Quatsoe v. Eggleston
71 P. 66
Or.
1903
Check Treatment
Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The setting up, promoting, or conducting a lottery is not only a species of gaming, immoral and vicious per se, but is prohibited by the constitution, article XY, section 4, and made a crime by statute (B. & C. Comp. § 1959). The court was therefore not in error in dismissing the action sua sponte, if the agreement set ont in the complaint, and upon which it is based, is in fact a lottery contract. To this question we shall direct our attention. The term ‘ ‘ lottery ’ ’ has no technical legal meaning, but the courts adopt the generally accepted definition in popular use. Webster says that it is “a scheme for the distribution of prizes by lot or chance; esp., a gaming scheme in which one or more tickets bearing particular numbers draw prizes, and the rest of the tickets are blanks. ’ ’ By the Standard Dictionary it is defined as “a scheme for distributing prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize, especially where such chances are allotted by sale of tickets; ’ ’ and the Century, as ‘ ‘ a scheme for raising money by selling chances to shares in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets, the correspondingly numbered slips, or lots, representing prizes or blanks, being drawn * * . In law, the term lottery embraces all schemes for the distribution of prizes by chance, such as policy-playing, gift-exhibitions, prize-concerts, raffles at fairs, etc., and includes various forms of gambling.” Practically the same definition is given by the legal authorities. Thus, in 14 Am. & Eng. Enc. Law (2 ed.), 600, it is defined as ‘ ‘ a gambling contract in which one or more parties on *319the one side risk a small sum for the chance of obtaining a greater, the winner or winners to be determined by lot;” and in the nineteenth volume of the same work, at page 588, as “a scheme for the distribution of prizes by lot or chance; a game of hazard in which small sums of money are ventured for the •chance of obtaining a larger value, in money or other articles. ’ ’ Mr. Bishop says it is “any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine: Bishop, Stat. Cr. (2 ed.) § 952. Mr. Chief Justice Sherwood defines it as “a scheme by which a result is reached by some action or means taken, and in which result man’s choice or will has no part, nor can-human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished”: People v. Elliott, 74 Mich. 264, 267 (41 N. W. 916, 3 L. R. A. 403, 16 Am. St. Rep. 640). Definitions of similar import could be given indefinitely, as the books are full of them, but those quoted are sufficient for the present purpose, and show that any scheme for the distribution of property by lot or chance is a lottery, whatever form it may take, or however ingeniously its real object may be concealed. As illustrating how zealous the courts are to condemn any scheme that is in effect a lottery, and as showing what have been held to be such, reference may be made to 19 Am. & Eng. Enc. Law (2 ed.) 590; Meyer v. State, 112 Ga. 20 (37 S. E. 96, 51 L.R.A. 496, 81 Am. St. Rep. 17); Hudelson v. State, 94 Ind. 426 (48 Am. Rep. 171); Thomas v. People, 59 Ill. 160; State v. Shorts, 32 N. J. Law, 398 (90 Am. Dec. 668); Holoman v. State, 2 Tex. App. 610 (28 Am. Rep. 439); State v. Lumsden, 89 N. C. 572; United States v. Wallis (D. C.) 58 Fed. 942; Hull v. Ruggles, 56 N. Y. 424; United States v. Olney, 1 Deady, 461 (Fed. Cas. No. 15, 918); State v. Boneil, 42 La. Ann. 1110 (8 So. 298, 10 L. R. A. 60, 21 Am. St. Rep. 413); Dunn v. People, 40 Ill. 465; Horner v. United States, 147 U. S. 449 (13 Sup. Ct. 409); Wilkinson v. Gill, 74 N. Y. 63 (30 Am. Rep. 264); Commonwealth v. Wright, 137 Mass. 250 (50 Am. *320Rep. 306); United States v. Fulkerson (D. C.) 74 Fed. 619; State v. Moren, 18 Minn. 555 (51 N. W. 618).

In all these cases, as well as in the definitions to be found in the books, it will be observed that one essential ingredient of a lottery is the element of chance, by which some prize or other thing of value in excess of that paid for by the purchaser is distributed to the holder of a ticket or other designated person by some means, the result of which human foresight or sagacity cannot foretell. ‘ ‘ This ingredient of chance, ’ ’ says Mr. Chief Justice Beasley, in State v. Shorts, 32 N. J. Law, 398 (90 Am. Dec. 668), “is,, obviously, the evil principle against which all prohibitory laws are aimed. It is by this means that cupidity is solicited, for, if fortune be propitious, in consideration of the trivial price of a ticket, a return of value is to be expected.” There cannot, therefore, be a lottery without this element of uncertainty or chance. If the power of reason or will is exercised upon the selection, then there is no lottery. Now, when the contract under consideration is examined, the element of pure chance is found wanting. The awarding of the pianos, which are proposed to be given away as an advertisement, is not made by chance or lot, but by the affirmative, conscious act and will of the holders of tickets obtained wdth goods purchased at the defendant’s store. By the contract, the plaintiffs agreed to furnish the defendant 5,000 tickets, in assorted denominations, two display cards, and pay for advertising the piano contest, giving the result of the vote and the subscribers’ names for a certain specified time, in consideration of which the defendant agreed to pay to them a certain amount of money, to keep these placards on exhibition in his store, and to give to each and every one of his customers one ticket with each 25-cent cash purchase, which ticket entitled the holder to a vote in determining to whom the pianos should be awarded. By the arrangement, each purchaser of goods of a certain value obtained a ticket, which simply entitled him to the right to vote in the contest, but by no possibility could he obtain a piano merely as a holder of such ticket, or of any number of tickets, on account of .these purchases. The pianos *321were not to be given to the holders of tickets alone, but “to the society, church, school, lodge, or person having' secured the greatest number of votes at the close of each contest,” whether holding a ticket or not; so that the holder of a ticket, or of any number of tickets, as such, stood no more chance to obtain the gift than one who had not traded at defendant’s store and held no ticket at all. The pianos were not to be distributed among the ticket holders by schemes or lots, or to the persons holding the greatest number of tickets, but the award depended upon the result of the vote. There was, therefore, no awarding of the prizes by lot or chance, and no appeal to the cupidity of any one, nor inducement to make reckless purchases in the hope of securing some prize superior in value to the amount invested. The contract, therefore, does not come within any of the accepted definitions of a lottery, nor within the scope of the evil intended to be suppressed by the prohibition thereof. It follows from these views that the circuit court was in error, and that the judgment appealed from must be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.