Coca-Cola Bottling Co. of Wisconsin v. La Follette
Decision Date | 19 January 1982 |
Docket Number | COCA-COLA,No. 81-719,81-719 |
Citation | 316 N.W.2d 129,106 Wis.2d 162 |
Parties | BOTTLING COMPANY OF WISCONSIN, Plaintiff-Appellant and Cross- Respondent, v. Bronson C. La FOLLETTE, Attorney General for the State of Wisconsin, Defendant-Respondent and Cross-Appellant. * |
Court | Wisconsin Court of Appeals |
Cook & Franke, S. C., by Francis R. Croak, Kevin J. Lyons and Jan E. Kearney, Milwaukee, for plaintiff-appellant and cross-respondent.
Bronson C. La Follette, Atty. Gen. and James C. McKay, Jr., Asst. Atty. Gen., for defendant-respondent and cross-appellant.
Before DECKER, C. J., MOSER, P. J., and RANDA, J.
This appeal concerns the applicability of secs. 100.16 and 945.01, Stats., to Coca-Cola's "Real Caps" under-the-crown contest. We conclude that the promotion is not proscribed by either statute, reverse that portion of the judgment finding a violation of sec. 100.16, and affirm that portion finding no violation of ch. 945.
The material facts of this case are undisputed, and both parties moved the trial court for summary judgment. See Powalka v. State Mutual Life Assurance Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972).
Coca-Cola Bottling Company of Wisconsin (Coca-Cola) manufactures and sells bottled beverages. On March 2, 1981, Coca-Cola began a sales promotion program known as the "Real Caps" contest in which consumers could win between 10cents and $1,000, depending on what, if anything, was printed under the liner of specially marked Coca-Cola bottlecaps. The specially marked bottlecaps were available on bottles of Coca-Cola sold in retail outlets, or could be obtained without charge by mail or in person from Coca-Cola business offices. The odds of winning were posted at participating retail outlets, publicized in newspaper ads, and printed on cards accompanying each carton of specially capped Coca-Cola. All of the specially marked bottlecaps, those with and without something printed under the cap liner, were placed in one pool which was then randomly divided into two pools, one for free distribution and the other for actual capping of bottles to be sold to consumers.
Coca-Cola brought suit seeking declaration that the Real Caps contest did not violate secs. 100.15, 100.16, and ch. 945, Stats. 1
The Attorney General brought suit against Coca-Cola to enjoin the Real Caps contest, alleging violation of secs. 100.16 and 945.03(4), Stats. The actions were consolidated at the request of the parties, and hearings were held regarding preliminary injunctive relief. The trial court concluded that the contest violated secs. 100.16 and 939.05, 2 but not ch. 945, and at the request of the parties granted summary judgment, permanently enjoining Coca-Cola from proceeding with the contest because it violated secs. 100.16 and 939.05, and permanently enjoining the Attorney General from enforcing ch. 945 regarding the contest.
Coca-Cola appeals, contending that the Real Caps contest does not violate sec. 100.16, Stats. The Attorney General cross appeals on two grounds:
(1) the contest violates ch. 945, Stats., as well as sec. 100.16; and
(2) the Attorney General cannot be restrained from enforcing criminal laws.
Wisconsin's substantive law on lotteries is governed by art. 4, sec. 24, of the Wisconsin Constitution. Before 1965, this provision stated, "The legislature shall never authorize any lottery, or grant any divorce." In 1965, this provision was amended to remove the constitutional obstacle to certain forms of lotteries:
The legislature shall never authorize any lottery, or grant any divorce. Except as the legislature may provide otherwise, to listen to or watch a television or radio program, to fill out a coupon or entry blank, whether or not proof of purchase is required, or to visit a mercantile establishment or other place without being required to make a purchase or pay an admittance fee does not constitute consideration as an element of a lottery. 3
The constitutional modification was followed by the enactment of sec. 945.01(2), Stats:
(2) Lottery. (a) A lottery is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill.
(am) "Lottery" does not include bingo or a raffle as defined in s. 163.03 if conducted under ch. 163.
(b) 1. "Consideration" in this subsection means anything which is a commercial or financial advantage to the promoter or a disadvantage to any participant, but does not include any advantage to the promoter or disadvantage to any participant caused when any participant learns from newspapers, magazines and other periodicals, radio or television where to send his name and address to the promoter.
2. In any game, drawing, contest, sweepstakes or other promotion, none of the following shall constitute consideration under this subsection:
a. To listen to or watch a television or radio program.
b. To fill out a coupon or entry blank which is received through the mail or published in a newspaper or magazine, if facsimiles thereof or handwritten and other informal entries are acceptable or if no purchase is required.
c. To furnish proof of purchase if the proof required does not consist of more than the container of any product as packaged by the manufacturer, or a part thereof, or a facsimile of either.
d. To send the coupon or entry blank and proof of purchase by mail to a designated address.
e. To fill out a coupon or entry blank obtained and deposited on the premises of a bona fide trade fair or trade show defined as an exhibition by 5 or more competitors of goods, wares or merchandise at a location other than a retail establishment or shopping center or other place where goods and services are customarily sold; but if an admission fee is charged to such exhibition all facilities for obtaining and depositing coupons or entry blanks shall be outside the area for which an admission fee is required.
f. To fill out a coupon or entry blank obtained and deposited on the premises of a mercantile establishment if no admission fee or purchase is required.
At common law, there are three elements of a lottery-a prize, chance, and a consideration. Kayden Industries, Inc. v. Murphy, 34 Wis.2d 718, 724-25, 150 N.W.2d 447, 450 (1967). The parties to this appeal agree that the Real Caps contest exhibits two of the elements, a prize and chance, but dispute the existence of consideration.
Section 945.01(2)(b)2.c., Stats., provides that it is not consideration "(t)o furnish proof of purchase if the proof required does not consist of more than the container of any product as packaged by the manufacturer, or a part thereof, or a facsimile of either." The Attorney General concedes that the specially marked bottlecaps which must be furnished for entry in the lottery are proof of purchase consisting of no more than part of the beverage container as packaged by Coca-Cola. He argues, however, that the statute requires Coca-Cola to accept a facsimile in lieu of a bottlecap, which it asserts Coca-Cola does not do. The Attorney General asserts that Coca-Cola only accepts bottlecaps, and the fact that some are available free of charge does not change the fact that they are Coca-Cola bottlecaps, and not facsimiles.
Assuming arguendo that this section of the statute requires acceptance of facsimiles, 4 we reject the Attorney General's argument. He implies that a facsimile ceases to be a facsimile when it is undistinguishable from the original. In so doing the distinction used in the statute is ignored. An original proof of purchase is defined in the statute as a container (or part thereof) of a product as packaged by the manufacturer. Bottlecaps used in the actual packaging of the product are original proofs of purchase within this definition; bottlecaps never affixed to bottles or otherwise used to package the product are facsimiles thereof. The distinction made crucial by the plain meaning of the statute is not whether the original proof of purchase and the facsimile are made differently, but whether they are used differently by the manufacturer. Here, one class of bottlecaps is used as part of the container of a product as packaged, and the other is not. The latter are facsimiles. We affirm that portion of the trial court's judgment finding no violation of ch. 945, Stats.
The trial court found that the Real Caps contest violated sec. 100.16, Stats., 5 which states:
Selling with pretense of prize. No person shall sell or offer to sell anything whatever, by the representation or pretense that a sum of money or something of value, which is uncertain or concealed, is inclosed within or may be found with or named upon the thing sold, or that will be given to the purchaser in addition to the thing sold, or by any representation, pretense or device, by which the purchaser is informed or induced to believe that money or something else of value may be won or drawn by chance by reason of such sale.
Coca-Cola argues that this section was impliedly repealed by the amendment to Wis.Const. art. 4, sec. 24, codified in 945.01(2), Stats. The Attorney General argues that the statute is not affected by the amendment because it regulates sales, not lotteries, and that the statute proscribes the Real Caps contest as a sales promotion regardless of whether as a contest it does not violate Wisconsin's lottery law. This result, the Attorney General claims, is mandated by literal application of sec. 100.16, which is claimed to be unambiguous, precluding judicial construction.
Section 100.16, Stats., contains all of the elements of a lottery-a prize, chance, and a consideration. The consideration proscribed by sec. 100.16 is sale by a retailer. Section 945.01(2)(b)2.c. removes from the definition of consideration the furnishing of proof...
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