State ex Inf. McKittrick v. Globe-Democrat Pub. Co.

• Decision Date: 09 December 1937
• Parties: State of Missouri upon the information of Roy McKittrick, Attorney General, Relator, v. Globe-Democrat Publishing Company, a Corporation
• Court: Missouri Supreme Court

110 S.W.2d 705

341 Mo. 862

State of Missouri upon the information of Roy McKittrick, Attorney General, Relator, v. Globe-Democrat Publishing Company, a Corporation

Supreme Court of Missouri

December 9, 1937

Respondent to pay fine of one dollar and the costs.

Roy McKittrick, Attorney General, Franklin E Reagan and John W. Hoffman, Jr., Assistant Attorneys General, for relator.

Igoe Carroll, Higgs & Keefe, Bryan, Williams, Cave & McPheeters and Jones, Hocker, Gladney & Grand for respondent.

OPINION

Ellison J.

Quo warranto instituted in this court by the Attorney General to forfeit the charter of the respondent Globe-Democrat Publishing Company, a corporation, on the ground that at and prior to the filing of the information it was operating a lottery. The respondent publishes the St. Louis Globe-Democrat, a daily and Sunday newspaper. The alleged lottery, conducted by and advertised in that newspaper, was called the "Famous Names" contest. The respondent filed a return admitting it had conducted the contest but denying that the same was a lottery. To that return the relator filed a reply which was a general denial. The Honorable Fielding P. Stapleton of the Gentry County bar was appointed by this court as Special Commissioner to receive the testimony and evidence and to report his findings of fact and conclusions of law. His report has been of great assistance to the court and we adopt substantially his statement of the facts -- without quotation marks -- adding, however, some further detailed facts because of the contentions made by the parties in their briefs filed after the report was presented.

Early in 1936 the respondent contracted with the Publishers' Service Company of New York to publish in the Globe-Democrat the aforesaid "Famous Names" contest, which was copyrighted by the New York Post, one of several publications owned by Stearns Newspapers, the latter also controlling the Publishers' Service Company. Under the contract the Publishers' Service Company was to furnish and the Globe-Democrat was to publish a series of eighty-four cartoons, one each day for eighty-four consecutive days. The cartoons were prepared by Peter Arno, a widely known cartoonist, and consisted of drawings of persons, inanimate and living objects, together with various statements or exclamations made by the characters portrayed; and under each cartoon was printed a list of words or names, one of which was to be chosen by the contestants as the best and most appropriate name for the cartoon. The prizes were to be awarded by a committee of five distinguished citizens of St. Louis. In the beginning the cartoons were comparatively simple and only a few names were appended thereto. As the contest proceeded they became more difficult and more names were printed under each. Toward the last as many as 180 names were suggested for some of the cartoons.

The rules of the contest having a bearing on the issues in this case were as follows:

"1. 'Famous Names' contest is open to every reader of The St. Louis Globe-Democrat with the exception of employees of The St. Louis Globe-Democrat and members of their families.

"2. Beginning Monday, February 3d, and continuing each day for twelve weeks, The St. Louis Globe-Democrat will publish a Peter Arno cartoon. Each cartoon will in some way suggest or represent a name. The name may be that of a person, city, state, nation, book, song or motion picture.

"3. The St. Louis Globe-Democrat will award a First Prize of $ 10,000.00 as part of $ 15,000.00 in prizes to the person or persons submitting the best or most appropriate name to each of the 84 cartoons and in all other ways conforming to these Official Rules. The person or persons submitting the best or most appropriate names to all 84 cartoons and otherwise complying with these Official Rules shall be eligible for First Prize. The person or persons submitting the next nearest correct solution to the 84 cartoons and otherwise complying with all these Official Rules shall be eligible for additional prizes in the order of the correctness of their answers.

"7. In order to qualify for a prize, the contestant is required to accompany each of the 12 series of answers with a remittance of 10 cents in coin in payment for a special print of the week's featured Peter Arno cartoon, purchase of which is a condition for entering the contest. The Special Prints, suitable for framing, will be mailed to the contestant in one set, at the close of the contest.

"8. Any person upon entering the contest and by the submission of answers, agrees to accept as final the decision of The Globe-Democrat and the contest manager on all matters affecting the conduct of the contest, the making of the awards, and procedure and policy, with regard to the acceptance of submissions during the entire contest.

"10. A contestant is permitted to submit as many sets of 84 cartoons as he or she chooses, provided same are properly qualified, and each will be judged as a unit, but no person will be awarded more than one prize. When submitting additional sets of answers, all series must be identified as sets A, B, C, etc."

Before the contest started the respondent submitted to the Post Office Department the plan thereof together with the rules governing, and the same was approved as not being in violation of the postal laws. However, the cartoons with appended lists of names were not so submitted. Many of them had not yet been drawn and furnished to the respondent.

The publication of the cartoons in the St. Louis Globe-Democrat began on February 3, 1936, and was continued for eighty-four consecutive days, ending on April 26, 1936. At the outset the publication of the cartoons was accompanied by extravagant advertising, practically all of which was furnished by the Publishers' Service Company. For instance in the issue of February 8 it was stated, "in a half hour, perhaps less, you can give yourself the opportunity to win $ 10,000 cash." On February 9 an advertisement said "your quick way to fortune." And below that in smaller type, "time and again you read of the huge fortunes won by various contestants! Today the Globe-Democrat gives you this grand opportunity to win $ 10,000 cash." On the same page it was stated "every one in your family, man, woman or child is eligible to enter and win. A child of eight years might win." In several subsequent advertisements, one as late as March 18, it was stated that any man, woman or child can win $ 10,000 cash. An advertisement on February 16 prominently proclaimed: "You deserve some easy money, $ 10,000 first prize," and further stated, "Anyone can win, man, woman or child. A child of 12 might easily be awarded the first prize itself -- a $ 10,000 cash fortune. It requires no special skill, training or education." In addition to the advertisements in the Globe-Democrat some 400,000 "broadsides" or printed folders were distributed from house to house throughout the St. Louis Metropolitan area, and advertisements were run in 446 small town newspapers in the territory tributary to the city.

On February 27 representatives of the Better Business Bureau in St. Louis had a conference with officers of the respondent corporation in which the latter stated that the contest would become more difficult as it went on, the cartoons to be susceptible of several possible constructions. At that time only about thirty-six of the eighty-four cartoons had been forwarded to the respondent by the Publishers' Service Company -- in other words the respondent had not then seen the last forty-eight cartoons and did not know what they would contain. During the conference mention was made of the fact that the advertising was misleading and calculated to draw persons into the contest in the belief that it would be easy. At a second conference, about March 24, the same question was discussed. Mr. Hocker, attorney for the respondent, conceded the advertising was objectionable, and the respondent agreed to discontinue advertisement stating children might win in the contest. This was done. These conferences were held because the Better Business Bureau had received inquiries from the public and complaints from two competing St. Louis newspapers, the St. Louis Star-Times and the St. Louis Post Dispatch.

In the middle or latter part of February, after the contest had been running two or three weeks, the respondent was advised by the Attorney General that the St. Louis Star-Times had filed a complaint thereagainst. At a conference shortly following the Attorney General stated he objected to two things: (1) the fact the cartoons would be equally susceptible of various answers made it a lottery; (2) the determination of the contest by five local judges made it a guessing contest as to what the opinion of the five judges would be. Furthermore, he contended the judgment of the five judges would be more summary and the result of less study and reflection than the contestants themselves would bring to bear on the contest. It was suggested by the Attorney General that to obviate this second objection the contest might be judged by the puzzle experts who prepared the cartoons, thereby eliminating guesswork by the contestants as to what a jury of five local nonexperts might think. Mr. Hocker agreed to have this change made. And to meet the first objection, he wrote the Attorney General on March 6 agreeing for the respondent, as follows:

"Every cartoon will be designed and created by puzzle experts to most appropriately suggest some one of the names printed below it, and that name will be selected by these experts as the correct solution of the puzzle. While there may be clews and leads that will suggest some one or more of the other names, a careful analysis of the cartoon will be...