(dissenting).
Petitioners distinguish the operation of the pari mutuel system from the operation of slot machines, involved in State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328, by asserting that the player or better in the pari mutuel operation can, by exercise of his own skill and judgment, forecast the outcome of the race, and thus place his bet without resort to chance, or with a minimum of reliance upon the element of chance. They acknowledge that the better cannot forecast the amount of the reward he will receive should the horse he chooses be a winner, particularly in the early stages of the betting, because the odd: are dependent upon the number and amounts of bets placed by other patrons upon the same and other horses entered. They urge, however, that the element of chance involved is a minor one and that the element of skill and judgment dominates and largely controls the result.
In this case, no significance can be attached to the proceedings of our constitutional convention in which the words “game of chance” were stricken from the original draft of § 20, Art. 3, of our Constitution. II Constitutional Convention 1248 .. That action was taken on motion of delegate Ainslie, from Boise county, where mining by Chinese was then the principal industry. Certain games of chance were engaged in *369by the Chinese at that time. These games were licensed and the license fees were paid into the county school fund. It was Mr. Ainslie’s desire to continue such licensing for the benefit of the school fund. The games were not named or described, and no mention was made of pari mutuel or any other such game.
The proceedings of the Utah convention were to the contrary effect. In Utah State Fair Ass’n v. Green, 68 Utah 251, 249 P. 1016, the court called attention to the fact that the constitutional convention adopted the prohibition against lotteries after being assured by a lawyer-delegate that the provision would not prohibit horse racing. The assurance was given in response to a question by a delegate who mentioned betting on such races.
As appears from the definition of “lottery” as accepted by this court in the Garden City case, “game of chance” and “lottery” are practically synonymous. Speaking of “games of chance” in State v. Gupton (1848) 30 N.C. (8 Ired. L) 271, the North Carolina court said:
“ ‘ * * * Therefore it is apparent that those games are specified in contradistinction to other games which are not games of chance. In other words, those terms must he understood in their plain, popular sense, as descriptive of a certain kind of games of chance in contradistinction to a certain other kind, commonly known as games of skill. Though our knowledge of such subjects is very limited, yet we believe that, in the popular mind, the universal acceptation of “a game of chance” is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill, or adroitness have honestly no office at all, or are thwarted by chance. As intelligible examples, the games with dice which are determined by throwing only, and those in which the throw of the dice regulates the play, or the hand at cards depends upon a dealing with the face down, exhibit the two classes of games of chance. A game of skill, on the other hand, is one in which nothing is left to chance; but superior knowledge and attention or superior strength, agility, and practice, gain the victory. Of this kind of games chess, draughts or checkers, billiards, fives, bowls, and quoits may be cited as examples.’ ” Annotation— Games of Chance or Skill, 135 A.L.R. 110.
In Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51, the Florida court observed that in Arkansas (State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L.R.A.,N.S. 899, 118 Am.St.Rep. 29, 11 Ann.Cas. 277) and in Kentucky (Cheek v. Com., 79 Ky. 359; City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, id. *370116 Ky. 845, 79 S.W. 201) the'courts, although recognizing that the weight of authority was against their position, held that horse facing was a game of skill, because that was a decided principle of long standing in those jurisdictions. After stating that it was unnecessary to decide whether horse racing in itself was a game of chance, the Florida court said:
“ * * * Regardless of whether horse racing, within itself, is a ‘game’ or a ‘sport,’. or, if a game, whether it be one of ‘skill’ or of ‘chance’ — when a group of persons, each of whom has contributed money 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 rtated horse to win such race, the redeemable value of the certificates so obtained and held by the contributors to such 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,’ * * 111 So. at 812, 52 A.L.R. at 68.
In the early case of Tollett v. Thomas (Eng.1871) 6 Q.B. 514, 521, the court reasoned that pari mutuel betting on horse races was a game of chance as follows :
“In the present instance, an element of chance is introduced, which, though not having any reference to the main event — namely, the result of the race in the winning of a particular horse— is yet essential to making the wager laid upon the winning horse profitable to the better. The winning of the horse betted upon is of course the primary condition of the wager being won; but whether the winning of the wager shall be productive of any profit to the winner, and more especially what the amount of that profit shall be, depends on the state of the betting with reference to the number of bets laid on or against the winning horse— a state of things fluctuating from one minute to another throughout the duration of the betting. Now this being something wholly independent of the issue of the race, as well as of the will and judgment of the winner, depending; as it does, on the will or caprice o’f the other persons betting, is a matter *371obviously of uncertainty and chance to the individual better, more especially in the earlier stages of the betting. There being, then, this element of chance in the transaction among the parties betting, we think it may properly be termed, as amongst them, a game of chance.”
In Opinion of the Justices (1947) 249 Ala. 516, 31 So.2d 753, 755, the court summarized the reasoning by which courts in other jurisdictions arrived at the conclusion that pari mutuel betting was not a lottery, as follows:
“ * * * The general theory of these authorities is that the form of wagering sought to be legalized in the present bill does not make the betting a mere game of chance since the better can exercise his reason, judgment and discretion in selecting the horse he thinks will win and that horse racing, like foot racing or boat racing, is a game of skill and judgment and not a game of chance. It is pointed out that in a horse race the winner is not determined by chance alone as the condition, speed and endurance of the horse and the skill of the rider are factors affecting the result of the race.”
The Alabama court concluded:
“Upon consideration of the matter, however, we conclude that the element of chance is so present, in the form of pari-mutuel betting as tc make that system with its paraphernalia, etc., a ‘lottery’ within the meaning of the constitution of this state. It is true that the result of the race may be determined by the qualities of the horse and rider, but the amount which the better will receive, if the horse of his choice wins, is purely a matter of chance.”
In State ex rel Moore v. Bissing (1955) 178 Kan. 111, 283 P.2d 418, 423, the Kansas court was concerned with the operation of the pari mutuel system at dog races. After referring to the three elements of lottery— consideration, chance and prize — the court said:
“ * * * [wjhat, then, is the chance involved? The answer is very simple. In the first place, there is no guarantee that a certain dog is going to win, and neither is there any guarantee that a bettor will always pick a winner. In placing a wager the bettor takes a ‘chance’ that he is picking the right dog. In the second place, under the pari-mutuel system of betting every bettor takes a ‘chance’ on the amount he will win, even though his dog finishes in the exact position he bet that he would, for the reason that under this system the exact ‘odds’ on a particular dog to ‘win, place or show’ cannot be determined .until the betting is closed and information regarding the *372number and amount of bets is tabulated by the pari-mutuel machine, which, in the last analysis, is simply a device for calculating the odds.
“Defendant’s argument to the effect that the outcome of the race itself, and human knowledge, skill and experience, the condition and speed of the dog whose efforts, together with the efforts of persons charged with the breeding, training and handling of such animals, are the sole factors which determine the recipient and amount of the prize, and that no element of ‘chance’ is thus involved, simply does not take into account the practical everyday realities of human instincts and life.”
In the foregoing decisions the courts rely heavily upon the element of chance and uncertainty involving the amount which the holder of a winning ticket will receive from the pari mutuel system. That, however, is not the only uncertainty, hazard, or chance upon which the moneys to be distributed by the system at the conclusion of the race is determined. Horse racing itself is a “sport” or a “game” in which the winning horse is determined by the breeding, stamina and training of the horse, and the skill, experience and management of the owner, trainer and jockey. It is to be regarded as a game of skill; and the racing of horses for a “purse” or “prize” payable to the owner, trainer or jockey of the winning horse, is not a lottery. If the owners, trainers and jockeys were the only persons placing bets in the pari mutuel operation, the outcome and the prizes to be distributed might logically be said, in some measure, to result from the application of their skill and judgment. But, when members of the public at large engage in placing bets upon the result of the races, no such conclusion can be drawn. The patrons of the race tracks know little or nothing about either the quality of the horse, or of the jockey. Their choice of a horse to “win,” “place” or “show,” is at most a guess. Any distribution they may receive is the result of chance. Most such bets are placed as a result of a hunch or some whimsical fancy, and do not result from the application of skill or judgment. The fact that most bets are so placed is a matter of common knowledge. The courts should not close their eyes to facts known to the general public. Furthermore, as stated in petitioners’ brief:
“The track makes every effort to grade horses according to their ability to perform and to handicap them to equalize the chances of each horse to win.”
This classification of the horses is done by the experts. The result is that the ordinarv pari mutuel patron is almost completely without ability to pick a winner, or to *373exercise any appreciable skill or judgment in that regard.
What the Missouri court said in State, ex Inf. McKittrick v. Globe-Democrat Pub. Co., 341 Mo. 862, 110 S.W.2d 705, 113 A.L.R. 1104, is apropos here:
* * whether chance or skill was the determining factor in the contest must depend upon the capacity of the general public- — not experts — to solve the problems presented.”
Also, what the New Jersey court said in State v. Lovell, 1877, 39 N.J.L. 458-462:
“ ‘The physical condition of the horse and his rider, the fastenings of his shoes, the honesty of purpose that actuates his rider and his owner in running him, the state of the weather and the track, and these circumstances in the case of every horse that races against him, are all matters about which the judgment of the outside bettor can avail him no more than the arithmetical calculation of chances can avail the dice thrower.’ ” Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433, at 443.
And by Chief Justice Smith, dissenting in Longstreth v. Cook, 215 Ark. 72, 220 S.W.2d 433, at 447:
“The overwhelming majority of those who are induced to patronize parimutuels make their selections as in a guessing game.”
Furthermore the patron who bets against the odds on a long shot in the hope of winning a greater reward, resorts to pure chance. “The lure of the long shoi is practically irresistible to the average human being. — C. B. Davis.” Webster’s Third New International Dictionary.
In my opinion the act attempts to authorize a lottery in violation of Art. 3, § 20, of the Constitution.
The writ should be denied.