Supreme Court of South Carolina, 1919

Griste v. Burch

Supreme Court of South Carolina · Decided June 23, 1919 · Chius, Gary, Fraser, Gage, Watts, Hydrick

99 S.E. 703; 112 S.C. 369; 1919 S.C. LEXIS 100 (South Eastern Reporter)

Counsel

Mr. S.M. Wetmore , for appellant, submits: That while the machine is not a gambling device, for the purchaser gets full value of his mode, yet it is operated in violation of law, in that it is not "so constructed as to give a certain uniform and fair return in value for each coin deposited therein: Criminal Code of South Carolina 1912, sec. 490. Now, as to the other question, as to whether or not the sheriff has the right to confiscate such machine? Perhaps, technically, he has not such a right, as the statute does not provide for confiscation, but if the machine is unlawful, and designed to be Mr. J.D. Gilland , for respondent, submits: That the Circuit Judge erred in his construction of the term "uniform" as employed in section 490 of the Criminal Code of 1912: State Const. 1895, article VI, section 3; State Const. 1895, article X, section 1. The automation described in this appeal is lawful in its principle of operation and within the exceptions of the statute, but lawful or unlawful, neither the sheriff nor any other peace officer of the State, is clothed with legal authority under the statute to seize, confiscate and declare the automation forfeited in a summary manner, without plenary process: Criminal Code of South Carolina, sec. 490.

Dissenting Opinion

Mr. Justice Hydrick.

I dissent. The statute does not provide for a confiscation of the plaintiff’s property, and, therefore, the sheriff had no right to seize and keep it or to destroy it. The statute does not make it a crime for the plaintiff to have the machine in his possession, except for the purpose of operating it contrary to law. I think the judgment of the Circuit Court should be affirmed.

Mr. Justice Watts concurs with Mr. Justice Hydrick.

Concurring Opinion

Mr. Justice; Fraser,

concurring. The statute says, “keep on his premises, or operate or permit to be kept on his premises or operated.” I see nothing in the statute to indicate that “or” means “and.” To so hold is to repeal the statute as to the purchaser, and not the owner operating the machine.

Concurring Opinion

' Mr. Justice Gage.

I concur with the Chief Justice.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Chius Justice Gary.

1. For the reasons stated by his Honor, the Circuit Judge, this Court is satisfied with his conclusions that the machine is not so constructed as to give a certain and uniform return in value for each coin deposited therein. His Honor, the Circuit Judge, also ruled that there was no element or chance connected with the operation of the machine. There was no appeal from his ruling in this respect, and such question is not before the Court for adjudication.

2. The next question is whether there was error in the ruling that the plaintiff had the right to recover the possession of the machine. Both the possession and the use of the machine are made unlawful; and any person violating the provisions of the said section shall be subject to the fine therein mentioned. If the Court should allow the plaintiff to recover possession of the machine, the restored possession *374 would still be unlawful, and its possession would subject the plaintiff to a fine. Under such circumstances, the Court will not permit the use of its process. Lanahan v. Bailey, 53 S. C. 489, 31 S. E. 332, 42 L. R. A. 279, 69 Am. St. Rep. 884; Rountree v. Ingle, 94 S. C. 321, 77 S. E. 931, 45 L. R. A. (N. S.) 776, Ann. Cas. 1915a, 1002; Elder Harrison Co. v. Jervey, 97 S. C. 185, 81 S. E. 501.

In the first mentioned case, this Court quotes with approval the following language from Bank v. Owens, Pet. 539, 7 L. Ed. 508:

“No Court of justice can, in its nature, be made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country. How can they, then, become auxiliary to the consummation of violations of the law? * * * There can be no civil right when there is no legal remedy, and there can be no legal remedy for that which is itself illegal.”

Judgment modified.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.