Summary
In Darlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782, 788, the Supreme Court of South Carolina stated that Maughs v. Porter was not in accord with "the general current of authority in America".
Summary of this case from American Broadcasting Co. v. United StatesOpinion
14877
May 10, 1939.
Before DENNIS, J., Darlington, July, 1937. Affirmed.
Action by the Darlington Theatres, Inc., against J.H. Coker, sheriff of the County of Darlington, and others, tried with an action by H.R. Berry, trading as the Temple Theatre, against J.H. Coker, sheriff of the County of Darlington, and others, for injunctions restraining defendants as law enforcement officers from interfering with the plaintiffs in the management of their respective theaters. Judgments for plaintiffs, and defendants appeal.
The order of Judge Dennis follows:
These are two identical actions brought by the respective plaintiffs upon identical states of fact to obtain identical relief. By agreement of counsel the actions were tried together, the proof in each case being applicable to the other. The actions call in question the construction placed by the law enforcement officers of this State upon the lottery laws of the State in relation to the methods used by the plaintiffs, termed by them an advertising plan, to give away sums of money in the operation of their respective theaters.
Darlington Theatres, Inc., plaintiff in one case, operates a moving picture theater in Darlington, and H.R. Berry, plaintiff in the other case, operates a moving picture theater in the Town of Hartsville. Hereinafter I shall use the word plaintiff as referring to the plaintiff in each case.
The action is for a permanent injunction. The defendants are law enforcement officers of the respective towns and counties concerned, and of the State. The complaint charges that the plaintiff is pursuing an advertising plan which is wholly free from any taint of illegality, and that the defendants have warned the plaintiff that in their opinion the aforesaid advertising plan is within the prohibition of the lottery laws of the State, and that unless the same is discontinued, the defendants will arrest the officers of the plaintiff corporation and others conducting its affairs, and will cause the theater to be closed. It is then set forth that the threatened actions of the defendants, under the terms of the statutes upon which they rely, will result in a multitude of successive prosecutions, and in the deprivation of the plaintiff of its property through the closing of the theater and that under such circumstances there is no adequate remedy at law. The prayer of the complaint is that the defendants be permanently enjoined from interfering with the plaintiff in the management of its theater in connection with the matter in question.
All of the defendants were duly served with the summons and complaint, and with an order nisi issued thereon. Upon the direction of the Attorney General, the defendants were represented by S.S. Tison, Esq., solicitor of the Fourth Circuit. Upon the filing by the defendants of their return to the rule to show cause, it was agreed by counsel on both sides that in view of the statewide concern with the legal questions presented, and the importance of obtaining an early and final disposition thereof, all questions of jurisdiction and all matters of possible objection relating to the pleadings will be taken to be waived, and that the cause should be referred to the Judge of Probate for Darlington County to take the testimony. An order of reference was accordingly made, and the testimony has been taken and reported to the Court.
The matter now comes before me for decision on the merits. Counsel on both sides have been most helpful in their full and frank presentation of the pertinent facts, and in their discussion of the authorities involved.
The evidence discloses that prior to the adoption of the plan which is involved in this cause, the plaintiff operated a scheme in its theater which was in common use throughout the United States at the time, and which generally bore the name "Jack Pot" or "Jack Pot Night." Under this scheme, at a given time on a stated night each week, there was a drawing for a sum of money. The drawing was made from names deposited in a receptacle after patrons of the theater or others wrote their names on cards or tickets and delivered them at the theater. Under this plan it was necessary to purchase a theater ticket and to be present in the theater at the time the drawing was made, or at least to have been present in the theater, under a paid admission at some time during the day when the drawing was to be made. This was the plan in broad outline.
When the management of the plaintiff theater was informed that the Attorney General had handed down an opinion that the "Jack Pot" scheme is a lottery within the terms of the lottery statutes, the plan was immediately abandoned.
Thereafter the plaintiff adopted the present plan, asserting that its essential purpose is the stimulation of interest on the part of the public in the operation of the theater, and the direction of public attention to the type and quality of pictures displayed in the theater from day to day. Under this plan, names of a large number of people were procured and filed in an alphabetical list. From time to time this list is augmented with additional names. The list was obtained and is maintained through the initiative of the plaintiff. No one pays anything to get his or her name in the list. Any person, without purchasing a ticket, may ask that his name be added to the list. On a designated night each week, at a designated time, there is a drawing from these names and a sum of money previously announced is given to the one whose name is drawn. It is not required that the winner be in or near the theater, or that he had purchased a theater ticket either during the day in question or on any other day. When the name of the winner is ascertained it is announced both in the theater and also on the outside of the theater, and the person named has ten minutes in which to come to the theater, wherever she or he may be at the time, to claim the money. This period is fixed, according to the plaintiff's witnesses, as ample time for the winner to reach the theater from his or her home in any part of the town. If the winner is one who has not purchased a ticket from the theater and is not in the theater, it is not necessary that a ticket be purchased to enter the theater and claim the money, and if a person whose name is on the list gives written notice to the management that he or she will be out of town on the day of the drawing, the money will be held for such absent person if he or she should be the winner, and the ten-minute limitation period will not apply.
The evidence shows that under this plan, in more than one instance, the winner was in fact at home when his name was drawn, and reached the theater in ample time to get the money. In such cases no consideration of any kind passed from the winner to the plaintiff, either for the privilege of participating in the drawing or for the privilege of claiming and receiving the money after the drawing was made.
The plan is claimed by the plaintiff to be a sound advertising method, and in no way linked with the lottery idea. It is contended that the purpose of the plan, and its actual effect, is to widen the interest of the public in the theater, by calling attention to it, and to the pictures played therein, through the word of mouth and other discussions and announcements that accompany the conduct of the plan, and though it is not material from a legal standpoint, the testimony itself discloses that there is a considerable decrease in the attendance at the theater on nights when these drawings are made, as compared with the attendance on the nights of the drawing under the "Jack Pot Night" plan, thus emphasizing, it is argued, the legal vice of the requirement of purchasing a ticket under the "Jack Pot Night" plan and the entire absence of such vice under the present plan.
Article 17, § 7, of the Constitution of 1895, provides as follows: "No lottery shall ever be allowed, or be advertised by newspapers, or otherwise, or its tickets be sold in this State; and the General Assembly shall provide by law at its next session for the enforcement of this provision."
Pursuant to this constitutional provision, the Legislature enacted statutes which now paper in the Code at §§ 1231 to 1233, inclusive. These sections are as follows:
"§ 1231. Penalty for Setting up Lotteries. — Whoever shall publicly or privately erect, set up or expose to be played, drawn at, or shall cause or procure to be erected, set up, exposed to be played, drawn or thrown at, any lottery, under the denomination of sales of houses, lands, plate, jewels, goods, wares, merchandise or other things whatsoever, or for money, or by any undertaking whatsoever, in the nature of a lottery, by way of chances, either by dice, lots, cards, balls, numbers, figures, or tickets, or who shall make, write, print or publish, or cause to be made, written, or published, any scheme or proposal for any of the purposes aforesaid, and shall be convicted of any of the offenses aforesaid, on any indictment for the same, at the Court of General Sessions, shall forfeit the sum of one thousand dollars, one-third part thereof to and for the use of this State; one-third part thereof to the informer, and the other third part thereof to the county where the offense shall be committed; and shall, also, for every such offense, be committed by the said Court to the common jail for the space of twelve months.
"§ 1232. Penalty for Adventuring in Lotteries. — Whoever shall be adventurer in, or shall pay any moneys or other consideration, or shall in any way contribute unto or upon account of, any sales or lotteries, shall forfeit, for every such offense, the sum of one hundred dollars to be recovered, with costs of suit, by action or indictment in any court of competent jurisdiction in this State, one moiety thereof to and for the use of the State, and the other moiety thereof to the person or persons who shall inform and sue for the same.
"§ 1233. Penalty for Selling Lottery Tickets. — It shall be unlawful to offer for sale any lottery tickets, or to open or keep any office for the sale of lottery tickets; and if any person shall offend against any of the provisions of this section, he shall, on conviction thereof, forfeit and pay to the State a sum not exceeding ten thousand dollars; and it shall be the duty of the county treasurer of the county to prosecute the offender."
It will be observed that if § 1231 is applicable to the plaintiff's case, then under the provisions of § 1232 every person who causes or knowingly permits his name to be included in the list from which plaintiff makes its drawings is liable to suit for a penalty of $100.00, even though the person never bought any theater ticket or paid any other consideration, and even though he did not appear on the scene when the drawing was made, or obtain any benefit from the drawing. For undoubtedly § 1232 must be taken to subject to penalties persons other than the promoters who participate in the scheme complained of.
Section 1231, with which we are particularly concerned here, is directed at one who shall "publicly or privately erect, set up or expose to be played, drawn, or thrown at, any lottery, under the denomination of sales of houses, lands, plate, jewels, goods, wares, merchandise, or other things whatsoever, or for money, or by any undertaking whatsoever, in the nature of a lottery, by way of chances, either by dice, lots, cards, balls, numbers, figures, or tickets."
Taking first a liberal application of the statute, there is here no scheme for the issuance or delivery of tickets for money, and no scheme to give any of the articles mentioned in the statute "or other things whatsoever" by way of a game of chance. Unlike the case of Rountree v. Ingle, 94 S.C. 231, 236, 77 S.E., 931, 45 L.R.A., N.S., 776, Ann. Cas., 1915-A, 1002, and numerous other cases of a similar character decided in many jurisdictions, there is here no liking up of the sale of merchandise or of theater tickets with the giving of the money. The case must stand or fall on the right of the plaintiff to give away, without any other consideration than that which flows from intensive advertising methods of this modern era of business promotion, such sums of money as in its opinion may be conducive to getting its theater talked about and thereby advertised in the usual channels from which its patronage normally comes. The case is only one step removed from a situation in which a theater might on a given occasion, without previous notice, give away to some person, in or out of the theater, some sum of money, solely for the purpose of getting the theater talked about. It could hardly be material whether that person is selected from a telephone book, a city directory, a publisher's mailing list, or a list arbitrarily made up by the theater management. Such a case could hardly be said to come within the statutory prohibition.
Is the case altered by the fact that the present theater gives the money away in a substantially similar manner at a time and place previously announced, and to one of a list of persons that includes anyone who may request that his name be placed on the list?
It is not to be overlooked that the statutory prohibition is not only against a lottery in the usual acceptation of that term; it extends also to any scheme "in the nature of a lottery, by way of chances", etc.; and while a given scheme may be "in the nature of a lottery" without being a lottery in a strict sense, it is not doubted that the quoted words were intended to cover only schemes which have the distinctive characteristics of a lottery, but which might lack some of the specific elements described in the statute.
Where no price is paid for tickets, but in order to win a person must purchase something else, this would be included in the definition of a nature of a lottery. For instance, where the winner must have purchased a ticket to the theater on the day of the drawing or on some other day, that would be a monetary consideration, and such a scheme would be in the nature of a lottery. However, under the plan adopted by this theater, there is absolutely no direct or indirect consideration passing from the winner or other person whose name has been enrolled, and if the theater derives any benefit through advertising it is too remote to be called a consideration.
In other words, it seems to me that the statute will not bear the construction that any scheme that involves an element of chance comes within the prohibition. It would not, for example, cover the familiar case of the advertising scheme under which merchandise is awarded for the solution of puzzle, where the first correct solution of the puzzle may be awarded the prize, although numerous other correct solutions might follow; and it could hardly cover the various forms of gambling in which chips, tickets, or other devices are used in connection with card games. The statute is undoubtedly directed at a particular type of gaming or gambling which has become commonly known as a lottery, and not the prohibition of games of chance of all kinds. The gaming statutes, statutes against betting at races, and similar legislation bear ample evidence of the distinction.
And when the extraordinary severity of the penalties imposed by the statute are considered — including both fine and imprisonment — it is apparent that the constitutional and legislative prohibition is directed at a special type of vice in the fields of advertising and gift enterprises — the type that has come to be denominated both in the law and in common parlance by the word lottery.
While the construction of the statute will not be narrowed by the Court so as to defeat its purpose, or to restrict its scope, it is also to be recognized that the Court, dealing as it is with a penal statute involving severe penalties, will not extend the scope of the prohibition by a liberal construction of the words used, but will give to the statute only such construction as is reasonably demanded by such words. As generally expressed, any doubt as to the proper construction of the statute will be resolved in favor of the citizen against the State. State v. Lewis, 141 S.C. 207, 139 S.E., 386.
Many of the authorities on this subject will be found collated in the several series of Words and Phrases, under the title "Lottery" and in an annotation in 103 A.L.R., 866. Text statements with compilations of pertinent cases are found in 38 C.J., 286 et seq., 17 R.C. L., 1209, et seq. From all of the cases the principle is deduced that to constitute a lottery, or a scheme in the nature of a lottery, it is essential that three elements be present, to wit: (1) The giving of a prize, (2) by a method involving chance, (3) for a consideration paid by the contestant or participant. The concurrence of the first and second elements is not sufficient. The element of illegality is introduced only when the third element is present.
"Where not otherwise defined by statute the word `lottery,' whether coming up for construction in a criminal prosecution or in a civil proceeding, cannot be regarded as having any technical legal signification different from the popular one, and it is, therefore, a species of gaming, which may be defined as a scheme for the distribution of prizes or things of value by lot or chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize; or as a game of hazard in which small sums of money are ventured for the chance of obtaining a larger value, in money or other articles." 38 C. J., 286.
"In conformity with the definitions already stated it is obvious, as has been repeatedly stated, that the three necessary elements of a lottery are the offering of a prize, the awarding of the prize by chance, and the giving of a consideration of an opportunity to win the prize." 38 C.J., 289.
"Consideration paid or passed in exchange for the chance to secure a prize is an essential element of a lottery. There is no law which prohibits the gratuitous distribution of one's property by lot or chance." 38 C.J., 291.
"The word `lottery' it has been held, has no technical, legal meaning but must be construed in the popular sense. It has been variously defined by lexicographers, legal authors, judges, and, in some instances, by statute; and Webster's definition, `a scheme for the distribution of prizes by lot or chance,' has been quoted with approval by numerous authorities, and also Worcester's definition as `a distribution of prizes and blanks by chance, a game of hazard in which small sums are ventured for the chance of obtaining a larger value either in money or in other articles.' Other definitions often adopted by the Courts are: `Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery'; and `A scheme by which a result in reached by some action or means taken, and in which result man's choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished.' An example of a statutory definition of a lottery is, `A scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether a lottery, raffle, or gift enterprise or by some other name.' The Supreme Court of the United States has quoted the following definition under the word `Lottery,' contained in the Century Dictionary: `A scheme for raising money by selling chances to share in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets, the correspondingly numbered slips, or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes.'" 17 R.C.L., 1209-1210.
"The three essential elements of a lottery are: first, consideration; second, prize; and third, chance. To make a lottery, these three elements or ingredients must be present; chance alone will not do so, nor will chance even when coupled with consideration alone. In regard to the element of consideration, it has been said that the species of lottery which is intended to be prohibited as criminal by the variout laws of this country embraces only schemes in which a valuable consideration of some kind is paid, directly or indirectly, for the chance to draw a prize; and that the gratuitous distribution of property by lot or chance, if not resorted to as a device to evade the law, and if no consideration is derived directly or indirectly from the party receiving the chance, does not constitute a lottery." 17 R.C.L., 1222.
"The majority of the decisions since the earlier annotation have reiterated, in more or less similar words, the statement quoted in the original annotation from 17 R.C. L., p. 1222, to the effect that the three essential elements of a lottery are: (1) Consideration; (2) prize; and (3) chance. To make a lottery, these three elements or ingredients must be present; chance alone, or chance coupled with consideration alone, will not do so." 103 A.L.R., 866, Annotations.
Even under the Federal statutes relating to non-mailable matter, which are far broader than the South Carolina lottery law, "the giving away of property or prizes is not unlawful, nor is the gift made unlawful by the fact that the recipient is determined by lot. * * * To constitute a lottery there must be a further element, and that is the payment of a valuable consideration for the chance to receive the prize." State v. Hundling, 220 Iowa, 1369, 264 N.W., 608, 609, 103 A.L.R., 861. Post Publishing Company v. Murray, 1 Cir., 230 F., 773.
As stated in the case of State v. Eames, 87 N.H. 477, 183 A., 590, 592, wherein a similar question to that involved in the case at bar was presented, the Court said: "The problem presented by `bank night' and similar schemes is to determine whether it is an evasion of the statute or an avoidance of it, and this question is essentially one of fact. * * * The test by which to determine the answer to this question is not to inquire into the theoretical possibilities of the scheme, but to examine it in actual practical operation. If * * * `the great majority of people pay for such privilege,' then it is an evasion and as such is not to be countenanced. * * * however, free participation is a reality. * * * then, regardless of the motive which induced the defendant to give such free participation, the scheme is not within the ban of the statute. Violation is shown only when, regardless of the subtlety of the device employed, the state can prove that, as a matter of fact, the scheme is actual operation results in the payment, in the great majority of cases, of something of value for the opportunity to participate."
As stated in the last-cited case, the signing of one's name in a book from which the names are taken for the drawing of prizes given in a theater, where no consideration is paid for the signing of the book, or for the right to participate in the drawing, "cannot be called `pay' without warping the word out of all recognition. For the purpose of creating a lottery, consideration must be something of value."
The statute involved in this case provided that "No person shall make or put up a lottery or pretended lottery, or shall dispose of, or offer or pretend to dispose of, any money or property, real or personal, by lottery, or in any such way that a hope or expectation of gain by luck or chance is made an inducement to pay for such property, or for any share or chance therein." Pub. Laws 1926, c. 384, §
The distinction that needs to be drawn in the present case is clearly pointed out in the case of Cross v. People, 18 Colo., 321, 32 P., 821, 36 Am. St. Rep., 292. In that case the scheme before the Court involved the distribution by a merchant of business cards, entitling the holders thereof to a chance in a drawing for a piano. The cards were given indiscriminately to anyone who applied for them, whether they purchased goods at the store or not. Distinguishing this case from a case in which chances are given only to purchasers of goods at a store, the Court held that the scheme did not constitute a "lottery and gift enterprise" within the meaning of the Colorado statutes.
In the case of Post Publishing Company v. Murray, supra, discussing the scheme there involved, the Court said (230 F., 775): "It did not present a lottery scheme, because a lottery involves a scheme for raising money by selling chances to share in a distribution of prizes — a scheme for the distribution of prizes by chance among persons purchasing tickets. It was not a gift enterprise, because a gift enterprise contemplates a scheme in which publishers or sellers give presents as an inducement to members of the public to part with their money. Nor did it present the kind of lot or chance which the act of congress was striking against, because the particular kind of chance involved in the advertisement in question did not require a parting with anything by members of the public for the prize offered." (Italics added.)
Reverting to the authorities cited on behalf of the defendants, the nearest approach to the present case is that of Maughs v. Porter, 157 Va., 415, 161 S.E., 242. In this case an automobile was to be given away at a public sale of residence lots. Every person attending the sale was afforded an opportunity to get his or her name into the receptacle from which the drawing would be made for the awarding of the car. In a civil suit resulting from the failure of the promoters to carry out their undertaking after the drawing was made, the Court of Appeals of Virginia held that the scheme constituted a lottery. The Court recognized that such a holding could follow only from the basic fact that there was some consideration passing from the ticket holder to the promoter, and the Court ruled that such a consideration existed in the fact that the participant suffered the detriment of attending the sale for the purpose of entering into the drawing when she had no other reason and no obligation so to do. This holding, however, is not in accord with the general current of authority in America, and has met with pointed criticism. See Univ. Pa. Law Review, Vol. 80, p. 744; Va. Law Review, Vol. 18, p. 465; State v. Hundling, supra.
In all events, the Maughs case is clearly distinguishable from the present case in two particulars. If voluntary attendance, without obligation, is a legal consideration for participation in a drawing, that element is not present here, for actual attendance at the drawing in the present case is not a requirement of the winner. Aside from this, the Maughs case is clouded by the fact that the complaining winner in that case was compelled to pay the auctioneer $5.00 for his services in drawing the lucky number, thus introducing a distinct element of "consideration" of an indubitable character.
Having found as a fact from the undisputed testimony in the case that the distribution of money by the plaintiff involves no payment of money or the parting with any other consideration on the part of the participants, and there being nothing in the testimony to show that the present plan involves any subterfuge or fraud in an attempt to evade the provisions of the applicable statute, I am constrained to hold that under the overwhelming weight of authority the present case involves no violation of the lottery law of South Carolina, and that the plaintiff is accordingly entitled to the relief prayed.
It is, therefore, ordered and adjudged that the defendants and all persons acting under their direction and control be, and they hereby are, restrained and enjoined from interfering with the plaintiff, its officers and employees, in the operation of the plan hereinbefore described.
Mr. Sidney S. Tison, Solicitor, for appellants, cites: Lottery defined: 94 S.C. 236; 77 S.E., 931; 2 N.E.2d 38; 267 N.E., 602; 203 P., 21; 171 So., 426; 3 N.E.2d 28; 8 N.E.2d 648; 275 N.W., 650; 100 S.W.2d 695; 250 P., 37; 48 A.L.R., 1109; 62 P.2d 929; 109 A.L.R., 698; 213 N.W., 107; 11 F. Supp. 566; 95 S.W.2d 310; 67 P.2d 286; 7 L.R.A., 599; 6 N.E.2d 410; 183 A., 590; 109 A.L.R., 866; 103 A.L.R., 709. Consideration: 64 F.2d 224; 151 S.E., 242.
Messrs. E.C. Dennis, Jr., Samuel Want, James S. Verner and Sam Rogol, for respondents, cite: Avoiding and evading differentiated: 240 U.S. 625; 60 L.Ed., 830; 51 F.2d 224; 302 U.S. 609; 82 L.Ed., 474; 69 F.2d 809; 293 U.S. 465; 79 L.Ed., 596; 97 A.L.R., 1355. Lottery: 2 Mill, 128; 94 S.C. 236; 77 S.E., 931; 103 A.L.R., 866; 38 C.J., 286; 17 R.C.L., 1209; 17 R.C.L., 1222; 230 F., 773; 173 N.W., 101; 73 N.W., 1059; 264 N.W., 608; 1 A.2d 51; 183 A., 590; 2 N.E.2d 38; 3 N.E.2d 28; 95 S.W.2d 310; 28 P.2d 99; 10 S.W.2d 124; 36 A.S.R., 292; 67 P.2d 286; 7 L.R.A., 599; 57 A.L.R., 421.
May 10, 1939. The opinion of the Court was delivered by
This appeal is a consolidation of two actions brought by the owners, respectively, of the Liberty Theatre in Darlington, and the Center Theatre in Hartsville, to obtain an injunction against the peace officers of the State, county and respective towns, prohibiting them from interfering with the operation in such theaters of an advertising or promotion plan. It is charged in the complaints that the defendants were threatening to arrest the theater owners or managers on the ground that the plan in question constitutes a violation of the lottery laws of this State. The respondents allege that they are threatened with a multiplicity of arrests, or with the need of instituting a multiplicity of actions to protect their rights, and that in general the threatened actions of the appellants would subject the respondents to prohibitive expense and to irreparable injury and damage.
The plan of advertising or promotion adopted by the respondents was to obtain a list of names by having persons voluntarily place their signatures on cards, they receiving no consideration directly or indirectly therefor. These cards were placed in a receptacle, and became a part of the permanent set up. Those not desiring the cards bearing their names to be a part of the permanent set up, may apply on the day that the prize was to be awarded for special cards for that occasion. This card was placed in the same receptacle with the cards in the permanent set up, but were designated by a different color, as they would be good only for that occasion.
On a given night a disinterested person would draw a card from the receptacle, and the person whose name is drawn would be entitled to the prize money offered for that day. In order that the person whose name is drawn to receive the prize, it is not required that such person be in the theater; the award is announced in the theater and at the same time outside of the theater. While it is not required that in order to make one eligible to obtain the award that such person be in the theater, the winner of the award is given ten minutes within which to reach the theater and obtain the award, but in order to receive the award that person is not required to pay admission into the theater. The evidence shows that the time allowed to reach the theater is ample for anyone living in the City of Darlington and the City of Hartsville.
If it so happened that the one whose name is drawn did not claim the award, the award for that occasion is held until another designated night, when the award is doubled, and if the one whose name is drawn on that occasion does not claim the award, the amount is then trebled for the next week's drawing, and so on until an award is claimed. The price of admission to the theaters remained the same on the nights of the drawing as was charged on other nights.
The respondents applied to Hon. E.C. Dennis, Circuit Judge, for an order permanently restraining the appellants from interfering with them in the operation of their plan of advertising or promotion. The cases were referred to the Master for the purpose of taking the testimony, and they coming before the Circuit Judge for final determination, Judge Dennis in a very careful and thoroughly prepared decree, sustained the contention of the respondents that the plan in question does not come within the scope of a lottery, as contemplated by our Constitution and statutes, and thereupon granted the injunction prayed for.
The question presented is whether or not the plan of the respondents set out herein, involving a distribution of money, without consideration on the part of the participants, constitutes a violation of the Constitution and statutory law of our State, prohibiting the setting up or operating of a lottery or an undertaking in the nature of a lottery.
We might well content ourselves with merely affirming the decree of Judge Dennis, for we are entirely satisfied with his reasoning and conclusions set forth therein, but we would add the following observations:
A plan which openly seeks to avoid the terms of a statute is a lawful one, but one which seeks to evade the statute is an unlawful one. See Bullen v. Wisconsin, 240 U.S. 625, 36 S.Ct., 473, 60 L.Ed., 830; Helvering v. Gregory, 2 Cir., 69 F.2d 809, Id., 293 U.S. 465, 55 S.Ct., 266, 79 L.Ed., 596, 97 A.L.R., 1355; Minnesota Tea Co. v. Helvering, 302 U.S. 609, 58 S. Ct 393, 82 L.Ed., 474. The plan of the respondents was for the purpose of avoiding, not evading the law.
In these cases we have been concerned with the application and construction of our Constitution and legislative enactments on the subject. If plans of this nature are inimicable to public welfare, then it would be a matter for legislative action, and not one for the Courts.
The order of Judge Dennis will be reported.
The Judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICE BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.