HUNSTEIN, Chief Justice.
We granted certiorari in these cases to address whether the seven video game machines at issue are illegal gambling devices subject to condemnation by the State, as found by the Court of Appeals based on the interpretation it gave to the phrase "a single play" pertaining to the non-cash redemption options set forth in OCGA § 16-12-35, State of Ga. v. Damani, 299 Ga.App. 112, 681 S.E.2d 635 (2009), or whether the game machines meet the definition in OCGA § 16-12-35 for coin operated games or devices designed and manufactured for bona fide amusement purposes only, as found by the trial court when it denied the State's petition to condemn these particular machines. For the following reasons, we reverse the Court of Appeals.
1. The State of Georgia, by and through the District Attorney of Cobb County, brought civil condemnation actions against various game machines owned or leased by appellants claiming that they were illegal gambling devices in violation of OCGA § 16-12-20 et seq. By agreement of the parties, the trial court assessed the capabilities of eleven specific machines, as representatives of the whole, and, after making detailed findings of fact as to each machine, applied those facts to its legal construction of OCGA § 16-12-35. The trial court found, inter alia, that seven of the machines
The Court of Appeals reversed the trial court as to these seven machines. The majority opinion was based on the holding that the trial court erred as a matter of law as to the legal interpretation it gave the phrase "a single play" in OCGA § 16-12-35. State of Ga. v. Damani, supra, 299 Ga.App. at 116(1)(b), 681 S.E.2d 635. The majority opinion recognized that "[t]he term `a single play of the game or device' is key to our analysis," id., but noted that "[u]nfortunately, it is not defined in the statute. See OCGA § 16-12-20." Id. It then construed the phrase to mean that a "`single play of the
The Court of Appeals rendered its decision in June 2009 and we granted certiorari in January 2010. While this appeal was pending, the Legislature amended OCGA § 48-17-1, the definitional statute for the revenue chapter governing the taxation of bona fide coin operated amusement machines. That amendment, which was signed by the Governor on May 26, 2010 and became effective July 1, 2010, contains the following definition:
Ga. L. 2010, p. 470/SB 454 § 1. With this amendment to OCGA § 48-17-1, which specifically defines the language in OCGA § 16-12-35 at issue in these appeals, the Legislature clarified its intent as to the meaning of "a single play" both as it pertains to the statutory $5 cap placed on rewards of noncash merchandise, prizes, toys, gift certificates, or novelties in OCGA § 16-12-35(d)(1)(B) and as to that term's usage in the noncash redemption provision in OCGA § 16-12-35(d)(2). State of Ga. v. Damani, supra, 299 Ga.App. at 117(1), 681 S.E.2d 635(b) (OCGA § 16-12-35(d)(1) and (2) must be read in harmony and "a single play" construed the same in both subsections).
(Emphasis omitted.) City of Valdosta v. Singleton, 197 Ga. 194, 208(3), 28 S.E.2d 759 (1944). Although the trial court did not have
2. In a special concurrence to the Court of Appeals' opinion, Judge Adams disagreed with the majority's definition of "a single play" on the basis that it would necessarily exclude the free replays allowed under OCGA § 16-12-35(b), (d)(1). State of Ga. v. Damani, supra, 299 Ga.App. at 121, 681 S.E.2d 635. However, the special concurrence found the seven game machines at issue to constitute illegal gambling devices based on the language in OCGA § 16-12-35(d)(2). That subsection provides:
Id. The special concurrence, focusing on the phrase "successful play" in the first sentence of OCGA § 16-12-35(d)(2), reasoned that players are allowed under the remaining sentences to redeem accumulated tokens, vouchers or tickets received only for each "single play" that is successful. Hence, it concluded that the machines in issue violated this subsection because they allow a player who accumulates a large number of points during one successful play of the game to carry those points over to subsequent games and obtain a "reward" for those games based on the previously-accumulated points even though the player won no points or an insufficient amount of points in those subsequent games.
The special concurrence thus necessarily determined that "successful" modified "play" in the remaining sentences in OCGA § 16-12-35(d)(2), even though "successful" appears only in the first sentence of that subsection. The Legislature could have but chose not to modify the subsequent references to "play" in OCGA § 16-12-35(d)(2) with the word "successful." The absence of this modifier lends itself to the reasonable interpretation that subsequent single plays need not be subsequent successful single plays in order for a player to redeem noncash merchandise capped at $5 for each subsequent play. It thus appears that two reasonable interpretations exist for the language in subsection (d)(2): one which requires players to be successful in each single game played and the other which allows players to accumulate winnings for the successful play of one single game and then carry over those winnings to subsequent plays without regard to the player's success or lack thereof in those games.
The rules of statutory construction are well established in situations such as these.
Fleet Finance, Inc. v. Jones, 263 Ga. 228, 231(3), 430 S.E.2d 352 (1993). Because the construction given OCGA § 16-12-35(d)(2) by the special concurrence is not the interpretation most favorable to appellants, who are faced with the condemnation of these game machines by the State on the basis that they are illegal gambling devices, we decline to adopt the special concurrence's interpretation. Applying, as we must, the most favorable interpretation, we hold that OCGA § 16-12-35(d)(2) does not require success in every single play of the game in order for a player to carry over and redeem points accumulated
3. (a) Although the Court of Appeals did not reach the issue, see State of Ga. v. Damani, supra, 299 Ga.App. at 118(1)(c), 681 S.E.2d 635, our holding above makes it necessary for us to address the State's contention that OCGA § 16-12-35 is not applicable to the game machines at issue and the trial court's ruling should be reversed because the machines are illegal gambling devices as defined in OCGA § 16-12-20(2)(B), (C) and (D).
(b) Finally, the State argues that no actual skill is involved in the playing of these games, claiming the skill involved is "illusory" and designed to hide the fact that these are only games of chance. The State's argument must be viewed in light of the Legislature's definition of "some skill" as that phrase is used in OCGA § 16-12-35. Subsection (a) clarifies that
The skill level involved in the play of the game machines at issue is unquestionably low. However, as the above-cited language in OCGA § 16-12-35(a) reflects, the Legislature set the requisite skill level extremely low when it defined "some skill" so as to encompass essentially any action by a player "to affect in some way the outcome of the game played." Id. In light of this definition and the evidence adduced in the record regarding the "skill" involved in playing the game machines in issue, the State cannot show that the trial court's factual findings in this regard are clearly erroneous. See generally Lyon v. State of Ga., 230 Ga.App. 264, 495 S.E.2d 899 (1998).
4. Our Constitution prohibits gambling, Art. I, Sec. II, Par. VIII(a), and our statutes outlaw illegal gambling devices. OCGA § 16-12-20 et seq. The Legislature, however, has chosen to exclude from these constitutional and statutory bans certain poorly-defined games and deem them "bona fide amusement" games that are legal to play notwithstanding the questionable amusement value of the games, the low level of skill required to play them and the players' potential to amass multiple "rewards" each worth $5 for very little consideration. However, "the courts are not permitted to concern themselves with the wisdom of an act, ... but are confined to settled principles of law under the long-established general rule...." Mayes v. Daniel, 186 Ga. 345, 350(1), 198 S.E. 535 (1938). Because the machines at issue in these appeals meet the definition in OCGA § 16-12-35 for coin operated games or devices designed and manufactured for bona fide amusement purposes only, the Court of Appeals erred by reversing the trial court's holding that these machines are not subject to condemnation by the State.
Judgment reversed.
All the Justices concur, except HINES, MELTON and NAHMIAS, JJ., who dissent.
MELTON, Justice, dissenting.
Gambling is strictly prohibited under the Georgia Constitution, "and this prohibition shall be enforced by penal laws." Ga. Const. of 1983, Art. I, Sec. II, Par. VIII. In connection with this prohibition, the Legislature has specifically defined the manner in which "a coin operated game or device designed and manufactured for bona fide amusement purposes" may be used without the machine being subject to condemnation by the State as an illegal gambling device. OCGA §§ 16-12-35; 16-12-32. Because the machines at issue here are illegal gambling devices, in that they do not comport with the plain restrictions for "bona fide coin operated amusement games or devices" as defined in OCGA § 16-12-35(d)(2), I must respectfully dissent from the majority's erroneous conclusion that the State was not entitled to condemn the machines involved here.
OCGA § 16-12-35(d)(2) provides:
(Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003). "[U]nder our system of separation of powers this Court does not have the authority to rewrite statutes." State v. Fielden, 280 Ga. 444, 448, 629 S.E.2d 252 (2006). It is not our function to rewrite the law, but to "look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." OCGA § 1-3-1(a).
Here, the plain language of the statute is clear. A player "may accumulate winnings for the successful play of [a] bona fide coin operated amusement game[] or device[] through tokens, vouchers, points, or tickets," and accrued points may be "carr[ied] over... on one play to subsequent plays." OCGA § 16-12-35(d)(2). However, a player may only "redeem accumulated tokens, vouchers, or tickets for noncash merchandise, prizes, toys, gift certificates, or novelties so long as the amount of tokens, vouchers, or tickets received does not exceed $5.00 for a single play." (Emphasis supplied.) Id. Thus, no matter how many points or tickets are carried over from a prior game, a player cannot legally redeem his or her total sum of accumulated points for any value "exceed[ing] $5.00 for a single play." Id.
In the instant case, however, that is exactly what the machines in question allowed players to do. The example given by the special concurrence in the Court of Appeals is instructive. It is undisputed that, based on the manner in which these machines were designed, a player could win 100 points in his or her initial game, which would be represented as $100 on the game screen, and when the player pressed the redeem button on the machine, he or she would receive a $5 voucher, leaving a balance of $95/points to be carried over to the next game if the player chose to continue playing.
(Emphasis supplied.) State of Ga. v. Damani, 299 Ga.App. 112, 119-120, 681 S.E.2d 635 (2009) (Adams, J., concurring specially). In other words, the machines allowed players to redeem their accumulated point totals in an amount that "exceed[s] $5.00 for a single play" in direct violation of the plain language of OCGA § 16-12-35(d)(2).
In fact, using the same 100 point winner example, at the time that those 100 points were accumulated in a single game, the present cash value of those points would far
Contrary to the majority's contentions, this analysis has nothing to do with the interpretation of the phrase "successful play" in OCGA § 16-12-35(d)(2). The relevant inquiry here is not whether subsequent plays after the initial play that led to an accumulation of points must be "successful," but whether one can legally redeem his or her total accumulated points for a value that exceeds $5 for a single play. Id. The Legislature has made clear that this cannot be done, and one need not read the word "successful" into any other line of the statute for this to be the case. Id.
Because the machines in question allow players to redeem accumulated points for a value in excess of $5 for a single play, they are not "bona fide coin operated amusement games or devices," but rather, illegal gambling devices that are subject to condemnation by the State. Id. See also OCGA § 16-12-32. I therefore respectfully dissent from the majority.
I am authorized to state that Justice HINES and Justice NAHMIAS join in this dissent.
This subsection shall not apply, however, to any game or device classified by the United States government as requiring a federal gaming stamp under applicable provisions of the Internal Revenue Code or any item described as a gambling device in subparagraph (B), (C), or (D) of paragraph (2) of Code Section 16-12-20.