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. *Page 401
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 *Page 402 or thing of value, or any coin operated non-payout PinTables with free play feature shall apply for and procurefrom the South Carolina Tax Commission a license for theprivilege of operating any and every such machine and shallpay for such license a tax of Fifteen ($15.00) dollars permachine; * * *."
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 thelicensing of any machine thereunder shall not make lawfulthe operation of any gambling machine or device the operationof 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 *Page 403 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 *Page 404 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 machinethereunder should not make lawful the operation of anygambling machine or device, the operation of which is madeunlawful under the laws of this State. City of Greenvilleet 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 *Page 405 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.