Mobil Oil Corp. v. Danforth

• Decision Date: 08 June 1970
• Docket Number: No. 54937,54937
• Citation: 455 S.W.2d 505
• Parties: MOBIL OIL CORPORATION, Respondent, v. John C. DANFORTH, Attorney General of Missouri, Appellant.
• Court: Missouri Supreme Court

Page 505

455 S.W.2d 505

MOBIL OIL CORPORATION, Respondent, v. John C. DANFORTH, Attorney General of Missouri, Appellant.

No. 54937.

Supreme Court of Missouri, En Banc.

June 8, 1970.

Rehearing Denied July 13, 1970.

J. William Dalgetty, Harry P. Thomson, Jr., George E. Leonard, Shughart, Thomson & Kilroy, Kansas City, for respondent.

John C. Danforth, Atty. Gen., Christopher S. Bond, Wayne H. Hoecker, Asst. Attys. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for appellant.

DONNELLY, Presiding Judge.

In this suit for declaratory judgment and injunctive relief, the trial court declared that plaintiff's promotional game 'International Flags' is not a lottery under Art. III, § 39(9), Const. of Mo. 1945, V.A.M.S., and § 563.430, RSMo 1959, V.A.M.S. (As amended Laws 1963, p. 684, § 1), and permanently enjoined and restrained defendant 'from directly or indirectly interfering with or impairing or hindering plaintiff from conducting its promotional game * * *.' Defendant appealed.

The rules of the proposed game provide that a licensed driver of an automobile may participate by going to a station selling Mobil procducts and obtaining 'on the driveway at the pumps,' 'in the lube bed,' or 'in the sales room,' a game piece and game card. He need not purchase anything, he may be a pedestrian, or he may be a passenger in an automobile.

When he opens the game piece, he may discover he has won up to $5, or he may receive a flag which may be affixed to the game card and which, with other flags in a required order, may entitle him to a prize of $5,000. He may turn in a winner at any participating Mobil station.

The number of persons who receive a game piece and do not purchase Mobil products is small.

Article III, § 39(9), supra, reads as follows:

'Section 39. The general assembly shall not have power: * * * (9) To authorize lotteries or gift enterprises for any purpose, and shall enact laws to prohibit the sale of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery.'

Section 563.430, supra, reads as follows: 'If any person shall make or establish, or aid or assist in making or establishing, any lottery, gift enterprise, policy or scheme of drawing in the nature of a lottery as a business or avocation in this state, or shall advertise or make public, or cause to be advertised or made public, by means of any newspaper, pamphlet, circular, or other written or printed notice thereof, printed or circulated in this state, any such lottery, gift enterprise, policy or scheme or drawing in the nature of a lottery, whether the same is being or is to be conducted, held or drawn within or without this state, he shall be deemed guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than two nor more than five years, or by imprisonment in the county jail or workhouse for not less than six nor more than twelve months, provided, however, that this section shall apply only where there is consideration in the form of money, or its equivalent, paid to or received by the person awarding the prize. As amended Laws 1963, p. 684, § 1.'

The words 'provided, however, that this section shall apply only where there is consideration in the form of money, or its equivalent, paid to or received by the person awarding the prize' were added by the General Assembly in 1963.

In Missouri, the 'elements of a lottery are: (1) Consideration; (2) prize; (3) chance.' State ex inf. McKittrick v. Globe-Democrat Pub. Co., 341 Mo. 862, 874, 110 S.W.2d 705, 713 (1937). The parties agree that 'prize' and 'chance' are present here. The dispute is over 'consideration.'

In State v. McEwan, 343 Mo. 213, 120 S.W.2d 1098(1938), a 'bank night' scheme at a theater was involved. Names of persons who purchased admission tickets and names of persons who were not required to purchase admission tickets were recorded in the theater's registration book. The names of all persons were drawn by lot. The person whose name was drawn, whether present in the theater or outside the theater without an admission ticket, could claim the prize by promptly coming forward to the stage inside the theater. This Court en Banc held the scheme a lottery.

The 'International Flags' game falls squarely within the prohibition of the McEwan case. There, the element of consideration was found even though some of the participants, paid nothing for the right to participate. Here, plaintiff contends the element of consideration is not present because participants need not pay anything for the right to participate although conceding the number of nonpurchasing participants would be small. If the McEwan case is to be followed, plaintiff's contention must fail.

The trial court explained his refusal to follow the McEwan holding by stating: 'I recognize * * * that one can go to various states of the union and come up with almost any kind of answer desired. However, I am particularly impressed with the case of Cudd v. Aschenbrenner, the decision of the Supreme Court of Oregon, en banc, in (233 Or. 272) 377 P.2d 150. I suppose that one of the reasons that I am impressed with it, is the fact that if we adopt the philosophy expounded in that decision, we completely dispose of the bank night cases, particularly the ones in our own jurisdiction, State v. McEwan, for example. This Court adopts the position that the legislature defined the element of consideration for our purposes. Had it not done so it might well be within the judicial competence to define it on a common sense basis, and this Court adopts the Cudd v. Aschenbrenner decision as properly expounding a correct contemporary view of the matter in light of our own constitutional and statutory provisions.'

The questions thus presented are:

(1) Did the General Assembly 'dispose of * * * State v. McEwan' when, in 1963, it defined consiaeration under § 563.430, supra, as 'money, or its equivalent, paid to or received by the person awarding the prize?'

In determining the question, the judicial function is well-expressed in Weems v. United States, 217 U.S. 349, at 378--379, 30 S.Ct. 544 at 553, 54 L.Ed. 793, wherein the Supreme Court of the United States said: 'We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked. Then the legislative power is brought to the judgment of a power superior to it for the instant. And for the proper exercise of such power there must be a comprehension of all that the legislature did or could take into account,--that is, a consideration of the mischief and the remedy. However, there is a certain subordination of the judiciary to the legislature. The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of its wisdom or propriety. They have no limitation, we repeat, but constitutional ones, and what those are the judiciary must judge. * * *'

In State ex rel. Dawson v. Falkenhainer, 321 Mo. 1042, 1046, 15 S.W.2d 342, 343 (1929), this Court en Banc said: 'The Legislature has no power to give to the Constitution and interpretation which would...