State v. Cox

• Decision Date: 04 February 1960
• Docket Number: No. 9949,9949
• Citation: 136 Mont. 507,349 P.2d 104
• Parties: STATE of Montana, Plaintiff and Appellant, v. John C. COX, The Crown Cigar Store, The First Floor of That Certain Building Known as 110 East Park Street, Butte, Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 104

349 P.2d 104

136 Mont. 507

STATE of Montana, Plaintiff and Appellant, v. John C. COX, The Crown Cigar Store, The First Floor of That Certain Building Known as 110 East Park Street Butte, Montana, Defendants and Respondents.

No. 9949.

Supreme Court of Montana.

Submitted Jan. 29, 1960.

Decided Feb. 4, 1960.

Forrest H. Anderson, Atty. Gen., Louis Forsell, Asst. Atty. Gen., for appellant, Louis Forsell, Asst. Atty. Gen., argued orally.

David L. Holland, E. J. Foley, Butte, for respondent, E. J. Foley, argued orally.

HARRISON, Chief Justice.

On April 24, 1958, the attorney general filed a complaint in the District Court of the Second Judicial District, Silver Bow County, seeking to enjoin defendant from operating an alleged lottery in his establishment, the Crown Cigar Store, in Butte.

A temporary restraining order and order to show cause issued. On May 7, 1958, the return day, defendant filed a motion to quash the temporary writ on the ground that the complaint and affidavits did not state facts sufficient to entitle plaintiff to relief. The district court sustained this motion, treating it as a general demurrer, and the plaintiff having elected to plead no further and to stand on his complaint, judgment was entered for defendant and plaintiff's complaint dismissed. From this judgment plaintiff appeals.

The defendant, John Cox, is the proprietor and operator of the Crown Cigar Store, located at 110 East Park Street in Butte, Montana, where he is engaged in the business of selling beer, liquor, tobacco, novelties, magazines and meals to the public.

The Crown Cigar Store needs no introduction, for on at least two occasions in the past, activities in the nature of gambling have been enjoined on the same premises. In State ex rel. Nagle v. Naughton, 103 Mont. 306, 63 P.2d 123, gambling at cards was enjoined at the Crown, and in State ex rel. Olsen v. Crown Cigar Store, 124 Mont. 310, 220 P.2d 1029, slot machines and what was termed as a 'Chinese lottery' were condemned.

It is this same 'Chinese lottery', with minor revisions, that is involved here.

Taking the allegations of the complaint as true, it appears that a customer at the Crown receives a cash register stub, known as a 'premium ticket', upon the purchase of a certain amount of merchandise, either drinks, food or sundries from the cigar or magazine counter. A patron who desires to participate in the 'Chinese lottery' obtains another ticket, provided in the store, with numbers from one to eighty printed thereon and marks his choice of ten numbers with a brush and ink also provided. This numbered ticket is deposited with an operator along with a 'premium ticket.' The operator will not accept a numbered ticket unless it is accompanied by a 'premium ticket'. In short, one must purchase merchandise before he is allowed to participate. The operator then returns a similarly marked card with a validating mark thereon to the player. Three times daily a 'drawing' is held, whereby ten numbers ranging from one to eighty are selected by lot. Players who have marked from six to ten of the chosen numbers receive cash prizes in varying amounts.

The district court dismissed the complaint on the ground that the game did not constitute a lottery within the definition of section 94-3001, Revised Codes of Montana, 1947, since no consideration was paid for the chance to participate. In support of its holding, the court cited State ex rel. Stafford v. Fox-Great Falls Theatre Corp., 114 Mont. 52, 132 P.2d 689.

Section 94-3001, R.C.M.1947, defines a lottery as follows:

'A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known.'

The three elements of a lottery are: The offering of a prize; the awarding of the prize by chance; and the giving of consideration for an opportunity to win the prize. State v. Hann, 105 Mont. 270, 273, 72 P.2d 459.

There is no question that the elements of prize and chance are present in the scheme involved here. As is true in most cases involving an alleged lottery, the sole question is whether the element of consideration is present. More specifically, the question is: Where an opportunity to win an award, which is distributed by chance, is presented to an individual who purchases merchandise, the purchase price of which is equivalent to its value, has that individual paid a consideration for the chance to participate in the scheme, so as to constitute it a lottery?

Defendant insists that the scheme, involved here, contemplates no consideration, and the district court interpreted State ex rel. Stafford v. Fox-Great Falls Theatre Corp., supra, as holding that such a scheme was not a lottery.

In State ex rel. Dussault v. Fox Missoula Theatre Corp., 110 Mont. 441, 101 P.2d 1065, this court held that where a theatre uses part of the price of admission to purchase a prize which is awarded by chance at a 'Bank Night', there is a pro tanto reduction in the price of admission, and the amount expended for the prize constitutes consideration. In State ex rel. Stafford v. Fox-Great Falls Theatre Corp., supra, this court expressly overruled the Dussault case, and stated that the test is not whether the prizes have been purchased out of funds paid by the participants, but whether the participants have paid a valuable consideration for the chance to participate.

Defendant apparently relies on language found in the Stafford case as authority for the proposition that where value is received along with...