People ex rel. Ellison v. Lavin
| Decision Date | 05 August 1904 |
| Citation | 71 N.E. 753,179 N.Y. 164 |
| Parties | PEOPLE ex rel. ELLISON v. LAVIN, Police Officer. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Application by the people, on the relation of Ismar S. Ellison, for a writ of habeas corpus against Patrick Lavin, police officer, attached to the Court of Special Sessions of the city of New York. From an order of the Appellate Division (87 N. Y. Supp. 776) sustaining the writ and discharging relator, defendant appeals. Reversed.
William Travers Jerome, Dist. Atty. (Howard S. Gans and Samuel H. Guggenheimer, of counsel), for appellant.
John W. Ingram, for respondent.
The relator, the publisher of a trades newspaper known as the ‘United States Tobacco Journal,’ was arrested on a warrant issued by one of the justices of the Special Sessions of the city of New York, which charged him with a violation of section 327 of the Penal Code in having advertised a lottery within this state. The complaint and depositions on which the warrant was issued showed that the relator published the following advertisement:
‘The United States Tobacco Journal.
‘Save Cigar Bands.
‘Another Free Distribution of
‘$142,500.00
‘Will be Made in December, 1903
‘Based on the Month of November, 1903
‘To Smokers of
‘[Here follow the names of thirty brands of cigars.]
‘How many cigars (of all brands, no matter by whom manufactured) will the United States collect taxes on during the month of November, 1903?
‘(Cigars bearing $3.00 tax per thousand).
‘The persons who estimate nearest to the number of cigars on which $3.00 tax per thousand is paid during the month of November, 1903, as shown by the total sales of stamps made by the United States Internal Revenue Department during November, 1903, will be awarded as follows:
‘Every 100 Bands from Above-named Cigars will Entitle You to Four estimates.
‘(One band from ‘Florodora’ Cigars or one band from ‘Florodora Operas' counting as two bands from the other cigars mentioned; and no less than 100 bands will be received at any one time for estimates.)
‘Information which may be of value in making estimates: The number of cigars now bearing $3.00 Tax per thousand, for which stamps were purchased, appears below:
+---------------------------------------------+
¦ ¦1900. ¦1901. ¦1902. ¦
+---------+-----------+-----------+-----------¦
¦January ¦422,512,494¦488,806,638¦496,983,717¦
+---------+-----------+-----------+-----------¦
¦February ¦394,440,344¦417,196,433¦445,495,483¦
+---------+-----------+-----------+-----------¦
¦March ¦436,122,097¦445,641,761¦516,599,027¦
+---------+-----------+-----------+-----------¦
¦April ¦427,952,558¦481,870,212¦516,835,163¦
+---------+-----------+-----------+-----------¦
¦May ¦456,509,855¦553,187,580¦523,035,907¦
+---------+-----------+-----------+-----------¦
¦June ¦473,591,527¦500,693,908¦532,151,477¦
+---------+-----------+-----------+-----------¦
¦July ¦457,642,572¦501,318,407¦571,866,633¦
+---------+-----------+-----------+-----------¦
¦August ¦483,551,833¦485,441,753¦565,974,550¦
+---------+-----------+-----------+-----------¦
¦September¦474,787,902¦501,800,523¦575,804,470¦
+---------+-----------+-----------+-----------¦
¦October ¦532,205,063¦574,551,047¦628,881,303¦
+---------+-----------+-----------+-----------¦
¦November ¦508,258,250¦529,308,500¦562,444,393¦
+---------+-----------+-----------+-----------¦
¦December ¦467,092,208¦479,312,170¦...........¦
+---------------------------------------------+
‘Only Cigar Bands are Good for Estimates. Send Nothing but Cigar Bands under this Offer.
‘In case of a tie in estimates, the amount offered will be divided equally among those entitled to it. Distribution of the awards will be made as soon after December 1st, 1903, as the figures are obtainable from the Internal Revenue Department of the United States for November, 1903.
‘Write your full name and Post Office address plainly on packages containing bands. The postage or express charges on your package must be fully prepaid, in order for your estimate to participate.
‘All estimates under this offer must be received on or before October 31st, 1903, by the ‘Florodora Tag Company, Jersey City, N. J. ‘Send each estimate on a separate piece of paper with your name and address plainly written on each.
‘Handsomely illustrated 80-page catalogue (page 7 in, x 10 in.) showing 11 Presents exactly as they are, and with beautiful embossed cover lithographed in 10 colors and gold, will be mailed to any address upon receipt of 10 cents, or ten tags, or 20 cigar bands.’
On his arrest the relator sued out a writ of habeas corpus, and on the return thereto was discharged on the ground that the scheme advertised by him was not a lottery within the definition of the Penal Code, and that hence no crime was charged against him. The order of discharge was affirmed by the Appellate Division by a divided court, and from that order this appeal is taken.
Doubtless the purpose of the Florodora Company in establishing the system of competition for prizes detailed in the advertisement was to increase the sale of its various brands of cigars. For that purpose it was justified in using any innocent or legal means to attract customers, and even the Legislaturecould not, under the guise of enacting a police regulation, interfere with this liberty. People v. Gillson, 109 N. Y. 389, 17 N. E. 343,4 Am. St. Rep. 465. But the prohibition and regulation of gambling in all forms and lotteries of every kind are unquestionably valid exercises of legislative power, and, if the scheme established by the advertiser was, in effect, a lottery, the fact that the dominant purpose was merely to increase the advertiser's business does not save it from condemnation. A lottery is defined by the Penal Code (section 323) as ‘a scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise or by some other name.’ By section 327 advertising a lottery is made a misdemeanor. That the scheme provides for the distribution of property is apparent on its face. That the persons among whom the distribution is to be made pay a valuable consideration for the chance when they purchase the cigars the bands on which entitle them to compete for the prizes is settled by authority. Hull v. Ruggles, 56 N. Y. 424. Therefore the only question presented by the case is whether the distribution is made by chance or not.
It is not necessary to enter into a very elaborate discussion of what constitutes chance. Nearly all people at this day believe (however inconsistent their conduct at times may be...
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