dissenting.
I respectfully dissent.
Mo. Const, art. Ill, § 51 provides: “When conflicting measures are approved at the same election the one having the largest affirmative vote shall prevail.” See also § 116.320.3 RSMo Cum.Supp.1984. With great foresight, our Constitution predicted a scenario similar to the one now before the Court in which conflicting amendments to the constitution each achieved a majority vote at the same election. When such an event took place, the people intended that only the amendment receiving the greatest number of affirmative votes prevail, despite the fact that both received a popular majority. The rule is firm and controls unless it can be shown that no conflict between the two amendments exists.
In State ex inf. Ashcroft v. City of Fulton, 642 S.W.2d 617, 620 (Mo. banc 1982) this Court said: “The test for determining whether a conflict exists is whether one amendment prohibits what the other permits or vice versa.”
Both Constitutional Amendment No. 5 (the lottery) and Constitutional Amendment No. 7 (pari-mutuel wagering) repeal Mo. Const, art. Ill, § 39. Each amendment proposes identical new language for the former Section 39(9) as follows: “Except as otherwise provided in section 39(b) of this article....” Each amendment proposes an exception, designated 39(b), to the general constitutional prohibition against the General Assembly adopting legislation establishing lotteries or gift enterprises, Mo. Const, art. Ill, § 39(9). Each amendment permits only the exception to § 39(9) which it proposes. If the general prohibition from which the exceptions are carved otherwise prohibits what is permitted by the exceptions then a conflict exists between the two amendments. If such a conflict exists, then the pari-mutuel amendment must fail under § 51.
Clearly, the only real question in this case is whether the general prohibition of § 39(9) prohibits pari-mutuel wagering. The per curiam denies that pari-mutuel wagering falls within the proscription against *34lotteries and gift enterprises found in that constitutional provision. I disagree.
The elements of a lottery are prize, consideration and chance. State ex inf. McKittrick v. Globe-Democrat Publishing Co., 341 Mo. 862, 110 S.W.2d 705, 713 (banc 1937). Missouri rejects the pure chance doctrine and finds a lottery whenever prize, consideration and chance as a dominant factor are present in an undertaking. Thus, a lottery “includes every scheme or device whereby anything of value is for a consideration alloted by chance.” Id. (Emphasis added).1
McKittrick’s definition of lottery is consistent with the plain, ordinary and natural meaning of the word as commonly understood by the people. We are instructed, in Buechner v. Bond, 650 S.W.2d 611, 613 (Mo banc 1983), that such meaning is found in the dictionary. Webster’s Third New International Dictionary (1966) defines “lottery” as “a scheme for the distribution of prizes by lot or chance.” Id. at 1338. By contrast, the per curiam adopts a technical definition of “lottery” which is inconsistent with both McKittrick and the commonly understood meaning of the word.
Pari-mutuel wagering is “a form of wagering on the outcome of horse races in which those who wager purchase tickets of various denominations on a horse or horses in one or more race or races, all wagers are pooled, and when the outcome of the race or races is declared official, the total wagers comprising each pool [less required adjustments] ... will be distributed to holders of winning tickets on the winning horse or horses.” Constitutional Amendment No. 7, § 39(b)(l)(i). The elements of a lottery — prize, consideration and chance — are undeniably present in pari-mutuel wagering.
Regardless of whether horse racing, within itself, is a “game” or a “sport”, or if a game, whether it is one of “skill” or of “chance” — when a group of persons, each of whom has contributed to a common fund and received a ticket or certificate representing such contribution, adopt a horse race, the result of which is uncertain, as a means of determining, by chance, which members of the group have won and which have lost upon a redivision of that fund, each contributor having selected a stated horse to win such race, the redeemable value of certificates so obtained and held by the contributors to such a fund being varied or affected by the result of such race, so that the value of some is enhanced, while that of others is reduced or destroyed, the original purchase price of all having been the same, those who chose the winning horses being paid from the fund so accumulated more than they contributed thereto, by dividing amongst them the money contributed by those who chose losing horses and who therefore receive nothing, that process becomes a “game of chance.”
Coulter v. State, 122 Tex.Cr.R. 9, 53 S.W.2d 477, 480-1 (1932). See also State ex rel. Sorensen v. Ak-Sar-Ben Exposition Co., 118 Neb. 851, 226 N.W. 705, 708 (1929) (“The pari-mutuel system of betting and gambling on horse races ... contains every element of a criminal lottery — consideration, chance, price [sic], means of distribu-tion_[P]ari-mutuel betting ... is an unlawful lottery.”) That a conflict exists between the two amendments is beyond cavil.
The per curiam opinion of the Court attempts to dissolve the conflict in two ways: First, the per curiam places great reliance on the intent of the people. Such reliance is understandable, since inquiry into the people’s intent would ordinarily be controlling. However, the analysis employed by the per curiam ingores the impact of § 51. In my view, that section cannot be cast aside so lightly. By § 51, we are required to do more than find the intent of the people; we are required to determine, as a threshold matter if the constitutional amendments they approve pass the consti*35tutional test which the people intended to apply. Because a conflict exists between the two amendments, § 51 preempts our further inquiry into the state of mind of the electorate.
Second, the principal opinion argues that because both the lottery and pari-mutuel amendments designated their exception to § 39(9) as § 39(b), the lottery amendment permits pari-mutuel wagering. This is so, the per curiam argues, because “the lottery amendment excepts from its general prohibition activities contained in § 39(b).” (Principal op. at 8).
Such a conclusion serves only to underscore the conflict between the two amendments. The lottery amendment approves only its 39(b); it does not include all other constitutional provisions of the same numerical designation. The mere coincidence of numbering between the two proposed amendments can neither remove the conflict between the amendments nor abrogate the provisions of § 51. It is the text of the amendments which control, not the numbers by which they are designated.
That the text and not a numerical designation is the final arbiter of conflict is highlighted by the principal opinion’s treatment of the bingo issue raised by appellant. There the per curiam chooses to ignore (properly, I believe) the designating number assigned by the drafter of the pari-mu-tuel amendment and rely on the text. The result is to allow the former § 39(a), which permits bingo, to survive despite the existence of another § 39(a) in the pari-mutuel amendment. Such an analysis is contrary to the per curiam’s inclusion of the pari-mu-tuel § 39(b) within the lottery amendment because of its numerical designation. The per curiam cannot have it both ways.
The logic of the per curiam requires the conclusion that the time-honored constitutional prohibition against lotteries and gift enterprises does not extend to pari-mutuel wagering. However, placing a narrow, limited meaning on the word “lottery”, the per curiam does far more than permit the pari-mutuel amendment to stand. It places in the hands of the General Assembly the power to adopt legislation authorizing all forms of gambling which are not lotteries within the narrow meaning adopted by the per curiam.
The per curiam ranges far beyond the ground necessary to decide this case, without just cause for doing so. I cannot countenance such a broad-ranging precedent which is so contrary to our Constitution and to the intent of our people.
I, therefore, respectfully dissent.
. The 1978 amendments to the constitution changed the holding in McKittrick only insofar as consideration now means the exchange of money or something of value. Mo. Const, art. Ill, § 39(9).