State v. Stern , 201 Minn. 139 ( 1937 )

With most of what Mr. Justice Holt has written I am in accord. But there are some matters to which I cannot agree for reasons now to be stated.

Here, as in practically all of this type of cases, there is no dispute that at least two of the elements involved in a lottery appear, chance and prize. The third element, price (or consideration), is the point of cleavage. That is why it is impossible to harmonize the decisions bearing upon this subject. Defendant's argument has for its foundation the claim that because registration was free to anyone willing to register and that such registrant had the same chance of drawing the lucky number as one who bought a ticket to the show therefore the price (consideration) element is lacking; hence that the scheme is an advertising medium only and not a lottery.

It seems clear to me that "bank night" cannot by any stretch of the imagination be called a donation or a gratuitous distribution of one's property. Theatre owners are not generally known as "benevolent philanthropists." What the owners of the Dale Theatre sought and what defendant sold them was not a scheme to fill the lobby or the adjacent sidewalks, but rather and only to fill this theatre with paying patrons. They were employing this method to increase attendance at their theatres in order to increase profits. And that this is the result hoped for and sought to be accomplished is what they bought and defendant sold, otherwise why would they be paying their good money for this service?

"The life of the law has not been logic; it has been experience." Holmes, The Common Law, p. 1.

How can we as judges "pretend ignorance of what all mankind knows?" Robinson v. State, 185 Ind. 119, 125, 113 N.E. 306,308. What member of this court, or anyone else for that matter, can say that bank night is not the night when one "must go to the movies?" What town, large or small, having a moving picture show, is not jammed to the doors on such occasions? And if the purse has increased from time to time because the "lucky" number has in the past not found any claimant, does it not follow that as each succeeding bank night approaches the crowding of the show place and the areas adjacent thereto has become a common nuisance to other citizens whose craze for getting something for little or nothing has not led them astray?

Constitutional and statutory inhibition, to which should be added plain common sense as well, combine against lotteries and gambling in all forms. Looking at this matter realistically, we cannot close our eyes to the evil results that have flowed from the bank night scheme.

In Jorman v. State, 54 Ga. App. 738, 188 S.E. 925, 927, defendant was convicted of operating a lottery. There, as here, defendant urged that bank night patrons were entitled to a chance whether they bought theatre tickets or not. The court, however, concluded (54 Ga. App. 741):

"It cannot alter the fact that the operator may have given free chances to some without the purchase of tickets; even so, the lottery scheme as to a gift enterprise was present to all the rest, and this fact did not prevent it from being a lottery under the law of Georgia."

The court then proceeds to discuss State v. Danz, 140 Wash. 546,250 P. 37, and quotes as follows (48 A.L.R. 1109):

"The distribution by a theater of produce contributed by merchants for advertising purposes as an additional attraction one night each week, according to numbers designated by chance on tickets furnished with the tickets of admission, may be found to be within the prohibition of a statute defining a lottery as a scheme for the distribution of money or property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, and it is immaterial that free tickets to the drawing are offered to persons not purchasing theater tickets."

In Commonwealth v. Wall (Mass.) 3 N.E.2d 28, 30, the court said:

"A game does not cease to be a lottery because some, or even many, of the players are admitted to play free, so long as others continue to pay for their chances."

In State v. Danz, 140 Wash. 546, 548, 549, 250 P. 37, 38,48 A.L.R. 1109, the court said:

"If in the flourishing days of the Louisiana lottery its management had advertised that it would give a free ticket to the president of every bank in the city of New Orleans, that would not have changed the scheme from a lottery, whether or not any one or all of such free tickets were accepted."

The post office department of our government has uniformly held that the bank night scheme is a lottery upon the theory that any benefit going to the promoter of a scheme or any inconvenience suffered by a contestant such as going to a place of business to register his name and address is sufficient to constitute the element of consideration. As a consequence, the words "bank night" inserted in advertisements relating to schemes to distribute to purchasers of admission tickets or merchandise chances in a drawing for prizes is a violation of the law. Then in the very late case of Cole v. State,112 S.W.2d 725, 728, the Texas court of criminal appeals held the bank night scheme there to be illegal, and amongst other things said:

"In short, we think it does not materially affect the scheme that there be a possibility that some one might get a prize who had not paid for a ticket. It is so plain as to be evident that appellant's purpose was, from no angle and in no sense, to induce people not to buy tickets to the show, but to rely on the fact that their names were on his book. Such proposition would be entirely opposed to his purpose and plan, which was — as frankly admitted by him — to increase the patronage of his show. No sane man would believe for a moment that appellantwould continue for an extended period, as appears here, tooperate a scheme the result of which would or could lose himmoney." (Italics supplied.)

And in Affiliated Enterprises, Inc. v. Gantz (C.C.A.)86 F.2d 597, 599, the court in speaking of the bank night plan or system as portrayed in its copyrighted sheets said: "This seems to be a subterfuge to escape the stigma of being a lottery." And further, "how can it be maintained that the supposed evasion [attempted to be afforded by the system] converted a lottery or gambling device into a mere altruistic opportunity and occasion to bestow a gift."

The evils of all lottery schemes have long been recognized. As long ago as Phalen v. Virginia, 8 How. 163, 168,12 L. ed. 1030, 1033, the court said:

"The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple."

And in 38 C. J. p. 305 [§ 35], it is said:

"Statutes prohibiting or regulating lotteries should be construed with a view to remedying the mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief. Therefore, where the question presented is one of enforcing criminal responsibility, * * * the courts will ordinarily construe liberally the provisions relating to lotteries so as to include all schemes which appeal to the gambling propensities of men."

An interesting and instructive article, (Hensley) "TheLegality of Theater Bank Nights," is found in 1 The American Lawyer (1937) p. 5. The cases bearing upon this subject are there adequately analyzed, and the conclusion reached by the writer of that article appeals to me as being sound. I quote (p. 13):

"We must not lose sight of the fact that the important factor in the determination of the character of such a scheme as that now under consideration is the substance; the name given to the process used to effectuate the object is of no consequence. It is idle to maintain that statutory and constitutional inhibitions meant to prohibit names and not things. Whatever it may be christened, or however well it may be guarded or masqueraded by cunningly devised conditions or deceptive screens, it is, under the law, what dispassionate and pragmatic analysis reveals it to be; and theoretical applications when at war with practical functioning must be ignored and discarded. If 'bank night' differs from ordinary lotteries, the difference lies chiefly in the fact that it is more ingeniously devised to disingenuously gull gullible courts. Many courts have looked beyond the mere factitious form of the transaction, and sought out and suppressed the obnoxious substance itself. It has been aptly said that 'the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.' Magdalen College Case, 11 Coke 71 b, 77 Eng. Reports 1235, 1242."

Defendant was charged with "wrongfully, unlawfully and wilfully by writing, printing and the distribution of films, and in other manner did advertise and publish an account of a lottery to take place at the Dale Theatre in St. Paul" on February 18, 1937. From July 30, 1935, until and including February 18, 1937, the Dale Theatre paid to defendant (or his solely controlled domestic corporation) $7.50 per week for using the films, trailers, and other paraphernalia furnished by his principal. If, as I think, "bank night" is a lottery (albeit artfully disguised), then the conclusion must follow that defendant was properly found guilty and that the judgment below should be affirmed.