Montana Attorney General Opinion 15-65

Opinion No. 65 J. .. ottelies--Theaters. HELD: The elements of lottery are Il ('onsideraNon, a prize and a chanee. A ticket which pro\'ides "this tieket is good for a chance on a 11)33 Model Re· dan at a drawing at the Fox Ilnd Bah- cock thell tre * • * winner must holtl Ildult ticket * " " purchllsed Mareh 22" shows on its faee that it is a lottery, February 4, 11)33. Yon lUl\'e requested the opinion of this office as to the following scheme constituting a lot·tery, "One or more thea tel's offers to gb'e llway an automobile free on a draw- ing to be held at some futnre dllte, V,lriolls merchants partieil}ating in the same give to a purchaser a cou- pon for e\'ery 50c purchase of goods. :l'here is nothing paid for the conpon itself but it is required. Ileconling to the coupon and Il(h-ertising, that the \\inner mnst be present a't the draw- ing ·in the theater or in the crowd out- side of the theater," You have inclosed a ticket which pro- \'ides "this ·ticket good for a chance on It lB33 l\loliel n I'll ha III Relian I-(h'en a way 9 P, M .. \VednesdIlY, March 22 at drawing at Fox and Babcock theater, winner must hold adult ticket for eith- er theater purchased March 22," It is contended th'at there is no Ylllu- able consi·deratioll vaid for the chance and therefore no violation of the stat- ute defining lottel'ies, Section 11140, 52 OPI~IONS OF THE A'l"l'OlC,gy (;E);EHAL H. e. ~L 1921, defines a lotter~- as a scheme for a disposal of property by chance among' persons who haye paid "alnable consideration for the chance of obtaining such property upon any agreement, understanding 01' expecta- tion that it is to be distributed or dis- posed of b~' lot or chance, whether called a lotten-, raffle or gift enter- pI'ise or by \\'lIateyer name the same may be known. The elements of the cl1ime as defined by our statute are a consid('ration. a prize and a chance. - "Entertainments fre(lUentl~- calkd pri7-e ('on('erts at which each hoi!ler or an admi~sion ticket is entitled to a ehance to win a prize a re similar in nn-tur(' to J:?;ift enterprises and there- fore are lottelies." (38 e. J. 298, and . eases oited in note 22.) "It does not affect the ynlidity of the considera tion that it was giYen, not simply for the chance of a prize, hut also, and possibly chiefl~'. in re- 'turn for merchandise 01' other ad- yantage to the cil'ance holder." (25 eyc. 1636 (c) and cases under note 21). "Offers of -prizes to purchasel."S of goods, the prize to be distributed by chance among the purchasers, consti- tute lottery whether the goods pur- thased or the chance to obtain n prize is a considera'tion to the person to enter into the transnction. And of silllilaL' nature is the distribution of prizes of chance among' purchasers of concert tickets." (25 eyc. 16::17, note 28 (e).) In a recent Washington case, report- ell in the 203 Pac. 21, a theater was en- joined from distribUting property to its patrons by lot or chance. On the ques- tion o:fi the scheme constituting a lot- tery the court said: "The elements of a lottery are: First, a consideration; second. a pri7-e ; and third,a chance. It needs no ar- gument ,to show ,that the second and third elements appear in the business conducted by respondent. But it is argued that the element of considera- tion does not appear because the pat- rons of the theaters pa~' no additional consideration for entrance thereto, and pay nothing whateYer for the tick- ets which may entitle them to prizes. But while the patrons may not pa~-. and the responllents may not recei'-e any direct consideration, there is an indirect consideration paid and re- ceh-ed. The fact that prizes of lllore or less yalue are to be distributed will attrnct persons to the theaters who would not otherwise a ttend. In this manner those obtaining lnizes pay consideration for them. nnll the the- aters reap a direct financial benefit. The mere fact that respondents are not permitted to ndYertise their draw- ings ca nnot remo,-e tllP sting because the scheme will adYel'tise itself. But aside from this line or argument, it is perfectly plain to us that the hu"iness of respondcnts, carrietl on as it is. comes directly within the inhihition of the ordinance, because rpspondents nre lIiI'ectly connected with a Imllincss where 'property is sold 01' disposed of b~' chance'." (Society 'l'hea tel' Y. aity of Sea-ttle, 20:3 P. 21.) The ticket in this case shows on its face tlmt it is a lottery, thnt is "<the ticket is good for a chance on a 1933 model sednn at a drawing at the Fox and Babcock theatre" .... winner must hold adult ticket .;. * .. purchased March 22." It is therefore my opinion that the scheme constitutes a lottery and is in yiolation of our section 11149.