April 4, 1975
Mr. Jay Tapken
States Attorney
Hutchinson County
Olivet, South Dakota 57052
OFFICIAL OPINION NO. 75-61
Does a pinball machine whereby the player gets 3 to 5 numbers in line, or the so-called "bingo" machine constitute a gambling device in violation of SDCL 22-25-13?
Dear Mr. Tapken:
You have asked whether a pinball machine whereby the player gets three to five numbers in a line, or the so-called "bingo" machine, constitutes a gambling device in violation of SDCL 22-25-13. My predecessors and I agree that the requisite "consideration" and "chance" are present in pinball games. Of course, if a monetary or other valuable "prize" is given for attaining a certain score, the pinball machine is an illegal gambling device. SDCL 22-25-13; 1969-70 AGR 275; 1955-56 AGR 94; 1947-48 AGR 286; 1945-46 AGR 348. This is true whether the machine makes the payoff or the payoff is made by some person or persons.
Free replays are not a "prize" or "anything of value" envisioned by the statute. SDCL 22-25-13 was amended in 1974 to provide specifically:
[T]he provisions of this section shall not extend to coin-operated non payout pin tables and arcade amusements with free play features.
The key to this provision is the word "non payout." Courts have frequently held that free games are not a payout because a free replay involves being "allowed to do a useless thing free." State v. One Pinball Machine, 244 S.W. 854 (Mo. App. 1949). See Thamart v. Moline, 66 Idaho 110, 156 P. 2d 187 (1945); People v. One Mechanical Device, 11 Ill. 2d 151, 143 N.E. 2d 198 (1957).
Any prize other than a free replay is a thing of value rendering the pinball machine illegal. Placing a sign to the effect that the machine is "for amusement only" does not change the character of the machine. If there is a payout, it is illegal. An "amusement only" sign is unnecessary if the machine is not used for gambling. If the machine is used for gambling, all of the signs in South Dakota cannot save it. It is the use, not the nomenclature, that is important.
I realize that the law creates a problem for enforcement authorities. A proprietor can maintain a pinball machine that ostensibly has no payout and still give a surreptitious payout on the side. This type of criminal activity is difficult to detect and prosecute. However, the Legislature has spoken and it is up to law enforcement to execute the law no matter how difficult the task.
Therefore, it is my opinion that a pinball machine whereby the player gets three to five numbers in a line, or the so-called "bingo" machine is not a gambling device in violation of SDCL 22-25-13 unless a payout is made. Free replays are not a payout.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG:rw
