Montana Attorney General Opinion 15-629

Opinion No. 629 LotteJies, Defined-Consideration Necessal'y-uBank Night." HELD: To constitute n lottery there must be (1) distribution of prizes (2) hy chance (3) among persons who have pnid a valuable considerntioll tberefor. Where a theatre distributes money by chance on a plan called "Bank Xight" to persons who are not required to pay for the chance, it is not a lottery as defined hy Section 11149, R. C. M., 1921. (The opinion is limited to the facts stu ted therein.) OPIi\IO~S OJ!' THE ATTORNEY GENERAL 433 October 11, 1934. You have asked my opinion in regard to the legality of what is known as the "bank night" put on by the Liberty theatre and you enclose a memo of the facts as follows: "Every Wednesday night the sum of one hundred dollars is gh'en away at the Libertv Theatre or Rainbow The- atre to the person whose name is drawn from a list of names which is made UI} of all persons who have reg- istered in the registration book, pro- vided that person comes forward with- in a reasonable time to claim the prize. In the event he does not so come forward, names continue to be drawn until the pri7.e is claimed. "In order to register so that his name may be eligihle for Bank Night a person must write his name and address in the registration book. These books are kept in the lobby of both the Liberty and Rainbow Theatres but. are open for any person, whether he has paid admission to the theatre or not, to register therein. Any person desiring to register may enter the the- atre and do so without paying any admission therefor. Moreover, as the registration book;,; now stand they con- tain the names of many persons who ha ve registered without paying any admission. "The books have been made avail- able outside the theatre for those who desired to register therein. Requests may be !lnd have heen made at the hox office during operating hours or to the manager, outside of hours, for the privilege of registering and it has heen and will he extended to the per- son so requesting it. "On Wednesday night the drawing is held on the stage of the Liberty Theatre at nine o'clock or very close to tha t time. '.rhe name of the winner is announced in the Liberty Theatre and in the Hainhow Theatre and it. is likewise announced in front and outside of the Liberty Theatre and of the Hainbow Theatre. "After the name has been announced that person is given a reasonahle time to come forward and claim his prize. Announcements outside the Theatre Ilre so made that anyone within a reasonahle distance of the Theatre en- trance may hear his name called and if his name is called he is given a reasonable time to make that fact known and to enter the Theatre and to claim the money. "Anyone whose name is called may enter the Theatre for the purpose of claiming the money without paying admission therefor. Anyone whose name is registered may, on or about nine o'clock on Wednesday night. come and stand in front of either the Liberty or Hainbow Theatres and have as much opportunity to have his name called and to receive the prize money as if he were within the 'I'heatre: "In making the drawing and in awarding the money there is no dis- crimination. in fact. there is no in- vestigation . made as to the payment of an admis;;ion fee either at the time of registering or at the time of elaim- ing the prize money. Many prizes ha\'e been awarded to persons who ,,'ere standing outside the Theatre at the time their name was called and they have been allowed to claim their prizes without regard to the fact that they had or had not Il ticket of ad- mission. "N 0 pressure is exerted to force or persuade people to huy admission tick- ets in order that the~' might therehy win the money." For the purpose of this opinion we assume the facts as staterl in the memo to be true. Should there be any ma- terial change therein it might require a change in my opinion. Sl'Ction 1114fl, n. C. M., UJ21, defines lottery: "A lottery is any scheme for the llisposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtain- ing such property or a portion of it, or for any share or interest in such property, upon any agreement, under- stanlling, or expectation that it is to be distrihuted or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by what- eyer name the same may be known." An analysiS of this Section and siIn- itar statutory pro\'isions and an ex- amination of the authol'ities construing them discloses that there are three elements necessary to constitute a lot- tery: (1) distribution of prizes or 434 OPINIONS OF THI~ ATTORNEY GENERAL things of value, (2) by lot or chance, (3) among persons who ha"e paid or agreed to pay a valuable consideration for the chance to obtain such prizes or things of value, (38 C. ,J. 286, sec. 1, and 289, sec. 2; 1.7 R. C. L. 1222: Peo- ple v, Cardas, 28 ·Pac. (2d) 99; People ". Hecht. 119 Cal. App. Supp. 778, 3 Pac. (2d) 39V; Denver v. Fraueauff. 39 Colo. 20, 36; 88 Pac. 389; 7 L. R. A: (n, s.) 1131; 12 Am. Cas. 521: Loh- man v. State, 81 Ind. 15, 17,) While the first two elements are present in the facts outlined, it is ap- parent that the third element, the con- sideration, is lacking. This plan is sim- ilar to the plan considered by the Cali- fornia Court in the case of People v. Cardas, supra, in which State a lottery is defined exactly as it is in Montana. The only difference in that case is that. the pri7,cs were free round-trip tickets to Santa Catalina Island. In holding that there was no consideration paid for the chance the Court said: "Counsel for the people argue that patronage from the ticket holders as a whole constituted consideration for the distribution of the prizes, even though the indh'idual holders of tick- ets had not parted with consideration for the individual ticket held by them. This argument apparently proceeds upon the theory that the element of consideration is established by show- ing that the defendant received some- thing of value in return for the dis- tribution of the l)rizcs. The question of consideration is not to be deter- mined from the standpoint of the de- fendant, but from that of the holders of pri7,c tickets. The question is: Did the holders of prize tickets pay a valuable consideration for the chance'! Certainly those who received prize tickets without buying an ad- mission tIcket did not pay anything for the chance of getting the prize. 'l'hey did not hazard anything of value. It would then seem to follow that those who purchased admission tickets and received prize tickets, not at the box office, but. from another employee, could not be said to have paid a consideration for the prize tickets since they could have received them free," The facts are also similar to those considered by the Colorado Court in Cross ". People, 18 Colo. 321, 32 Pac. 821. 36 Am. St. Rep, 292, where the Court said: "The gratuitous distribution of prop- erty by lot or chance, if not resorted to as a device to evade the law, and no considera tion is derived directly or indirectly from the party receiving the chance, does not constitute the of- fense. In such case the party receiv- ing the chance is not induced to haz- ard money with the hope of obtaining a larger value, or to part with his money at all: and the spirit of gam- bling is in no wa~' cnUh'a ted or stimu- lated, which is the essential evil of lotteries, and which our sta tute is enacted to prevent. .. • .. The fact that such cards or chances were given away to induce persons to visit their store with the expectation that they might purchase goods and thereh~' in- crease their trade, is a benefit too remote to constitute a consideration for the chances. Persolls holding these cards, although not present, were, equally with those visiting their store, entitled to draw the prize. The ele- ment of gambling that is necessary to constitute this a lottery within the pun-iew of the statute, to-wit, the pay- ing of money, directly or indirectly, for the chance of drawing the piano, is lacking, and the transaction did not constitute a violation of the statute." In view of the definition of lottery given by our statute and the lack of consideration paid by persons register- ing, it is my opinion that the bank night plan, as outlined above, is not a lottery and is not a violation of our statute. It is not the function of this office to legislate and to declare that illegal which the legislature has not condemned. There is no law which pro- hibits the gratuitous distribut.ion of one's property by lottery or chance. (38 C. ,J. 291, sec. 6, note 49, citing U.S. v. Olney, 27 Fed. Case No. 15, 918, 1 Abh. 275, Deady 461; Yellow-Stone Kit v. State, 88 Ala. 196, 7 S, 338; CrOSH Y. People, 18 Colo. 321, supra; Elder Y. Chapman, 176 Ill. 142, 52 N. E. 10; Ginther ", Rochester Illlpro,'ement Co., 46 Ind. A. 378, 92 N. E. 698; Chancy Park Land Co. v, Hart, 104 Iowa 592, 73 N. W. 1059; Long v .. State, 74 1\1d. 565, 22 A. 4.) I desire to point out, however, that unless the registration books are open and readily accessible to the public and OPINIONS O~' THE ATTORNEY GENERAL 435 there is a general free distribution of the chances the plan might be held illegal by our Court as was done in Featherstone '-. Independent Service Station, (Tex. Civil App.) 10 S. W. (2d) 124, and State v. Danz, 140 Wn. 546, 250 Pac. 37, 48 A. L. H. 1109. There must be an act.ual and not merely a theoretical freedom of regis- tration and distribution. If any co- ercion of any sort is exerted to in- fluence persons to buy tickets in order to register or to collect the prize, then our opinion very likely would be dif- fercnt. We call at.tention to this fact because we have been given to understand that altho at present free access may be in effect, in the past the purchase of a ticket was necessary from a practical standpoint. Note: Section 11149, H. C. M. 1921, was amended by Chapter 36, Laws of 1935, to except gh-ing of prizes by agri- cultural fairs and rodeo associations.