State v. Theatre Corporation , 114 Mont. 52 ( 1942 )

I concur in the foregoing opinion with emphasis on the question of consideration for the chance to win the prize. While I concur in what is said as to the constitutional question whether section 2 of Article XIX is self-executing, I do not regard that question as of same importance here as the question of consideration.

"It is quite generally recognized that there are three elements necessary to constitute a lottery: First, a prize to be given; second, upon a contingency to be determined by chance; and, third, to a person who has paid some valuable consideration or hazarded something of value for the chance." (State v.Hundling, 220 Iowa 1369, 264 N.W. 608, 609, 103 A.L.R. 861.) That is a leading case and for logic and sound reasoning it is unsurpassed.

A period of time, such as the time necessary for one to be at the place and within the time necessary to claim the prize, was never accepted as a valuable consideration in any kind of agreement until some courts found it necessary to go beyond all former adjudications wherein the question of consideration was involved, in order to bring Bank Night cases within the established rules of law relating to lotteries. Nor has the communistic idea that a part of the entire amount of money received by a theatre from the whole crowd present shall be held as having been given by the party who received the prize ever found lodgment in our laws until all rational rules of statutory construction were sacrificed so that Bank Night prizes could be classed as lotteries. Attempt has been made to separate "lotteries" from "gift enterprises." Our legislature clearly intended by the enactment of section 11149, Revised Codes, to place the two in the same category. Chapter 31 of the Penal Code is entitled "Lotteries," and that chapter contains all the statutes relating to lotteries and gift enterprises that we have, and section 11149 is a part of that chapter.

Our section 11149 goes further in defining lotteries than theHundling Case mentioned, by using the phrase "persons who have paid or promised to pay any valuable consideration for the chance."

In any law relating to gambling, or relating to the consideration to be paid in any contract or understanding between parties, the consideration shall be gauged in "money," the medium of exchange in the business world. (Sec. 7509, Rev. Codes.) Gambling will never become a menace to the morals of our people where the consideration for the chance taken is not so much money. Carrots and spinach have some value, but one never heard of a gambler wagering such property on the turn of the roulette wheel, or piling a sack of potatoes or a fat pig on a poker table in exchange for a stack of chips. Money is the gambler's medium of exchange. The irrational rules laid down in some cases in a search for a "consideration," given by the party who wins the prize at a Bank Night show, has been stretched to the point of utter absurdity. Legislatures have the power to ban Bank Night prizes if that branch of the government so desires, and there is no necessity for the courts to stultify themselves by exercising the legislative power reserved to another branch of government.

I concurred in the dissenting opinion of the Chief Justice in the former case of State ex rel. Dussault v. Fox MissoulaTheatre Co., 110 Mont. 441, 101 P.2d 1065, and now concur in overruling that case.