Mobil Oil Corp. v. Attorney General

• Decision Date: 15 March 1972
• Parties: , 57 A.L.R.3d 1265 MOBIL OIL CORPORATION et al. v. ATTORNEY GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 406

280 N.E.2d 406

361 Mass. 401, 57 A.L.R.3d 1265

MOBIL OIL CORPORATION et al. v. ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 10, 1971.

Decided March 15, 1972.

George E. Donovan, Boston (William A. Ryan, Jr., Howard J. Wayne, and Roy P. Creedon, Cambridge, with him), for Mobil Oil Corp. and another.

Robert T. Capeless, Boston, for Glendinning Companies, Inc.

Timothy F. O'Leary Asst. Atty. Gen., for the Attorney General.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

BRAUCHER, Justice.

In this bill in equity filed in the county court, the plaintiffs seek a declaration that G.L. c. 271, § 6C, inserted by St.1968, c. 602, entitled, 'An Act prohibiting the giving of chances or the offering of prizes by gasoline stations' is unconstitutional as applied to them. The matter was reserved and reported, without decision, to this court by the single justice. We have before us the pleadings and a statement of agreed facts including a substantial number of lengthy exhibits.

The plaintiffs are Mobil Oil Corporation (Mobil), a New York corporation doing business in Massachusetts as both a wholesaler and retailer of motor vehicle fuels; Joseph G. Kulper, the owner of Four Mile Sales & Service in Westfield, who purchases gasoline from Mobil and sells it at retail; and Glendinning Companies, Inc. (Gledinning), a Connecticut corporation that plans, develops and arranges sales promotions, including promotional games and contests, and mails to its customers in Massachusetts the materials necessary to conduct such games and contests.

The defendant answered and counterclaimed, seeking a declaration that the statute is valid, that the continued use of game promotions is prohibited by G.L. c. 271, § 7, which prohibits lotteries, and that the game pieces used in connection with game promotions are a common nuisance under G.L. c. 271, § 20, which makes possession of lottery tickets unlawful. The defendant also filed a demurrer to the bill is so far as Gledinning may be a party thereto, for the reason that Glendinning lacks standing to challenge the constitutionality of the statute.

General Laws c. 271, § 6C, provides, 'No dealer or seller of motor vehicle fuel shall engage in, promote or in any way operate any contest or game by which a person may, be determined by chance, receive gifts, prizes or gratuities In connection with the sale of goods or services. This section shall apply to any such contest or game whether or not a purchase is required to participate therein' (emphasis added). Violations of the statute are punishable by either fine or imprisonment.

The facts are here set forth. Mobil is a wholesaler and retailer of motor vehicle fuel. Kulper is also a retailer of such fuel. However, the business operations of both Mobil and Kulper are not limited to the sale of motor vehicle fuel. At service stations operated by them, Mobil and Kulper compete with other merchants in the sale of tires, batteries, oil, anti-freeze and other automotive parts and accessories. Competition also exists between Mobil and Kulper and other merchants in providing related automotive services such as tire changing, car washing and lubricating as well as selling, installing and repairing sundry motor vehicle parts and accessories. Also, both companies compete with other merchants in the sale of nonautomotive products such as soft drinks, cigarettes and razor blades. All of these products and services are provided by Mobil and Kulper at the same premises as, and in connection with, the retail sale of motor vehicle fuel.

The financial data before us indicate that the sale of products other than motor vehicle fuel by Mobil and Kulper constitutes an important and substantial part of their overall business. For example, in the first six months of 1968, at the two service stations operated by it is the Boston selling area, Mobil sold more than $60,000 of products other than motor vehicle fuel. Also, during 1967, Kulper sold more than $10,000 of such products at his service station in Westfield. At wholesale, Mobil sold more than $1,467,131 of these nonfuel products in the Boston area in 1967 and about $1,284,560 of them in the first eight months of 1968.

The record before us also demonstrates that there are a substantial number of diverse businesses which compete with Mobil and Kulper in the sale of nonfuel products. These competing businesses include not only car washes, auto body shops, automobile repair garages and automobile dealerships, but also five and ten cent stores, automotive stores, department stores, discount stores, hardware stores, drugstores, variety stores and supermarkets.

Prior to the enactment of the statute now in controversy, Mobil utilized promotional games and contests at service stations operated by it and encouraged their use among service station dealers who bought motor vehicle fuel at wholesale from Mobil and resold it under Mobil's trade names. There was, however, no right on the part of Mobil to compel dealers to participate in the games. The record is devoid of any facts which would indicate that any compulsion was ever exerted. ¹ Although the admitted purpose of utilizing the games was to increase sales, no purchase was necessary to participate in the contests. The fact that a person could obtain a game piece without any purchase and without any payment upon visiting the participating station was made known to the public through extensive publicity.

The record before us indicates that those businesses which competed with Mobil and Kulper in the sale of nonfuel products also conducted promotional games and contests in connection with the sale of those products. ² The games and contests operated by these competing merchants were essentially similar to those that were operated by Mobil and Kulper, in that they each involved the giving, at a store, service station or other selling location, but without the requirement of a purchase or payment, of game pieces which alone or in combination with other game pieces might, as determined by chance, entitle the recipient to a prize. Finally, the exhibits before us demonstrate that substantial measures were taken by the plaintiffs to insure the fairness of the contests and that there was no significant difference in the retail prices charged by dealers using promotional games in contrast to the prices charged by dealers who did not use such games.

1. We consider first the defendant's counterclaim, in which he seeks a declaration that the continued use of game promotions is prohibited by G.L. c. 271, § 7, which outlaws lotteries, and that the game pieces used in connection with the games are a common nuisance under G.L. c. 271, § 20, which makes possession of lottery tickets unlawful.

The use of a counterclaim is permissible in suits for declaratory relief. Growers Outlet, Inc. v. Stone, 333 Mass. 437, 441, 131 N.E.2d 210. Also, the fact that we are here concerned with the possible enforcement of a criminal statute does not preclude us from rendering a declaratory decree. Sun Oil Co. v. Director of the Div. on the Necessaries of Life, 340 Mass. 235, 239, 163 N.E.2d 276. Commonwealth v. Baird, 355 Mass. 746, 755, 247 N.E.2d 574. From the viewpoint of the public prosecutor, the constitutionality of G.L. c. 271, § 6C, would have greatly reduced importance if the conduct in question were illegal in any event. The special provision for dealers or sellers of motor vehicle fuel might then have remedial or procedural significance, but it would not have great significance as a regulation of commercial conduct. A declaration that the special provision is constitutional or unconstitutional would have a meaning quite different if the conduct were independently illegal from its meaning if the conduct were otherwise legal. In these circumstances we think a declaration of the parties' rights is proper. Such a declaration will also, in our view, terminate the uncertainty and controversy attendant upon the widespread use of these games by others than gasoline sellers. G.L. c. 231A, § 9.

This court has consistently held that three elements must exist in order for any scheme to constitute a lottery. The three elements are payment of a price, a prize, and some element of chance. Commonwealth v. Wall, 295 Mass. 70, 72, 3 N.E.2d 28. Commonwealth v. Lake, 317 Mass. 264, 267, 57 N.E.2d 923. Commonwealth v. Rivers, 323 Mass. 379, 381, 82 N.E.2d 216. We have also stated that price means 'something of value and not merely the formal or technical consideration, such as registering one's name or attending at a certain place, which might be sufficient consideration to support a contract,' Commwealth v. Heffner, 304 Mass. 521, 523, 24 N.E.2d 508, and that 'the price must come from participants in the game in part at least as payments for their chances and that the indirect advantage to the . . . (one conducting a game at his place of business) is not in itself a price paid by participants.' Commonwealth v. Wall, 295 Mass. 70, 74, 3 N.E.2d 28, 30. Finally, we have emphasized that whether or not a particular scheme amounts to a lottery depends upon the particular facts and circumstances of each case. Commonwealth v. Heffner, 304 Mass. 521, 524--525, 24 N.E.2d 508.

In this case, the elements of chance and prize were present. In each case, persons calling at participating service stations were entitled to receive game pieces which by themselves or when matched with other game pieces might entitle the recipient to a prize. However, it was made clear to the public through frequent and clear advertising that participants were not required to make any payments or purchases in order to participate in the games. Nothing in the record indicates that this basic rule was not understood.

The defendant argues that the necessary price was present inasmuch as the use of the game increased the volume of business of the...