State v. Powell
| Decision Date | 11 February 1927 |
| Docket Number | No. 25779.,25779. |
| Parties | STATE v. POWELL et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Lyon County; Albert H. Enersen, Judge.
Action by the State against L. H. Powell and others for an injunction and to abate a lottery as a nuisance. Findings for plaintiff; injunction and destruction of lottery tickets ordered. From an order denying their motion for a new trial, defendants appeal. Modified and remanded.
Hall & Gislason, of Marshall, for appellants.
C. L. Hilton, Atty. Gen., and A. R. English, Co. Atty., of Tracy, for the State.
Action to enjoin the defendants from maintaining a lottery and to abate it as a nuisance. There were findings for the plaintiff, an injunction was ordered, and the sheriff was directed to seize and destroy tickets prepared for use in the drawing of prizes. The defendants appeal from the order denying their motion for a new trial.
and the individuals named as defendants are its officers. Its purpose is to promote the interests of the city. Its activities are financed by dues and assessments paid by its members. It maintains a public rest room, a summer Chautauqua, a municipal band, and contributes to other enterprises of civic value. Its prize drawing plan, against which this action is directed, is briefly this:
The association furnishes the merchants duplicate tickets consecutively numbered. For each dollar's worth of merchandise purchased the merchant gives the purchaser a ticket. At a stated time the duplicates retained by the merchants are put together in a receptacle, a chance drawing is made of a designated number, and the purchasers who have tickets bearing corresponding numbers receive cash or other prizes.
The statute defines a lottery as follows:
"A lottery is 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 it shall be called a lottery, raffle, gift enterprise, or by any other name, and is hereby declared unlawful and a public nuisance." G. S. 1923, § 10209.
It is essential to a lottery that there be a prize, a chance to get it, and a consideration given for the chance. The plan of the association comes within the definition of a lottery. There are prizes. There is a "distribution of property by chance." There is a consideration. The purchaser pays a consideration when he buys his merchandise. When he pays his dollar he gets in return the merchandise and a chance to get a prize. The association is the agency or instrumentality through which prizes are offered and paid.
Our cases do not furnish one entirely similar in its facts, but the principle is definitely enough held. State v. Moren, 48 Minn. 555, 51 N. W. 618; State v. U. S. Exp. Co., 95 Minn. 442, 104 N. W. 556; State v. Wolford, 151 Minn. 59, 185 N. W. 1017. Cases from other jurisdictions are in accord in principle and in some the facts resemble those in the case at bar. State v. Danz (Wash.) 250 P. 37; Standridge v. Williford-Burns-Rice Co., 148 Ga. 283, 96 S. E. 498; Davenport v. City of Ottawa, 54 Kan. 711, 39 P. 708, 45 Am. St. Rep. 303; State v. Kansas Mercantile Ass'n, 45 Kan. 351, 25 P. 984, 11 L. R. A. 430, 23 Am. St. Rep. 727; State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532; Utz v. Wolf, 72 Ind. App. 572, 126 N. E. 327; Lohman v. State, 81 Ind. 15; Society Theater v. Seattle, 118 Wash. 258, 203 P. 21; Ballock v. State, 73 Md. 1, 20 A. 184, 8 L. R. A. 671, 25 Am. St. Rep. 559; United States v. Zeisler (C. C.) 30 F. 499; Horner v. United States, 147 U. S. 449, 13 S. Ct. 409, 37 L. Ed. 237.
By G. S. 1923, § 10538 (3), provision is made for a search and seizure of gambling apparatus or implements, and by section 10540 provision is made for the destruction, under the direction of the court, of property seized. See 27 C. J. 1044-1046, §§ 258, 259; 38 C. J. 318, 319, §§ 77-79; 12 R. C. L. p. 733, § 34; Dec. Dig. §§...
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