STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 16, 1970

Jon Mattson
State's Attorney, Lawrence County
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 70-17

A pinball machine awarding free play or extended play upon attaining a designated final score is not a gambling device in South Dakota. SDCL 22-25 and particularly 22-25-13

Dear Mr. Mattson:

You have requested my opinion on whether or not coin operated pinball machines, commonly known as "flipper games," including guns, baseball, football, basketball, computers, helicopters and such other machines which give free play or extended upon attaining a certain score are violative of Article III, Section 25 of the South Dakota Constitution and are in violation of SDCL 22-25, and particularly SDCL 22-25-13, or if not violative of the constitutional provisions, are violative of the statutory law.

My predecessors in office have held that the giving of a free game on a "pin ball" machine by virtue of attaining a predetermined score thereon is violative of the statutes now designated SDCL 22-25-13. Your inquiry is whether or not this office still concurs with these prior opinions of this office. These former opinions are reported in the following opinions:

1945-46 AGR 348; 1947-48 AGR 286; 1955-56 AGR 94.

In the last cited opinion my predecessor said:

"While under the present state of our law on the subject (SDC 24-0204, the predecessor statute to SDCL 22-25-13) I cannot go so far as to classify pinball machines with slot machines, and hold as such they should be suppressed, whether innocently employed or otherwise. I do, however, have no hesitation in expressing my opinion that where the free play privilege is available by operation of a pinball machine or it is used as a medium for determining a side bet or wager, they are unlawful and a gambling device."

Your inquiry, of course, did not raise the question of side bets or wagers on the result of the score attained by the operation of a "flipper" type pinball machine, and I am expressing no opinion as to the validity of the finding that such side bet or wager on such results on playing such pinball machine may result in such machine becoming an instrumentality of gambling, condemned by the statute. I am only concerned with whether or not the award of a free game extended free play on such machine is condemned by the statute.

I may also comment that Section 25 of Article III of the South Dakota Constitution provides that the Legislature shall not authorize any game of chance, lottery or gift enterprise, under any pretense, or for any purpose whatever. Our Legislature has enacted substantial laws concerning gambling and lotteries. Strictly speaking, the determination of whether or not the awarding of free games constitutes the slot machine a gambling device is determined on the extent of the statute enacted by the Legislature and not the constitutional provision cited.

It is agreed by my predecessor that SDCL 22-25-13, as any statute which condemns certain machine or operations, that three elements must co-exist, namely: consideration, chance and prize. It is manifest that a consideration is paid to operate a pinball machine. It is normally conceded that "chance" is an element to attain the desired or requisite scoring combination in order to be awarded a free game on such machine, although it is recognized that many claim that it is skill, rather than chance that determines the attainment of the proper score. The large problem presented is whether or not there is a "prize" awarded by such pinball machine. (In the language of SDCL 22-25-13 "anything of value is won" upon such machine.)

After a mature reflection upon this critical problem, and appreciating that the experts (see 89 ALR (2) 832) conclude that the majority rule is that the award of a "free replay" is the award of "anything of value," it is my opinion that such conclusion is sustained more on fancy than fact. De minimis non curat lex.

In Thamart v. Moline (1945) 66 Idaho 110, 156 P 2d 187 the statute condemned the granting of "credit" or other representative of value. The court concluded that free replays amounted to credit (condemned by the statute) but could not conclude that a free replay was representative of value.

In State v. One Pinball Machine (Mo. App. 1949) 244 SW 854 the court concluded that the right to receive a free replay involved being "allowed to do a useless thing free," that such could not amount to being awarded a "thing of value."

In a scholarly review of the law, the court in People v. One Mechanical Device (1957) 11 Ill. 2d 151, 143 NE 2d 198 declared the award of free games or the right to additional amusement, did not amount to a valuable thing, or a thing of value, so as to constitute a gambling device. Said the court:

"We are of the opinion that a free play is neither money, the equivalent of money, nor a valuable thing. It is unrealistic to hold that the possibility of winning a greater or lesser amount of amusement is gambling because if it were, most amusement games would be barred by the statute."

The Illinois Court listed numerous decisions from other jurisdictions which supported the finding that the award of a free play on a pinball machine is not the award of something of value.

I must overrule the cited opinions of my predecessors which held a free game on a pinball machine is "anything of value." It is my opinion that a pinball machine, such as described, which awards only free play or extended play upon the attainment of a designated final score is not a gambling device in South Dakota.

Respectfully submitted,

Gordon Mydland
Attorney General