I promise my dissent in this case upon what appears to me a reasonable construction of the language, "Pertaining to games of chance of whatever nature or kind"; and the difference, logical and inherent, between the lawful and unlawful use of a lawful thing. Evil can be made of lawful commerce as the difference between ticker tape spelling out during each business day the nation's commerce; and betting on prices of stocks and results of ball games shown by the same machine. Nor do I think the game can be declared as not involving skill of the player, and so protected. While there are affidavits in the record that the operation of these machines is purely a game of chance and involves no element of skill, such affidavits were based on the fact that affiants had played these machines a few times and were unable to determine in advance the probable score. Many a person plays french pool on the same basis, but nevertheless, french pool is admittedly a game of skill. If a record contained affidavits that certain streams of water (natural water courses) flowed uphill, we could not so find in the face of common knowledge that water does not so flow.
The Legislature intended to legalize such machines as were not per se gambling machines. Of course, all of these machines are potential gambling devices in the same light that all automobiles are potential "deadly weapons."
One is reminded of a humorous article appearing some years ago in one of the nation's great periodicals which could well have been headed, "Person up and Person down." In playing this game two rural residents on the top floor of a large hotel of one of the country's great cities bet on whether the greater number of people would pass along the street in one direction or another. The game of chance so played went up and down and waxed closer and closer until the lunch hour when everyone seemed to go in the same *Page 187 direction. Then a band appeared in the center of the street below playing martial airs and attracted the crowd in the opposite direction. The question to be decided was not the gambling of the two contestants, but whether the hotel, the dinner hour, or the band was responsible for the result and to be condemned.
So it seems to me that unlawful acts of third parties are used to condemn a machine lawful under the Statute and so licensed after investigation by a department of our State Government. Nothing inherent in the machine is wrong. Unlawful acts of those who violate another Statute are made the criterion of the unlawfulness of the machine.
It appears to me that a reasonable and proper construction of the wording of the Acts protects the petitioner in the claim of right that he asserts; and that a machine must be, as aforesaid, per se unlawful before subject to confiscation. Betting on the side on games of pool, backgammon or chess should not condemn the games, even were they not expressly excepted by the terms of the Statute; nor should football be stopped because onlookers wager. Otherwise, the lawful acts of one are condemned by the unlawful acts of his neighbor.
Though involving different facts and a different Statute, the present case appears not near so strong on the general subject of gaming as Darlington Theatres, Inc. v. Coker,190 S.C. 282, 2 S.E.2d 782, in which a more reasonable construction of the Statute appears to have been made.
MR. JUSTICE BONHAM concurs.