I dissent. I cannot believe that either the framers of the constitution in drafting Const, art. 2, § 24, the state legislature in enacting RCW 9.59.010, or the Seattle City Council in enacting ordinance No. 16046, section 24, intended to prohibit innocent contests of this nature. Furthermore, the views of the present city and state authorities on this matter are amply demonstrated by the fact that the state Attorney General, the Prosecuting Attorney for King County, and the King County Executive have filed briefs in which they oppose the trial court’s judgment that the “Guest-Guesser” contest is illegal. I believe that the framers of our constitution would have joined in those briefs if they were with us today and had been given the opportunity to do so.
I am convinced that members of the governmental bodies responsible for the above-described enactments would be shocked to hear that the “Guest-Guesser” contest qualifies as a lottery. What is missing from the contest are the essential elements of (1) out-of-pocket consideration paid by the participant for the privilege of playing the game, and (2) chance.
The question of what kind of consideration (if any) flowing from the participant is necessary to constitute a lottery is not directly answered by the controlling constitutional and statutory provisions. Resort to the dictionary provides the would-be interpreter with two possible meanings: (1) an “allotment or distribution of anything by fate or chance,” or (2) “specifically, a scheme for the distribution of prizes by chance, in which a number of tickets are sold, one or more of which draw prizes.” (Italics mine.) Webster’s New 20th Century Dictionary, 1069 (2d ed. 1960). The constitution and the relevant statutes provide no guidelines for choosing between these definitions. Since the prohibition is essentially penal in nature, D’Orio v. Jacobs, 151 *512Wash. 297, 275 P. 563 (1929), it becomes our role to find the narrowest interpretation of the constitutional prohibition which is consistent with the intent of the framers and the ongoing societal interest in preventing conduct harmful to individuals or to the state.
I submit that posing the problem this way requires adoption of the narrower definition of the term “lottery.” Gambling is harmful to the individual when he suffers inordinate loss of money or property, not before. If a person does not have to pay to play, he stands only to lose his time, and control of a person’s disposition of his time is not traditionally (or even recently) a function of the government. Indeed, even the mention of such activity on the part of government should be sufficient to raise the now dormant specter of substantive due process.
In public policy terms, therefore, it is difficult to imagine that the constitutional prohibition against lotteries was aimed at anything other than the selling of chances to win prizes. The prohibition is designed to prevent impoverishment of the unwary and to prevent the public from wagering their money and property upon fortuitous events. State ex rel. Schillberg v. Safeway Stores, Inc., 75 Wn.2d 339, 450 P.2d 949 (1969).
Admittedly, such a construction runs contrary to the holding of this court of Safeway, wherein we concluded that Safeway’s “Bonus Bingo” game was illegal, that the expenditure of time, energy, and money on the part of the contestant and the benefits of increased sales, good will, and public interest accruing to Safeway were sufficient consideration to turn the game into a lottery prohibited by the constitution. In view of the fact that many essentially harmless activities are rendered illegal by the application of contractual consideration principles to a constitutional lottery prohibition, I believe this court should reexamine its definition of consideration in the Safeway case and replace it with an out-of-pocket substantial expenditure test.
However, even if the court is disinclined to follow this course of action, I am convinced that the “Guest-Guesser” *513contest should not be proscribed, for it is not a distribution of money or property by chance. If the court continues to believe that consideration in the form of time and mental effort invested in the “Guest-Guesser” contest is a sufficient element of a lottery, the court should, nevertheless, conclude that the requisite element of chance is missing from the contest.3 I believe that the various anti-lottery provisions applicable to this case represent nothing more than the attempted codification of the moral view that the distribution of anything by pure chance is immoral and should be made illegal. Any other view contravenes the relevant legislative intentions, and is certain to lead to inconsistencies and absurdities in application.
Under this point of view the result in Safeway is a correct one, since “Bonus Bingo” purported to distribute money on the basis of chance alone. But a different result would be required in the instant case since success in the “Guest-Guesser” contest, like success in many enterprises of life, requires the application of a considerable amount of knowledge and skill, as the trial court recognized in concluding that “no one will ever win the contest without skill
In summary, there are two possible interpretations of the anti-lottery provisions applicable to the instant case. Either these provisions are designed to prohibit the distribution of prizes by chance in return for valuable out-of-pocket consideration paid by the participants, in which case the result in Safeway is wrong and the outlawing of the “Guest-Guesser” contest is equally wrong; or the anti-lottery provisions are designed to prevent any distribution based on chance, whether or not money is paid for the right to participate, merely because the receipt of a prize without any concomitant expenditure of physical or mental skill or energy is somehow immoral. Under this interpretation, *514the result in Safeway stands, since the application of physical or mental skill to the “Bonus Bingo” game was minimal.
The majority opinion adopts the second interpretation, but then, following the standards set out by this court in Safeway, goes on to hold (1) that in order to be purged of moral taint sufficient to become legally consistent with the (questionably assumed) legislative intent behind the anti-lottery provisions, a contest must be designed so that chance is not the dominant element; and (2) that under this criterion the “Guest-Guesser” contest is an illegal lottery.
To begin with, I disagree with the “dominance” test adopted by the majority. I do not believe that this or any other court will ever be able to develop a workable scheme for determining whether chance is the dominant element in a particular contest. The relevant question should be whether any substantial degree of skill or judgment is required in a contest. If it is, that contest is not a lottery. State v. Coats, 158 Ore. 122, 74 P.2d 1102 (1938). Going beyond this point to require a preponderance of skill not only opens up definitional problems, but also does violence to the legislative intent as I understand it. Once the out-of-pocket consideration requirement has been read out of the law, the most reasonable remaining justification for the lottery prohibition, as applied to participants who pay no money or property for the right to play, is a moral belief that receiving something without working or thinking in order to get it is somehow wrong, and that any contest or system which distributes money or property in a manner bearing no relationship to the skill or effort expended by the participants should be illegal. Clearly, the expenditure of any substantial amount of skill or effort overcomes the “something for nothing” objection. Under this test, the “Guest-Guesser” contest is clearly not a lottery. The trial court found that no one could win it without skill. The contest therefore does not offend the legislative intent or violate the anti-lottery provisions.
Again, as in the case of the contractual consideration *515requirement, this desirable revision of the law would require modification of the Safeway decision, wherein a predominance of skill was held to be necessary to place a contest outside of the lottery prohibition.
However, even if the “dominance” test of Safeway is followed (and regardless of whether or not the Safeway contractual consideration concept is maintained), I do not believe that the “Guest-Guesser” contest is an illegal lottery under the “dominance” standard. The Supreme Court of Michigan has stated that football itself is not a game of chance. Rohan v. Detroit Racing Ass’n, 314 Mich. 326, 22 N.W.2d 433, 166 A.L.R. 1246 (1946). This conclusion fails to be totally obvious only because the results of a particular football game (or a number of them) often appear to be unknowable in advance. Closer examination reveals, however, that this apparent unpredictability is in large measure due not to chance or luck, but to the participant’s lack of sufficient skill and information to evaluate a complex series of interacting causes of the final outcome. A true game of chance, or a true lottery, is subject only to the mathematical principles of probability. In a true lottery, in Safeway’s “Bonus Bingo” game, or in a game of roulette, no amount of skill or application of intellect will enable a participant to foretell the outcome. The outcome of an honestly conducted lottery is not predictable, either in theory or in fact. But in the “Guest-Guesser” contest, the contingencies which determine the outcome of the games to be picked are, theoretically, and to a large extent practically determinable. A sufficient level of skill would ensure success. It is a game of skill, but because the level of skill necessary to ensure success is rarely, if ever, present, it appears to be a game of chance. It is worthwhile to note that such a high degree of difficulty is probably essential in any game of skill with large numbers of participants. The outcome of such a game must be based on difficult to predict contingencies. Otherwise there would be too many winners. For example, the crossword puzzle contest of the Seattle Post-Intelligencer appears to be a word game based on skill. But *516to reduce the class of winners to a manageable number, the clues must be deliberately made ambiguous. No one has sufficient skill to choose invariably the correct word from these clues. Will that contest therefore be the next victim of irrational moral crusading?
I am convinced that the majority’s' application of the “dominance” test in outlawing the “Guest-Guesser” contest has potentially disastrous consequences. Our society is full of “contests” involving predictions as difficult and contingencies as complex as those in the “Guest-Guesser” contest. Consider the stock market. Success in the market depends upon skill, but are not the contingencies involved in making the necessary predictions fully as complex as those in the “Guest-Guesser” contest, and the results' therefore as unpredictable and as seemingly dependent upon chance?
More specifically, one could read in the New York Times for January 16, 1972, of “The Great Money Game,” a contest sponsored by the Chase Manhattan Bank, wherein a number of New York stockbrokers were invited to take a hypothetical $100,000,000 and attempt to increase it as much as possible over a period of a year by stock market investment. The financial rewards (prize) to the winner were substantial. The effort expended by the contestants (consideration) was large. Would the undeniable difficulty of predicting all the factors which would lead to success require the prohibition of this game in the state of Washington?
Finally, in view of the fact that the list of examples of similar “contests” in our society could be extended almost indefinitely, I believe it is our duty to recall the language of this court in D’Orio v. Jacobs, 151 Wash. 297, 275 P. 563 (1929):
This is a penal statute and must be strictly construed, and we find in it no attempt to forbid games of skill or to bar the ordinary chance or contingency which is involved in practically every human endeavor.
The element of apparent unpredictability and chance in the “Guest-Guesser” contest is similar to that which exists in *517many activities of life — finding a job, being elected to office, winning a football game. These activities also have rewards or “prizes.” Should they also be declared illegal? Is life itself, by logical extension, an illegal lottery?
In view of these considerations, the enactors of the lottery prohibitions could only have intended, and it is the duty of this court to hold, (1) that an illegal lottery will be found to exist only where no substantial application of mental or physical skill is required; (2) that even if it is required that skill be the dominant factor, the inputs of time, thought, and skill needed to win the “Guest-Guesser” contest are sufficiently great to place it outside the scope of the applicable anti-lottery provisions; and (3) that this type of contest (involving results which can be predicted with skill, and cannot be predicted without skill) is clearly distinguishable from the pure chance lottery of Safeway. The intent of the enacting bodies was to strike at the substantial out-of-pocket cost of pay-to-play normal gambling, and (according to Safeway) at the immorality of pure-chance, “something for nothing” lotteries — not at free games of skill.
The “Guest-Guesser” contest is a game of skill. It is not a gambling game. It does not appeal to the gambling spirit. It is a wholesome exercise which allows citizens of widely varying economic and educational backgrounds to compete on turf where one’s skill is independent of one’s educational preparation. It contains no discernible evidence of harm. Richard Emerson, a regular contestant in the “Guest-Guesser” contest, put the matter well at trial:
This is my hobby. I do very little in the winter here. I don’t snow ski. I don’t do much of anything except watch football on T.Y. I’m not a winter sports fan. I wonder why I live here. But I do this as a hobby. I look forward to it. It’s my personal little thing that I do. Some people golf. I like to play football contests. Not for the money. It’s for the privilege of just being able to play and to know that I can win.
This type of contest lacks the ill effects which concerned *518the framers of the Washington State Constitution and the legislators who proscribed lotteries.
For this court to go beyond what seems to me to be the most common-sense interpretation of the legislative intent and to interpret the applicable provisions as outlawing contests like the “Guest-Guesser” game, would be to set an unfortunate and unnecessary precedent. After such a holding, the court will find itself on a confusing and frustrating trek down a road of inescapable logic paved with luck and skill mingled contests, throwing these contests into a judicially dug ditch of dubious illegality, at the expense of common sense and in contravention of the values and intent of the drafters of the statutes and of the citizens of this state.
I cannot agree with such a result. I would declare the “Guest-Guesser” contest legal.
There is an element of contradiction in the apparent conclusion of the majority opinion that invested time and mental effort are sufficient to constitute consideration flowing from the participant, but are insufficient to make the game one of skill rather than chance.