*1
37.7
No. 25335. Supreme Court South Carolina.
Heard Jan. 2001. Nov.
Refiled *2 Condon, Attorney General Charles M. Deputy Assistant General, Cook, Attorney Robert D. Attorney Senior Assistant General, Kaminski, Jr., General, Attorney Nathan Assistant Barrett, Columbia, appellants Christie Newman for Robert Stewart, Condon, Hembree; M. Gregory Charles M. Carter, S. Sheryl Schelin and Janet for Conway, appellant Paul Goward. S. Jr., Florence,
Saunders M. Bridges, respondent. Justice PLEICONES. appeal
This is an from circuit court order declaring that operation of gambling “day cruise nowhere” cruise) (day is not in of any violation of nine existing state criminal statutes.1 We affirm.
Facts *3 Respondent this brought declaratory judgment action to unlawful, determine whether of are its activities to and (the State).2 permanent against obtain a injunction appellants a From circuit court order declaring respondent’s actions not denying injunction,
unlawful but the appeals. the State Respondent’s day begin Horry County cruises and end at an port, and make no intervening stops. flag The States United devices, gambling vessel is with equipped including slot ma- chines, tables, table, blackjack tables, a craps roulette and poker beyond tables. ship Once the is Carolina’s three South waters, gambling mile is permitted. territorial Before the waters, vessel reenters the the is se- equipment territorial cured and unavailable for use. The on the equipment remains at all times. vessel operates “day
At least one other cruise line cruises” out of County. prosecution Charleston No been or threat- has made line(s) Charleston, against operating ened out cruise 16-19-10; 16-19-20; 16-19-30; 16-19-40; 1. S.C.Code Ann. 16- 19-50; 16-19-120; 16-19-130; 12-21-2710; and 12-21-2712. appellants capacities 2. The four have been in official sued their as state county prosecutors. law еnforcement officers and We will to refer collectively them as "The State." 380 criminal prosecu- with has been threatened respondent
while of its devices. tion seizure operations in case whether issue existing state criminal statute. violate Law
Federal decision, to necessary we In to our find explain order 1992, to federal law this area. Prior briefly review federal flag ship. See United States prohibited gambling law 1175(a).4 (2000)3; § 15 The effect § 1081 U.S.C. 18 U.S.C flag put was to U.S. vessels these federal statutes industry, cruise disadvantage passenger competitive flag from prevent foreign vessels since the statutes did was state territorial ship beyond once the offering gambling (4th Stewart, 307 waters. See Casino Ventures 183 F.3d denied, cert. Cir.1999), 120 S.Ct. U.S. Wheel, Big v. One Six (2000); United States L.Ed.2d 669 (E.D.N.Y.1997). F.Supp. 169 § 1175 of Act and Congress amended the Johnson use general prohibition its on the exceptions
created several flag any gambling device on a U.S. vessel. 1175(b). amendment, the possession § Pursuant U.S.C. of a device within territorial transport 1175(a) if not a the device remains waters is violation those only vessel and is outside territorial board the used 1175(b)(1). of this subsection Although waters. effect cruises,” section “day another permit operation was having “day with a method for cruises” remain provided states 1175(b)(2)(A). Thus, “day cruises” such a federal offense. respondent may to federal operated by as that 1175(a) if they begin under and end prosecution of which prohibit a state that “has enacted statute terms *4 Id. that use....” above, this case is whether
As noted issue respondent’s operations any existing violate state preempt to the Johnson Act do not statute. The amendments devices, Casino prohibiting gambling state laws and Act, §§ Gambling Ship U.S.C. 1081-1084. 3. Part of the Act, §§ 1171-1178. 4. Part of the Johnson U.S.C.
Ventures, supra, bearing and thus the Act has no direct However, issues before the litigation Court. while federal pertaining meaning to the of the 1992 pend- amendments was ing, General Assembly amended several of the relevant explained below, As legislature’s expres- statutes. sion of in amending intent these statutes is relevant to the issue we today. decide
State Statutes declaratory judgment This action applicabil determined the ity respondent’s activities nine criminal statutes. The circuit court held four of the statutes were inapplicable to respondent’s operations, and the State that the concedes three lottery bookmaking statutes5 and the statute6 are not impli cated Two challenged here. provide statutes7 for the seizure and destruction of gaining and unlawful agree devices. Since we with the circuit respon court that dent’s and use of the board its vessel are statutes, not unlawful under our substantive state we need not discuss these two seizure statutes. explain
We will why operations below do not 16-19-40; violate remaining §§ Ann. S.C.Code 16-19-50; and 12-21-2710.
§ 16-19-40 Section 16-19-40 provides: 1, 2000,8 July after
[From and this section reads as follows:] any person play any tavern, inn, If shall at store for the retailing spirituous liquors any inor house used as a place gaming, barn, kitchen, outhouse, stable or street, open wood, open highway, place field (a) race (b) any game dice, any table, with cards or common- A, B, C, E, O, ly called or any gaming table known or (c) distinguished by any figures, other letters (d) (e) (f) table, noir, roley-poley rouge et faro bank -20; 16-19-10; (1985 Supp.2000). S.C.Code Ann. and -30 (1985). 6. S.C.Code Ann. 16-19-130 (Supp.2000)
7. S.C.Code Ann. (g). 8. The amendment added subsection *5 under the or the like kind or bank of same other table or device (g) any or machine whatsoever denomination gam- for 12-21-2720 and to Section used pursuant licensed billiards, bowls, the of back- except games bling purposes, chess, betting there is no draughts, or whist when gammon, chess, billiards, bowls, backgammon, game of on such or of such shall sides hands draughts, or whist or bet the thereof, being magis- сonvicted before game, upon as do trate, period thirty for a of not over imprisoned shall be every and dollars, or fined over one hundred days not store, public tavern, inn, retail keeping person so such place a for such other place, house used shall, thereof, indictment, upon house upon being convicted for twelve months and imprisoned period exceeding not be dollars, for exceeding forfeit not two thousand each a sum offense, added). every and clauses; prоhibits has two the first Section 16-19-40 the second playing games of certain locations and “keeping” of that location. provides punishment person statute, strictly it it must be construed is a Since State defendant. against the State and favor (strict Blackmon, (1991) 270, 403 construc 304 S.C. S.E.2d 660 60). Ironically, the current statute tion of The 1999 poker not video machines. does cover (g), prohibits gambling clause which amendment added licensed poker 12-21-2720. Video pursuant machine licensed, consequently are not machines no longer cаn Blackmon, supra. At most, this statute.9 State v. covered then, may apply respondent’s gaming tables. however, below, we conclude that given For the reasons not. does that crimi portion
We first consider the statute lists numer playing games. nalizes the of certain The statute games are specific playing ous locations list does not prohibited Since the locations prohibited. ‘boat,’ Vessel,’ ‘ship,’ term such as we hold that include machines, course, possession or use these whether licensed or 9. Of not, prohibited absolutely v. 192 Coin- under 12-21-2710. State Machines, Operated Game 525 S.E.2d Video opinion, apply explained does to the As later in this statute respondent’s ship. machines located on “playing” clause does not apply respondent’s operations. State, (2001) (where See Brown v. S.C. S.E.2d 846 very covered, criminal statute specifically lists locations those excluded, not mentioned are maxim applying expressio unius *6 alterius). est exclusio
Further, because a ‘vessel or prohibited float’ not a 19—40, location “playing” § under the clause of but is a 16— statute, 16-19-130, § named location under the bookmaking and because both statutes part are of the crimi anti-gambling nal we that hold the circuit court properly concluded portion of the inapplicable statute was to respondent’s See, Games, operations. e.g., Great Inc. v. South Carolina Revenue, (2000) (statutes Dep’t 339 S.C. 529 6 S.E.2d which are of the part legislative same scheme should be together).10 construed §
The portion of 16-19-40 criminalizing “keeping” of a gaming slightly location uses language different arguably could be read to cover respondent’s gaming table “playing locations, activities. While the specific clause” lists the “keeping punishes clause” “every person keeping so such tavern, inn, store, public place, retail place house used as a added) for gaming----” Respondent’s vessel is a public place, and seemingly therefore covered under the literal language whole, of this clause. Reading the statute as a however, we conclude this ‘рublic place’ language is a refer- ” 10. The ignores principles statutory dissent these construction and Const, XIV, "highway” § § conflates the term in S.C. art. 4 with 16—19— playing prohibits playing 40 to conclude that the clause of the statute held, XIV, navigable § "hardly waters. As this Court has art. 4 is anything more than a rights constitutional sanction of the common-law public navigable Lyon of the in waters.” State ex rel. v. Columbia Water Co., 181, 190, (1909). Nothing § Power 82 S.C. S.E. 889 in 16- rights public navigable 19-40 obstructs to use waters. Furthermore, statute, construing ‘highway’ when the term ain we view Here, structures, eight building it in context. the statute lists then view, ‘highway’ spaces. ‘street’ and and then three outdoor In our ‘highway’ § only term in highways 16-19-40 refers to dirt 'and not highways. Compare Speights County, water v. Colleton 100 S.C. (1915) (term dirt, water, ‘highway’ only S.E. 873 means and not highway). Finally, prohibit we note that 16-19-50 and anywhere in the State waters), (including nonnavigable operating "day save on a vessel a cruise nowhere.” of the “playing” part in the to the locations listed back ence literally track “keeping” The clause does statute. clause, “keeping but does refer “рlaying” language clause otherwise “keeping” To read the such” a location. in more and a criminal act “playing” being result would This, turn, would “keeping.” locations than would different running game person that the to the absurd result lead if, a example, operating he was prosecuted could not be street, field, there person playing wood while open private absurdity height- of this result is prosecuted. would be punish has chosen by the fact the General ened than a Broadhurst harshly “player.” more See “keeper” Comm’n, 373, 537 Elec. S.E.2d City Myrtle Beach (no is, (2000) statutory language will plain matter how result). vessel is Respondent’s to avoid absurd be construed meaning within the of 16-19-40. “public place” not a conclusion that affirm the circuit court’s We not violate 16-19-40. operations do *7 § 16-19-50 and a “person criminalize actions of who These two code sections gambling purposes]” used for up, keep, [games shall set use 16-19-50) (§ keep your premises” make it unlawful “to 12-21-2710). (§ In determin- used any devices two we look at the applicability of these ing intent, as Assembly’s legislative of its expression General in 1999Act No. 125. reflected above, the Johnson in 1999 the Fourth Circuit held
As noted existing statutes. Casino preempt Act did not Ventures, appellate This decision reversed a district supra. the 1992 amendments opinion which had held that under court Act, only by “day a state could ban cruises” to the Johnson byAct “opted prohibiting a statute which out” of the enacting voyages. Casino gambling equipment repair use (D.S.C.1998). Stewart, 23 647 F.Supp.2d Ventures court was from that district decision appeal While the Circuit, the Fourth before General pending which, among poker legislation video comprehensive enacted § 12-21-2710.11 1999 things, amended 16-19-50 and § 12-21-2712. Section 12- amended 16-19-40 and 11. This act also applies only destroy” which if the is a "seize and statute 21-2712 Act No. 125. Act No. 125 an contains intent clause12 which in part: states Assembly by
The General enactment this act has no any provision by intent enact allowed 15 U.S.C. Act, commonly referred to as the Johnson or to create by state enactment authorized the Johnson Act. legislature
The intent of the in light determined “the overall climate in which legislation was amended.” Thrift, State v. S.C. S.E.2d 341 At the legislature time the enacted Act No. a federal district cruises,” “day court had ruled like those operated by respon dent, permissible were legislature unless and until the “opted out” of the Johnson Act. While this was ruling later found to Circuit, be erroneous by the Fourth we agree with the circuit court that “in light of the overall existing, climate” then this intent clause Act No. 125 must be read to evince a legisla tive intent not tо make the cruises unlawful.
The State no offers alternative construction of this intent “[wjhatever clause, but argues instead may prompted have insertion of language 125], intent in Act [this No. the Fourth subsequent Circuit’s decision purpose made its clear.” We do agree not that subsequent by action a separate entity can either alter or elucidate legislative intent. light language the act amending 16-19-50, legislature we conclude the did intend them prohibit “day cruises.” Our conclusion that the General
Assembly does not that any intend current statute con- “day strued ban cruises” is subsequent reinforced its rejection of legislation would have new gaming enacted criminalizing them 1999 and 2000. See explicitly statutes (1999); (2000).13 House Bffl 3002 Bill Senate *8 earlier, explained devices are by otherwise unlawful. As its apply own terms not does to tables located on vessel. 22(B). 12. Section State,
13. The dissent’s reliance on Whitner v.
Conclusion not in ruling respondent that is affirm the circuit court’s We above, the criminal statute. As noted violation of (§§ 20; 16-19-10; lottery of the statutes applicability three 16-19-130) (§ 30) is not at issue bookmaking statute and the Further, inapplicable respon- is because here. 16-19^40 public place nor a prohibited is not a location dent’s vessel of 1999 Act of the intent clause light therein. described legislature court that the agree with the circuit No. we apply § 12-21-2710 or not intend that either did Further, that we conclude “day operations. cruise” explicit- which would Assembly’s rejection statutes General understanding of its that day cruises is evidence ly criminalize to such Since existing applies operations. of our statutes none unlawful, they subject are not to seizure are not § 12-21-2712 or 16-19-120. under either prosecution not to criminal under Respondent is statute, existing therefore we need not address and We have construed argument. its “selective enforcement” nowhere,” that “day cruises to they apply these statutes as out is, flag operating vessels cruises on United States making intervening stops, permit- no port, South Carolina beyond the State’s gambling only ship when the ting intent of the Our decision rests on the territorial waters.14 nothing Act 125: that Legislature expressed No. scope Act is intent otherwise restrict indicative Here, during rejected in we are concerned with bills Carolina of the 113th Session of South first and second sessions Assеmbly. which enacted General This is the same General Act No. 125. believe we have would mislead the casual reader to that 14. The dissent capable floating or legalized gambling devices on contrivance resident, transportation, if controlled a United States as water use citizen, corporation. only is whether issue we decide current flag U.S. devices aboard law criminalizes ports. operating "day to nowhere” out of South Carolina cruises vessels the issue before the of our decision is the result of The narrowness Court, part majority. disingenuousness on the *9 application of laws criminalizing gambling activities Further, emphasize State. we that the General legislation effectively free to enact or bans makes “day state crime cruise” such that operations operated by respondent. above, given
For the reasons the order of the circuit court is AFFIRMED.
TOAL, C.J., WALLER, JJ., MOORE and concur.
BURNETT, J., dissenting separate opinion.
Justice BURNETT:
I respectfully dissent from majority’s respon- conclusion dent is not to criminal prosecution any existing under machines, state statute. Respondent possesses admits it slot tables, tables, blackjack tables, craps poker roulette tables “day for use on or cruises” “cruises to nowhere.” Possession of these items within the territorial waters of the State of subjects respondent South Carolina to the criminal laws of this state.
South Carolina Code Ann. 16-19-40 (Supp.2000) provides: tavern, inn, any person play shall at any store for the [i]f retailing spirituous liquors or in any house used as a barn, kitchen, outhouse, place gaming, stable or other street, (a) wood, highway, open race field or open place at (b) any game dice, with or any gaming cards table common- A, B, C, E, 0, ly called or any gaming or table known or (c) distinguished by any other or by any figures, any letters (d) (e) (f) table, noir, roley-poley bank, et rouge faro other table or bank of the same the like kind under denomination (g) any whatsoever or machine or device pursuant gam- licensed Section 12-21-2720 and used for billiards, bowls, bling purposes, except games back- chess, gammon, draughts, or whist or shall bet on the sides thereof, or hands of such as game, upon being do convicted before magistrate, imprisoned period shall be for a dollars, thirty days not over not fined over one hundred inn, store, tavern, and every keeping so such retail person or house as a public place, place used such shall, thereof, being upon upon house convicted indict- twelve ment, period exceeding for a riot imprisoned be' exceeding two thousand forfeit a sum months and dollars, every for each and offense. added). *10 Const, art. highways. S.C. public waters are
Navigable water, a XIV, navigable on a Accordingly, gambling § 4. tables on “keeping” gaming § 16-19-40 and violates highway, State, § 16—19— public place, violates water of navigable makes it (Supp.2000) §Ann. 16-19-50 Code South Carolina unlawful to (a) table, commonly called keep, any gaming or use up,
set A, B, C, E, O, table known or distin- any gaming or or (b) by any figures, roley- or by any other letters guished (d) (c) noir, faro bank table, rouge to et play table poley (e) like or of table or bank of the kind gaming.... purpose other kind for the subject possible are tо fines and of this section Violators Id.; § Ann. 16-19-100 see also S.C.Code imprisonment. (1985). (Supp.2000) §Ann. 12-21-2710 makes
South Carolina Code any person for unlawful or to operate permit kept on his or keep premises to any vending within this State or premises operated his or machine, game play machine with a free slot or video a coin or deposited a slot which is operated feature value, by a slot in which is operated or other device thing of play poker, value for the thing a coin or deposited lotto, keno, craps, or or machine or blackjack, bingo, for to Section and used pursuant device licensed board, board, or other device gambling any punch pull or kind, games of chance of whatever name pertaining boards, machines, or other devices that including those words, symbols, at different pictures, different display numbers, or, figures in words or or different whether plays or in deposit regular or coins at intervals tokens machine, or in the but the varying player numbers to the coin-operated not extend to provisions of this section do tables, pin games, in-line or to automatic nonpayout pin musical, machines which measuring, vending weighing, give are constructed as to a certain uniform and fair return deposited value each coin and in which there is no element of chance. added). Respondent’s gambling devices which are seizure,
prohibited by and, 12-21-2710 are if a magistrate they determines violate after hear- 12-21-2712; ing, destruction. S.C.Code Ann. State v. 192 Machines, Coin-Operated, Video Game S.E.2d 872
Nowherе do provide exceptions these statutes for gambling fact, devices tables located on boats. 16—19—40specifi- cally applies or tables located on boats. despite plain Yet language these the majority concludes the General did not apply intend them to to the devices aboard vessels such as respondent’s. majority bases this conclusion on the “intent” clause in Act contained which stated in part: The General Assembly by enactment of this act has no *11 any provision intent to enact by 1175, allowed 15 U.S.C. commonly Act, referred to as the Johnson or to create state by enactment authorized Act. Johnson The majority acknowledges the Fourth Ap Circuit Court of peals has explicitly held the Johnson Act not preempt does gambling laws: “That federal enactment does not even apply to South Carolina’s regula territorial waters —it leaves tion, of those waters to the state.” Casino v. Ventures Stew (4th art, 307, Cir.1999), 183 F.3d 312 23 rev’g F.Supp.2d 647 (D.S.C.1998), 1077, 793, cert. denied 528 120 U.S. S.Ct. 145 (2000). fact, L.Ed.2d 669 In majority correctly as the ex plains, thе Fourth Circuit held that state enactment to the Act pursuant gam Johnson would determine whether law, Thus, bling day cruises violate federal not state law. Ventures, in legislature’s under Casino intent statement Act 125 has no impact on state law whatsoever. Neverthe less, that, majority concludes because the Fourth Circuit’s in opinion was not four days Casino Ventures filed until after law,15 Act 125 into signed Assembly was the General must have intended to exempt gambling cruises from the day signed July 15. Act 125 was law into 1999. Casino Ventures was July filed on 1999. or gambling tables de- possession general prohibition essence, would have us infer this majority vices. intent, plain language of the in clear startling contravention of an earlier erroneous solely on the basis these the District Court of South of federal law construction Carolina.
Moreover, majority interpretation asserts its legis- subsequent intent must be correct because legislature’s rejected. has Subse- addressing “day lation cruises” been acts, however, light do not shed on the intent quent legislative in earlier statute. v. legislaturе enacting an Whitner State, 1, 492 328 S.C. S.E.2d activity extends to authority gambling over
South Carolina’s Ventures, 183 F.3d territorial waters. See Casino the State’s make unequivocally The criminal statutes of this state on boats keep gambling it unlawful to tables devices 16-19-40, 16-19-50 and 12-21-2710. within this state. See in devices have held mere We in storage use— operational inoperational, state — v. Video Game Operated violates state law. State 192 Coin Machines, supra. If the General had intended it day prohibition, cruises from this exempt conducting vеssels Pacesetter, plain Tilley would have done so terms. See (1998) (if legislature had intended S.E.2d so). majority’s have said certain result statute would day general casino cruises from the ruling exempts state, expression legislative of this without clear laws intent to so. do decision, may
Finally, majority’s under the or “United States kept solely flag ships” on “United States port. out of a While flag operating vessels” South Carolina *12 ship” or majority flag does not define “United States refer to 18 U.S.C. flag “United States vessel” does (2000)which defines “American vessel” as: or numbered under the laws of the
any vessel documented States; any and includes vessel which is neither United laws of the or numbered under the United documented of coun- any foreign nor documented under the laws States to, by, if such vessel is owned chartered otherwise try, by controlled one or more citizens or residents United of States or corporations organized under the laws of United States or State. added).
Pursuant to 18 U.S.C. “vessel” every includes kind of water ... craft ... or other contri- vance used or capable being used as a of transpor- means tation on water ... boat, as well as ship, barge, or other water craft or any structure capable floating on the water.16
Applying the by definitions referenced majority to its analysis, it is legal gambling devices to kept type ... capable “contrivance of being used for transportation on capable water” “structure of floating on the water” if controlled a United States majori- citizen resident. The ty’s opinion suggesting its decision very is limited to a narrow (i.e., class of water craft flag ships” “United States or “United vessels”) flag or, States is disingenuous best, misleading. I would reverse the order of the circuit court and hold boats located within South Carolina its territorial waters are to the same laws concerning gambling premises this state.
Submitted 2001.
Decided Nov. Richardson, Jr., Henry Columbia, B. for the Office of Disciplinary Counsel. flag ships.
16. The Johnson Act does not refer to United States While it ''vessels,” refers to it does not define the extent of water craft encom- passed by that term.