State ex rel. Line v. Grant, 33895

• Decision Date: 16 March 1956
• Docket Number: No. 33895,33895
• Citation: 162 Neb. 210,75 N.W.2d 611
• Parties: The STATE of Nebraska ex rel. William G. LINE, County Attorney in and for Dodge County, Nebraska, Appellee, v. Kenneth GRANT and Elno Grant, d/b/a Grant Chevrolet Company, etc., Appellants.
• Court: Nebraska Supreme Court

Page 611

75 N.W.2d 611

162 Neb. 210

The STATE of Nebraska ex rel. William G. LINE, County Attorney in and for Dodge County, Nebraska, Appellee, v. Kenneth GRANT and Elno Grant, d/b/a Grant Chevrolet Company, etc., Appellants.

No. 33895.

Supreme Court of Nebraska.

March 16, 1956.

Syllabus by the Court

Where a promoter of a business enterprise, with the evident design of advertising his business and thereby increasing his profits, distributes prizes to some of those who call upon him or his agent, or write to him or his agent, or put themselves to trouble or inconvenience, even of slight degree, or perform some service at the request of and for the promoter, the parties receiving the prize to be determined by lot or chance, a sufficient consideration exists to constitute the enterprise a lottery though the promoter does not require the payment of anything to him directly by those who hold chances to draw prizes.

Richards, Yost & Schafersman, Sidner, Lee, Gunderson & Svoboda, Fremont, for appellants.

William G. Line, Fremont, C. S. Beck, Atty. Gen., Clarence A. H. Meyer, Deputy Atty. Gen., for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

This action was brought by the State of Nebraska ex rel. William G. Line, county attorney, as plaintiff, seeking to permanently enjoin defendants Kenneth Grant and Elno Grant, doing business as Grant Chevrolet Company, and their employees, from conducting an alleged lottery upon described premises in Fremont. The trial court forthwith issued a temporary injunction and defendants thereafter answered, denying generally and alleging that their scheme was not a lottery, since the element of consideration was not involved.

After hearing on the merits the trial court rendered judgment which found and adjudged that defendants were conducting a lottery and permanently enjoined the scheme. Defendants' motion for new trial was overruled and they appealed, assigning in effect that the judgment was not sustained by the evidence but was contrary thereto and contrary to law. We conclude that the assignments should not be sustained.

Citing State ex rel. Hunter v. Fox Beatrice Theatre Corp., 133 Neb. 392, 275 N.W. 605, and State ex rel. Hunter v. Omaha Motion Picture Exhibitors Ass'n, 139 Neb. 312, 297 N.W. 547, defendants conceded that in order for a scheme to be a lottery, it must contain the three elements of prize, chance, and consideration. They also conceded that their scheme contained the elements of prize and chance, but argued that it did not contain the element of consideration. The sole question then is whether or not, in the light of facts and applicable law, defendants' scheme contained the element of consideration in order to make it a lottery. Upon trial de novo we conclude that it did.

The undisputed evidence was substantially as follows: Defendants Kenneth Grant and Elno Grant were a partnership doing business as Grant Chevrolet Company on described premises in Fremont. They were new car dealers for Chevrolet and Cadillac Divisions of General Motors Corporation. They bought and sold new and used automobiles, trucks, and accessories, and operated a general service garage in connection with such business.

On Tuesday, February 15, and Wednesday, February 16, 1955, defendants placed advertisements in the Fremont Guide and Tribune, a legal newspaper in general circulation in Dodge County. Insofar as important here, the advertisements read: 'It's Here--Fascinating Chevrolet Exhibits--1955 Chevrolet Featurama--Win a Kiddie Convertible--Free Fun For All.

'Fascinating Exhibits and Fun for the Entire Family. We're inviting everybody in town to come in and see our own personal 1955 auto show, the Chevrolet Featurama. We have gleaming, life-size exhibits of Chevrolet engineering features at work. We have exhibits you can actually operate yourself * * * and have fund operating. Also, we would like to invite you to take this opportunity to drive the 1955 Motoramic Chevrolet and experience its great new features on the road. So, come in soon * * * to the thrilling Chevrolet Featurama for 1955.

'Bring the children. They'll love a ride in the Chevrolet Kiddie Convertible. Here's a special feature to thrill the youngsters! The Chevrolet Kiddie Convertible is a miniature sidewalk-sized version of the 1955 Chevrolet. The car is mounted on a special base that gives an exciting ride effect. It's great fun for the children--they'll love a ride in the Chevrolet Kiddie Convertible.

'Free Drawing! Your child can win a Kiddie Convertible. Some lucky boys and girls are actually going to win Kiddie Convertibles. We're having two grand drawings, one on Thursday, Feb. 17 and another on Saturday, Feb. 19. Get in soon and enter your child's name!

'Come see the 1955 Chevrolet Featurama. Feb. 16, 17, 18 & 19-8:00 A. M. to 9:00 P. M. Daily. Grant Chevrolet Co.'

Unless restrained, defendants intended to conduct the chance drawing of names registered at their place of business on typical registration cards. In that connection, it was necessary for persons registering to fill out a registration card giving their child's name, age, address, telephone number, and the year, make, and model of cars they were driving. The parents were supposed to complete and sign the registration card, but many children filled out such cards all by themselves.

A registration desk was located in about the center of defendants' new car showroom where there were several new Chevrolet cars and trucks, Chevrolet engineering exhibits, and promotional literature. Other products and services, including a Kiddie Convertible ride, and defendants' offices, were located in the immediate vicinity.

Registrants were not required to advance any money or make any purchases in order to register or to be present at the drawing in order to win. It was necessary for persons to enter defendants' new car salesroom and pass by the new Chevrolet automobiles, trucks, and Chevrolet engineering exhibits, in order to register, and the completed registration cards were deposited in a box at the registration desk. Winners were determined by chance drawings made from such registration cards, and prizes for the winners were to be as described in exhibits attached thereto. There were two prizes. Each was a child's Chevrolet Kiddie Convertible worth $60, to be awarded to children under 12 years of age. The purpose of conducting the scheme was to advertise defendants' business, induce people to come into their place of business, look at defendants' exhibits, and buy merchandise, and to generally stimulate defendants' business as a new car dealer.

In 34 Am.Jur., Lotteries, s. 2, p. 647, it is said: 'Where the term 'lottery' is not defined by a statute directed against it, it has been stated that a definition which includes as an element the evil which the statute was intended to prevent must be adopted.'

On the other hand, as this court said in State ex rel. Hunter v. Omaha Motion Picture Exhibitors, Ass'n, supra [139 Neb. 312, 297 N.W. 549]: "No sooner is it defined by a court than ingenuity evolves some scheme within the mischief discussed, but not quite within the letter of the definition given."

In Lucky Calendar Co. v. Cohen, 19 N.J. 399, 117 A.2d 487, 492, a recent exhaustive opinion citing many authorities and involving facts comparable in all material respects with those here involved, the court said: 'In deciding whether the facts in the case at bar constitute a lottery, we must resort to the accepted method of determining the meaning of a statute: we must look first to the mischief to be remedied and then to the means taken by the Legislature to achieve that end. * * * Where the Legislature has gone to such lengths as it has here to achieve a desired objective, we are bound in the process of statutory construction to give due weight to every word employed by it in an effort to give effect to the legislative intent.'

It is in such manner that we are required to construe and apply our own clear all-inclusive Constitution and related lottery statutes in the light of authorities which involved comparable statutes, facts, and circumstances.

In that connection, Article III, section 24, Constitution of Nebraska, provides in part: 'The Legislature shall not authorize any game of chance, lottery or gift enterprise * * *.' An apparent exception follows, but it requires no discussion here except to say that such exception did not declare a new policy in this state with reference to lotteries or games of chance. State ex rel. Hunter v. The Araho, 137 Neb. 389, 289 N.W. 545.

Section 28-961, R.R.S.1943, provides in part: 'Whoever opens, sets on foot, carries on, promotes, makes or draws, publicly or privately, any lottery or scheme of chance, of any kind or description, by whatever name, style or title the same may be denominated or known; or by such ways and means exposes or sets to sale any house or houses, lands or real estate, or any goods or chattels, cash or written evidences of debt or certificates of claims, or any thing or things of value whatever,' shall be punished as provided therein.

Also, section 28-962, R.R.S.1943, provides in part: 'Whoever vends, sells, barters or disposes of any lottery ticket or tickets, order or orders, device or devices of any kind, for or representing any number of shares, or any interest in any lottery, or scheme of chance, or opens or establishes as owner or otherwise any lottery or scheme of chance in this state, or is in any way concerned in any lottery or scheme of chance, by acting as owner or agent in this state for or on behalf of any lottery or scheme of chance to be drawn, paid or carried on, either out of...