State ex rel. Frizzell v. Highwood Service, Inc., 45858

• Decision Date: 17 July 1970
• Docket Number: No. 45858,45858
• Citation: 473 P.2d 97,205 Kan. 821
• Parties: The STATE of Kansas ex rel. Kent FRIZZELL, Attorney General, Appellant, v. HIGHWOOD SERVICE, INC., Appellee.
• Court: Kansas Supreme Court

Page 97

473 P.2d 97

205 Kan. 821

The STATE of Kansas ex rel. Kent FRIZZELL, Attorney General, Appellant, v. HIGHWOOD SERVICE, INC., Appellee.

No. 45858.

Supreme Court of Kansas.

July 17, 1970.

Syllabus by the Court

1. The three essential elements of a lottery are (1) consideration, (2) prize and (3) chance.

2. The ingredient of consideration required to be present in a lottery is a valuable consideration coming directly or indirectly from the participants.

3. A prohibitive or restrictive constitutional provision is self-executing and may be enforced independently of supplemental legislative action, unless it appears from its language that legislative enactment is contemplated as a requisite to give it effect.

4. A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to men of common understanding.

5. In ascertaining the meaning of a constitutional provision, courts should give consideration to what appears to have been the intendment and understanding of the people at the time of its adoption.

6. The record is examined in an action to enjoin a so-called television 'giveaway' program as being in violation of K.S.A. 21-1501 and article 15, § 3 of the Kansas Constitution, and for reasons appearing in the opinion it is held that the program does not offend against either the statute or the constitutional provision.

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., and Lance W. Burr, Asst. Atty. Gen., were with him on the brief for appellant.

James D. Waugh, Topeka, argued the cause, and David A. Sorenson, Topeka, was with him on the brief for appellee.

FONTRON, Justice:

Highwood Service, Inc., hereafter referred to as defendant or Highwood, is a Michigan corporation which owns and operates television station KTSB, which is located in Topeka and broadcasts on channel 27 (UHF). By a letter dated April 24, 1969, Highwood advised the Attorney General of Kansas that it intended to and would, in the immediate future, initiate a program with the title 'Dialing for Dollars.'

Closely following receipt of this letter, the attorney general, acting on behalf of the state of Kansas, commenced this action alleging that the program as outlined by Highwood constituted a lottery, and seeking to enjoin Highwood from broadcasting or exhibiting the same. After a hearing the trial court found, in effect, that the scheme or operation poposed by Highwood was not a lottery within the meaning of K.S.A. 21-1501. Accordingly, judgment was entered for the defendant. The state has appealed.

Briefly stated, the plan proposed operates in this fashion: The white pages of telephone directories from this general area are cut into segments of twenty names each and then placed in a rotaing cage. One of those slips is drawn at random when the program goes on the air. From the names on the slip so drawn, one name is selected and a phone call is placed to that person. The person called is asked what the code number is (which will be either 'up' or 'down' and a number from 1 to 10) and what amount is in the 'jackpot.' If he has been watching the program he should know the answers, but even though he knows them not he may hazard a guess and should his responses be correct he still will have 'hit the jackpot.' Should he be so unfortunate as to venture wrong answers, the answerer nonetheless is rewarded with a consolation prize of $1.00. If the person called is not reached for any reason, a prize of $1,00 is sent to him.

This scheme, which Highwood admits is aimed at increasing the viewing audience to the enhancement of its advertising revenues, is viewed askance by the state as being a lottery in violation both of article 15, § 3 of the Kansas Constitution and of K.S.A. 21-1501. Highwood indignantly denies such an accusation, and thus the issue is joined.

Article 15, § 3 of the state constitution reads as follows:

'Lotteries and the sale of lottery tickets are forever prohibited.'

So far as material herein, K.S.A. 21-1501 prohibits the making, establishment or promotion of any lottery, gift enterprise, policy or scheme in the nature of a lottery. A companion statute, K.S.A. 21-1506, defines lottery in this language.

'The term 'lottery,' as used in this act, includes schemes for the distribution of money or property among persons who have given or agreed to give a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name.'

This court has held that the essential elements of a lottery are three: (1) Consideration, (2) prize, and (3) chance. (State ex rel. Moore v. Bissing, 178 Kan. 111, 283 P.2d 418.) The defendant concedes, in the case now before us, that two of these elements, i.e., prize and chance, are present in its Dialing for Dollars progran, but it asserts that the element of consideration is lacking. Hence the field of disagreement between the state and the defendant is narrowed to the single issue of consideration.

With respect to this point, the trial court, in a well prepared memorandum opinion, sagely observed:

'The question then to the Court is whether any financial gain that would or could be derived by the defendant by having a greater viewing autience is the 'valuable consideration,' or by inducing the participant to view a certain television station, consideration, as the third element in a lottery, has been fulfilled.

'No doubt some financial benefit would inure to the defendant by having a larger viewing audience but is this the consideration contemplated by the statute? This Court thinks not.

'Without going into a lengthy discourse on the history of lotterys, a gratuitous distribution of money by lot or chance is not within the purview of our lottery statute where no valuable consideration is derived or exacted from the participant receiving a chance to win a prize.'

We believe the trial court spoke well and truthfully. K.S.A. 21-1501 does not, itself, define the character or the quantum of the consideration needed to constitute a lottery. Neither does its companion statute, K.S.A. 21-1506, set forth what consideration is required to create a lottery other than that it must be a 'valuable' consideration, flowing from the participants.

What does, and what does not, provide the consideration necessary to the operation of a lottery had been the subject of much judicial verbiage to which, at this time, we shall not add materially. It is sufficient here to observe that, in our opinion, the bounds of reason would be exceeded were we to say that the requirement of consideration has been fully met whenever a TV fan turns the dial of his machine to Dialing for Dollars and then relaxes in his easy chair awaiting the call which he hopes will bring him fortune.

Our view in this regard finds respectable support in F. C. C. v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699. This case involved the interpretation of § 1304 of the United States Criminal Code prohibiting the broadcasting of 'any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance. * * *'

The program under challenge bore the title 'Stop the Music', a give-away program similar to Dialing for Dollars, except that home contestants were asked to identify the musical selection which had just been played. If a correct answer was received, a prize was awarded the fortunate participant; if not, a consolation prize of lesser worth would be his sole reward. In holding that this scheme did not offend the federal statute, the United States Supreme Court said:

'* * * The courts have defined consideration in various ways, but so far as we are aware none has ever held that a contestant's listening at home to a radio or television program satisfies the consideration requirement. * * *

'We believe that it would be stretching the statute to the breaking point to give it an interpretation that would make such programs a crime. * * *' (pp. 293, 294, 74 S.Ct. p. 599.)

We are aware, not only of the foreign qauthorities cited by the state in which give-away programs have been held to violate lottery laws, but also of our own decision in State ex rel. Beck v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P.2d 929, where a 'bank night' plan was held to constitute a lottery in violation of 21-1501. In each of the several cases, however, the...