I concur in the dissenting opinion of MR. JUSTICE ERICKSON and desire to add the following:
The majority opinion correctly points out that the only noteworthy difference between this case and the Dussault Case,110 Mont. 441, 101 P.2d 1065, is that here it was stipulated in effect that the money used to purchase the gift came from the rental of the store and office properties, and not from the sale of admission tickets. This is a distinction without a difference. If the rental goes to purchase the gift then the proceeds *Page 95 from the sale of admission tickets must be used to discharge obligations that otherwise would be paid from the rental proceeds. Since this case is no different in fact or substance from the Dussault Case, it should be ruled by that case and the judgment here reversed.
The ultimate purpose and aim of the plan here involved is exactly the same as that in the Dussault Case, viz., to enhance the receipts from the sale of theatre tickets by appealing to the gambling instincts of the general public. The increased attendance at the theatre is all that is necessary to supply the element of consideration. (Society Theatre v. City ofSeattle, 118 Wash. 258, 203 P. 21.) This the legislature fully realized and attempted in 1935 to make the law inapplicable to fairs and rodeos giving away cash and merchandise by public drawings. (Sec. 11149.1, Rev. Codes.) Whether that attempt was efficacious need not here be determined. The majority opinion makes the sweeping statement that the case of Society Theatre v. City of Seattle, just cited, turned upon a local ordinance completely eliminating the element of consideration. It is true that a city ordinance was involved prohibiting the sale or disposal of lottery tickets. The court was careful, however, to point out in its opinion that consideration was one of the elements necessary to prove a lottery, and in plain language held that there was a consideration because of the increase in attendance at the theatre because of the awarding of prizes. The fact that some have received the prize who were not in the theatre is of no importance. The lottery being established, the giving of some tickets without consideration is also prohibited. (Sec. 11151, Rev. Codes.) We are not advised by the agreed statement of facts whether some outside the theatre were denied the prize because of inability to arrive at the proper place within the proper time. Nor are we advised of the effect of such a situation. We can readily see that, the fact that when one draws the lucky number and is unable to report within the time because of remaining outside the theatre, will stimulate *Page 96 the sale of tickets on succeeding Bank Nights so as to avoid repetition of that situation.
This case is a typical illustration of the activities of those who would attempt to do that which is prohibited — first proceeding in one way and then in another in achieving the same ultimate purpose and aim: with the hope of ultimately seizing upon some method that would meet the approval of the courts. When once approval of the practice is obtained, all those who had speculated in some other plan to evade the intent and purpose of the law would readily conform to the approved method. It was devices such as this which caused the court, in Harvie v.Heise, 150 S.C. 277, 148 S.E. 66, to make the following comment, which we quoted with approval in State ex rel.Dussault v. Kilburn, 111 Mont. 400, 109 P.2d 1113, 1115, 135 A.L.R. 99: "In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficient objects and purposes of the laws designed to suppress the vice of gambling." I think rather than thus speculating on different modes to achieve the same end — an evasion of the laws — it would come with better grace for the theatres to seek legislative approval of some method to conduct a lottery after amendment of the Constitution was first had.
The most optimistic proponents of the scheme here involved will be amazed at the result of this case because now they may adopt either of two methods, if in fact there is any difference between them: either that here involved, or that used in theDussault Case, and in addition to that have now found that the constitutional barrier against lotteries is meaningless and that by the simple expedient of procuring repeal of sections 11149 to 11158, all forms of lottery will be permitted in this state.
I think section 2 of Article XIX of the Constitution is plainly self-executing so far as to prohibit lotteries and gift enterprises. In other words, if the legislature had not acted at all, I think section 2 of Article XIX plainly prohibits lotteries and gift enterprises. That section reads: "The legislative assembly *Page 97 shall have no power to authorize lotteries, or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this state." By a play upon words, the majority have held that what the Constitution means is this: "The legislature shall have no power to authorize lotteries, or gift enterprises by the enactment of any laws authorizing them but it may accomplish that end by inaction." I do not agree with that line of reasoning.
Of course, before there could be any criminal prosecution a penalty must be provided by the legislature. This the legislature has done and it has also defined a lottery. Since the legislature has acted, and since the scheme here under consideration is, in my opinion, a lottery under the statutory provisions, I think discussion of the point as to whether section 2 of Article XIX is self-executing is not involved in the case.