C. 176, 6 S.E.2d 20; 196 S.C. 364, 13 S.E.2d 630; 207 S.C. 284, 35 S.E.2d 835. As to statute taxing certain devices being valid even though device is declared unlawful by subsequent statute: 183 So. 185, 118 A.L.R. 822; Anno. 118 A.L.R. 827; 120 Tenn. 470, 111 S.W. 925.
Mr. John G. Dinkins, of Manning, for H.C. Keels, Jr., Amicus Curiae, cites: As to the presumption, when construing Statutes, that the General Assembly did not intend to do a futile thing: 177 S.C. 286, 181 S.E. 30. As to the governing principle of statutory construction being to ascertain and give effect to the legislative intent: 177 S.C. 286, 181 S.E. 30; 180 S.C. 491, 186 S.E. 395; 204 S.C. 275, 28 S.E.2d 850; 206 S.C. 481, 34 S.E.2d 792; (S.C.) 41 S.E.2d 868.
Mr. J.D. Todd, Jr., of Greenville, for Respondent, in reply to Amicus Curiae, cites: As to machines, in which the scores recorded are not uniform, being gambling machines per se: 196 S.C. 364, 13 S.E.2d 630.
BAKER, C.J., and TAYLOR, J., dissenting.
Order of Judge McGowan follows:
The plaintiffs bring this action to enjoin the defendant, R.H. Bearden, as Sheriff of Greenville County, from seizing and confiscating certain so-called pin ball machines owned and operated by the plaintiffs. The matter was heard upon the merits on August 15, 1947. No testimony was offered, the parties having agreed upon the basic facts necessary to frame and present the legal issues for determination. It was conceded that the machines in question are similar to the one involved in the case of Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20, and is the particular type of machine designated in the 1947 Act of the General Assembly as "coin operated non-payout Pin Tables with free play feature." 45 Stat. at Large, p. 592.
The defendant asserts that said machines are gambling devices, having been so declared in the Alexander case, supra, and are, therefore, outlawed and subject to confiscation under the provisions of section 1301-1 of the 1942 Code.
The plaintiffs rely upon said 1947 Act of the General Assembly, approved May 19 (R-605) (H-274) (S-402), contending that the General Assembly thereby intended to legalize the ownership and operation of the machines in question.
The single question thus presented is, what effect, if any, does the 1947 Act have upon the prior governing law of the State in so far as it relates to the lawful character of said machines? And that question naturally turns upon the intention of the legislative body.
Section 1301-1 of the 1942 Code is as follows:
"(1) Certain machines excepted. — It shall be unlawful for any person, firm, or corporation to keep on his, her, or its premises, or operate or permit to be kept on his, her, or its premises, or operated within this State, any vending or slot machines, punch boards, pull boards, or other devices pertaining to games of chance 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. * * *"
The 1947 Act is as follows:
"Section 1. (a) That every person, firm or corporation owning, operating or maintaining any place of business or other place, wherein or in connection with which, is operated or located any machine for the playing of music, games or amusements, operated by a slot wherein is deposited any coin or thing of value or any machine in which is kept any article to be purchased by depositing any coin or thing of value, or any coin operated non-payout Pin Tables with free play feature shall apply for and procure from the South Carolina Tax Commission a license for the privilege of operating any and every such machine and shall pay for such license a tax of Fifteen ($15.00) dollars per machine; * * *."
It is insisted by the plaintiffs that the legislature by the 1947 Act re-declaring and enlarging upon the 1939 licensing Act, Act 346 of the 1939 Acts, 41 Stat. at Large, p. 568, intended to modify or amend section 1301-1 to the extent of excepting from its operation the machines in question in that this particular type of machine is specifically designated in detail as to its operation among the machines required to be licensed. The 1939 Act makes no such particular designation of any machine. It merely required in general terms the licensing of any coin operated machine for playing of music, games, or amusements and vending machines. The 1947 Act employs this same general designation of the machines required to be licensed as did the 1939 Act, and immediately thereafter adds the following:
"or any coin operated non-payout Pin Tables with free play feature."
Both Acts conclude with the positive direction that the licensing of any machine thereunder shall not make lawful the operation of any gambling machine or device the operation of which is made unlawful under the laws of this State.
The type of Pin Table machine in question was declared to be a gambling device per se in the Alexander case, supra, and because of that fact was subject to confiscation under said section 1301-1 of the 1942 Code. In that connection the Court held that the required licensing of said machine under the general designation of machines for playing of games or amusement employed by the 1939 Act shall not be given the effect of amending section 1301-1 so as to exclude that machine, a gambling device, from the scope and operation of said section. Quoting from the Alexander case at page 24 of 6 S.E.2d:
"It is claimed by petitioners that if the machines come within the purview of Section 1301-A, the Statute has been amended by Act 346, Acts of 1939, which authorizes a license tax on machines for the playing of music, games, or amusement, operated by a slot wherein is deposited any coin or thing of value. We think there is no merit in this contention. The Act of 1939, subsection (5), page 653, already quoted, provides that the issuance of the license by the South Carolina Tax Commission, `shall not make lawful the operation of the gambling machine or device, the operation of which is made unlawful under the laws of this State'. This provision clearly forbids the operation of a slot machine despite the fact that it be licensed, if it is unlawful under the laws of the State, whether it be played for amusement or otherwise.
"The licensing of these machines by the State Tax Commission cannot make a lawful machine out of a gambling device, and the payment of the license does not authorize the operation of machines which come within the prohibition of Section 1301-A. Hinkle v. Scott, 211 N.C. 680, 191 S.E. 512; Keeney v. State, 64 Ga. App. 239, 187 S.E. 592."
It is difficult to see how the 1947 Act could afford the licensee any additional protection, notwithstanding the particular, rather than the general description of said type of machine adopted there. As already pointed out, both Acts conclude with the declared purpose not to legalize any unlawful machine.
In my judgment, the Alexander case should control the instant case, unless it could be said that the legislature intended to amend section 1301-1 by the 1947 Act in the particular insisted upon.
Counsel forcibly and plausibly argued that the 1947 General Assembly intended to modify the prior law with the view of throwing the cloak of immunity and legality around the machine in controversy, otherwise it would have had no reason or purpose for enlarging upon the 1939 Act by specifically designating and describing the type of machine in question.
Said machine was definitely outlawed and subject to confiscation under the then existing or prior law. It is to be taken that the General Assembly was aware of that fact. The further presumption is that it did not intend to do a vain or futile thing. Graham v. State, 109 S.C. 301, 96 S.E. 138; Gaffney v. Mallory, 186 S.C. 337, 195 S.E. 840.
Assuming that the preliminary portion of the 1947 Act is susceptible of the apparent or presumed intention ascribed to it by the plaintiffs, it must yield to the intent expressly declared to the contrary in the concluding provisions, to wit, that the licensing of any machine thereunder should not make lawful the operation of any gambling machine or device, the operation of which is made unlawful under the laws of this State. City of Greenville et al. v. Query, 166 S.C. 281, 164 S.E. 844; Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22; Jolly v. Atlantic Greyhound Corporation, 207 S.C. 1, 35 S.E.2d 42.
For the foregoing reasons, I have concluded that the 1947 Act is not to be given the effect of amending section 1301-1 of the 1942 Code so as to legalize and except the machine in question from its application.
The only other intention the legislature could have had was to impose a license tax on a particular gambling device for the privilege of operating the same, with no protection to the licensee in the enjoyment of the privilege thus purported to be granted. In fact that was the general intention of the 1939 Act. There, it was contemplated that one procuring a license for the operation of a gambling device did so at his peril, yet he was required to take out the license on the machine as one for the playing of games or amusement.
While it seems somewhat paradoxical that the State should pursue that policy, such so-called license taxes are sustained by the weight of authority from other jurisdictions. See Casmus v. Lee, State Comptroller, 236 Ala. 396, 183 So. 185, 118 A.L.R. 822 and the accompanying annotations. Such license taxes are referable to the police power with the view of discouraging and suppressing the operation of gambling devices, rather than to the taxing power for revenue purposes. However, in the opinion of some of the courts the tendency of this policy is to encourage rather than discourage the evil sought to be avoided. Thompson v. Hall, 104 W. Va. 76, 138 S.E. 579. The foregoing observation is pertinent in that said authorities, together with the Alexander case, supra, demonstrate the proposition that the mere licensing of a particular gambling device is not, of itself, to be given the effect of legalizing the ownership and operation of same.
It is, therefore, ordered that the injunctive relief sought in this proceeding be, and the same is here denied. Accordingly, the temporary restraining order heretofore issued is vacated, and the complaint dismissed.
April 26, 1948.
FISHBURNE, J.: For the reasons well stated in the order appealed from, all exceptions are overruled and the order is adopted as the opinion of the Court. Let it be reported.
STUKES and OXNER, JJ., concur.
BAKER, C.J., and TAYLOR, J., dissent.
The appellants, plaintiffs below, are the owners of a coin operated device commonly known as a pin table. The special characteristic of this machine, as far as pertinent to the present case, is that it has a "free play feature"; that is to say, when the player achieves a certain score the machine automatically gives him a free game. It is admitted that the machine does not pay off in money or tokens.
The respondent, Sheriff of Greenville County, deemed this machine to come within the prohibitions of the gaming statutes and confiscated the same. Thereupon the present action was brought to enjoin the respondent and his deputies from confiscating other machines of a similar type owned and operated by the appellants and to require the respondent to restore the above mentioned machine to the appellants.
The pleadings disclose no material factual dispute between the parties. The matter was heard on the pleadings before the County Judge of Greenville County at a hearing under an order nisi for relief pendente lite. A final order was made in the case, the effect of which is to hold that the operation of machines of the character in question is per se outlawed, and that the machines are subject to confiscation. This holding is predicated by the County Judge upon the decisions of this Court in the cases of Alexander v. Martin, 192 S.C. 176, 6 S.E.2d 20, and Alexander v. Hunnicutt, 196 S.C. 364, 13 S.E.2d 630, and upon the provisions of Section 1301 and 1301-1 of the Code of 1942, and Act No. 284 (p. 592) of the Acts of 1947.
Two distinct legislative factors are involved in the Alexander cases and also in the present case.
(1) The code sections above referred to render it unlawful to operate "any vending or slot machine, punch boards, pull boards, or other devices pertaining to games of chance 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." (Emphasis added.)
(2) The 1939 State Appropriation Act (sec. 101 (1) (a), 41 Stat. at Large, p. 650) provides that no machine "for the playing of music, games or amusements, operated by a slot wherein is deposited any coin or thing of value" shall be operated unless a license is procured from the South Carolina Tax Commission authorizing such operation; the operator is required to pay a stated license fee for each machine. Another provision of the same Act ( ibid, p. 653) is to the effect that the issuance of a license "shall not make lawful the operation of the gambling machine or device, the operation of which is made unlawful under the laws of this State." (Emphasis added.)
As construed by this Court in the two Alexander cases above cited, the 1939 Act must be applied in connection with the construction and application of Sections 1301 and 1301-1 of the Code, with the result that a machine may still be deemed to be unlawful, even though its operation is licensed by the South Carolina Tax Commission, in the event that the machine is found to violate the provisions of the Code Sections above referred to.
The provisions of the 1939 State Appropriation Act above referred to were re-enacted in successive years through the year 1946. See, for example, Acts 1945, 44 State. at large, 379, p. 489; Acts 1946, 44 Stat. at Large, 1581, p. 1704.
Since the machines involved in the Alexander cases were of the precise character of those involved in the present case, it follows from the foregoing that in the absence of a change in the statutory situation, those cases are controlling, and have the effect of outlawing the machines now in question.
But the above stated provisions of the 1939 and later Appropriation Acts were not re-enacted in the State Appropriation Act of 1947. Instead, the substance of those provisions was incorporated by the General Assembly in a special and separate Act enacted in 1947 (Act No. 284, p. 592). This Act re-enacts the provision of the earlier annual Appropriation Acts that the operator of slot machines shall obtain a license for every machine, and pay a stated license fee, with the express reservation that the issuance of a license shall not validate the operation of any gambling machine or device, "the operation of which is made unlawful under the laws of this State." (Emphasis added.) However, the statute introduces a new element in the situation by dealing specifically with "any coin operated non-payout Pin Tables with free play feature * * *" viz.:
"That every person, firm or corporation owning, operating or maintaining any place of business, or other place, wherein or in connection with which, is operated or located any machine for the playing of music, games or amusements, operated by a slot wherein is deposited any coin or thing of value or any machine in which is kept any article to be purchased by depositing any coin or thing of value, or any coin operated non-payout Pin Tables with free play feature shall apply for and procure from the South Carolina Tax Commission a license for the privilege of operating any and every such machine and shall pay for such license a tax of Fifteen ($15.00) dollars per machine; * * *." (Emphasis added.)
Thus, under the present statute law of the State the prohibition is against operating a slot machine wherein is deposited any coin or thing of value "or any coin operated non-payout Pin Tables with free play feature" without procuring a license and paying the required license fee.
Obviously, as to slot machines other than pin tables of the character in question, it is still true that the licensing of a machine does not (under the Alexander cases) absolve the operator from the necessity of establishing that the operation of the machine does not violate Sections 1301 and 1301-1 of the Code; but where the particular machine is a "coin operated non-payout Pin Table(s) with free play feature," the effect of the statute is to specifically provide for the operation of such a machine upon the procurement of and payment for a license.
In other words, as far as pin tables of the character involved in the present case are concerned, the 1947 statute expressly provides that a person operating such a machine must procure a license as a condition of such operation. When he does this, he is complying with the specific provisions and directions of the 1947 Act. To hold that in the face of such a statutory situation the operation of a free play pin table may be declared by us to be a violation of law would be virtually to repeal by judicial construction the applicable language of the 1947 Act and to deprive that Act, to the extent of its specification of free play pin tables, of all legislative meaning.
To express the matter another way: when the Alexander cases were decided it was for this Court to say whether free play pin tables involve the elements of chance which are condemned by Sections 1301 and 1301-1 of the Code; and when we concluded that they did, it was merely a case of applying to the situation the statutory direction that the obtention of a license from the South Carolina Tax Commission did not validate the operation of machines which otherwise we found to be illegal gambling devices. But when, through the 1947 Act, the General Assembly undertook in specific language to provide for the licensing of the free play type of machine with which we are here concerned, and which was involved in the Alexander cases, it is wholly beyond our sphere to enter into any discussion as to whether such machine is to be deemed a device of a gambling nature, the operation of which is prohibited by the Code.
The applicable sections of the Code must obviously be deemed to be amended by the 1947 Act through the interpolation into it of a provision (conforming with the last legislative expression on the subject) that the operation of free play pin tables is lawful when the machines have been duly licensed.
As said by this Court in Hancock v. Southern Cotton Oil Company, 211 S.C. 432, 45 S.E.2d 850, 853:
"The paramount consideration and controlling factor in the interpretation of a statute is the intent of the Legislature, and each enactment of the Legislature is to be construed in the light of its own context. This legal precept is too well settled to require citation of authorities."
And again, in Greenville Enterprise, Inc., et al., v. Jennings et al., 210 S.C. 163, 41 S.E.2d 868, 869, we said:
"All rules for statutory construction are servient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and must be construed in the light of the intended purpose. * * *" (Citing authorities.)
Some definite legislative purpose must be ascribed to the 1947 Act, insofar as pin tables are concerned. If the purpose was not the one expressed above, it is difficult to see what the purpose could have been. It was the intendment of the Legislature to do one of two things; either to legalize a coin operated non-payout pin table, with free play feature, or to construct and set a deadfall for the unwary and credulous. We reject the latter.
The views hereinbefore expressed are limited to the precise character of machines described in this opinion, and to the operation of such machines in a lawful manner. A coin operated non-payout pin table, with the free play feature, conceivably could be so constructed and operated as to involve an element of gaming or chance condemned by the Code sections above referred to. But the record before us involves no such considerations.
It follows that the order of the County Court dismissing the complaint and denying injunctive relief as prayed therein should be reversed, and the case remanded to the County Court for further proceedings in accordance with the foregoing.
TAYLOR, J., concurs.