In Rе Interrogatories of the Governor Regarding the Sweepstakes Races Act
No. 28193
Supreme Court of Colorado
October 10, 1978
Rehearing denied November 6, 1978.
585 P.2d 595
Leland M. Coulter, William R. Sprague, for Colorado Parks and Recreation Society.
Susan K. Griffiths, for Colorado Municipal League.
En Banc.
MR. JUSTICE ERICKSON delivered the opinion of the Court.
Pursuant to
In 1975, the General Assembly of the State of colorado enacted House Bill 1080, which authorized the Racing Commission to conduct sweepstakes races.
The following interrogatories were submitted to us by the Governor:
“1. Does
“2. Does Game A, or Game B, or Game C, as set forth below, constitute a lottery in violation of
“GAME A: Sweepstаkes players purchase tickets within the enclosure of a racetrack where there is held a race meet licensed by the Colorado Racing Commission or in other locations outside said racetracks as are specified by the Department of Regulatory Agencies. Each ticket is so designed that the player may make his own choice of the animal which the player believes will win, place, or show in a particular horse or dog race. The winning players are determined by the outcome of the race and the accuracy of each player‘s selection as tо the outcome of the race. The winning players share in a pool of money collected from the sale of tickets and are entitled to participate at a later time in a drawing for an additional prize from the pooled money.
“GAME B: Sweepstakes players purchase tickets within the enclosure of a racetrack where there is held a race meet licensed by the Colorado Racing Commission or in other locations outside said racetracks as are specified by the Department of Regulatory Agencies. Each ticket is so designed that the player makes his own choice of the three post positions (not the animals) which the player believes will win, place, and show in a particular weekly horse or dog race. The winning players are determined by the outсome of the race and the accuracy of each player‘s section as to the outcome of the race. The winning players of the weekly races are then entitled to participate at a later time in a special sweepstakes race for prizes from the accumulated pooled money. Each winner from a weekly race may purchase a ticket within thе enclosure of a racetrack where there is held a race meet licensed by the Colorado Racing Commission. Each ticket is so designed that the player may make his own choice of the animal which the player believes will win, place, or show in a particular horse or dog race. There will be available information on the nature of the race itself and on the past performance of the dogs or horses entered in the race, along with appropriate information on the breeding and physical characteristics of the racing animals. The winning players share in the рool of money collected from the sale of tickets for the weekly races.
“GAME C: Sweepstakes players purchase tickets within the enclosure of a racetrack where there is held a race meet licensed by the Colorado Racing Commission or in other locations outside such racetracks as are specified by the Department of Regulatory Agencies. Each ticket contains a preprinted series of single digits. A mechanical device selects digits and assigns each digit to a post position (not an animal) in a horse or dog race. The finishing order of the horses or dogs in those post positions dictates the order of the digits, and that order would be the winning number in the sweepstakes. Each ticket holder would compare the reprinted number of his ticket with the winning number in the sweepstakes and would win a prize if the ticket number matched, in whole and perhaps in part, the winning number in the sweepstakes.”
We answer both interrogatories in the affirmative and declare that the sweepstakes legislаtion is unconstitutional.
We address the issues raised by Interrogatory Number 2 before analyzing the constitutional issues contained in Interrogatory Number 1.
Interrogatory Number 2
The descriptions of Games A, B, and C have caused us to concludе that all three of the games fall within the definition of a lottery. It was conceded during oral argument that Game C was a lottery. We agree. For that reason, we need not review Game C.
Game B is governed by an intitial screening device which controls the opportunity to participate in a “special sweepstakes race.” That screening device selects the participants in the sweepstakes race by pure chance. Each player selects several numbers representing different post positions from within a prescribed range of numbers and pays for the privilege of making his selеction. It is apparent that no skill is exercised by the player when he predicts the order in which animals starting from various post positions will finish. If the animals which bear those numbers finish in an order similar to that predicted by the player, he is then eligible to participate in a special sweepstakes race.
Our cases have established that a lottery is present when consideration is paid for the opportunity to win a prize awarded by chance. Cross v. People, 18 Colo. 321, 324, 32 P. 821 (1893).
Game A begins with a race in which players predict which animals will win, place, or show in a particular race. Winning players are entitled to participate in a later drawing for a money prize. The sеcond phase of Game A is encompassed by the constitutional prohibition. No skill is
Interrogatory Number 1
Since all three games authorized by the referendum are lotteries within the meaning of
Colorado history reflects that
The people, in the exercise of their referendum powers, arе bound by the same rules in this respect as the General Assembly. State ex rel. Steen v. Murray, supra; State ex rel. Woodahl v. District Court, 162 Mont. 283, 511 P.2d 318 (1973); I Sutherland Statutory Construction § 4.09 (4th Ed. 1973). As such, the power of referendum is limited by
People v. Prevost, 55 Colo. 199, 134 P. 129 (1913), must be distinguished from the issues which are before us in this case. In People v. Prevost, we interpreted
“[T]he general assembly shall have nо power to propose amendments to more than six articles of the constitution at the same session.”
The General Assembly that year had proposed six constitutional amendments. The plaintiff in People v. Prevost, supra, argued that an amendment initiated pursuant to
“[T]hе people reserve to themselves the power to propose . . . amendments to the constitution and to enact or reject the same at the polls independent of the general assembly.” (Emphasis added.)
Thus, it was clear in People v. Prevost, supra, that when
Accordingly, since Games A, B, and C are lotteries, the sweepstakes legislation which was approved by referendum is void and of no effect.
MR. JUSTICE PRINGLE and MR. JUSTICE CARRIGAN dissenting in part and concurring in part.
MR. JUSTICE KELLEY concurring in the result.
MR. JUSTICE PRINGLE concurring in part and dissenting in part:
I respectfully dissent only from that portion of the majority opinion which holds Game A to be a lottery. In all other resрects, I heartily concur with the majority opinion.
MR. JUSTICE CARRIGAN joins me in dissenting to that portion of the majority opinion holding that Game A is a lottery. He concurs in all other aspects of the opinion.