(dissenting).
I dissent. Unless we expressly overrule State v. Schubert Theatre Players Co. 203 Minn. 366, 281 N. W. 369, plaintiff’s bank-night scheme must be held to be a lottery. There is no difference in substance between the facts here and those of the Schubert case.
In the Schubert case, the purchaser of a theater admission ticket received from the ticket seller a separate coupon bearing a serial or identification number. These coupons were also given free to non-purchasers of tickets who called at the theater and requested them. All coupon holders, whether ticket purchasers or not, participated in the drawing on bank night, but those without admission tickets were not admitted to the theater to witness either the show or the drawing. The ticketless coupon holders were permitted to stand in the theater lobby or on the sidewalk outside, where they could hear the announcement of the lucky number. Any coupon holder in the lobby or on the sidewalk whose number was called was admitted free to claim the prize.
In the instant case — which for convenience we shall call the Albert Lea case — the same device was used behind a more elaborate facade. The ticket seller did not give ticket purchasers or others a coupon with an identification number. Instead, identification by number was accomplished by assigning a permanent number to each potential bank-night participant through a system of registration. Any person, whether he purchased an admission ticket or not, could acquire a permanent registration number by signing the register in the theater lobby which he was invited to do by an appropriate sign. As a result, each bank-night participant was relieved for all time of the inconvenience of having to obtain each week a new identification coupon or card. As the holder of a permanent identification number, he could (like any coupon holder in *413the Schubert case) become the winner oí the prize if his number was drawn from the receptacle which contained the numbers of all registrants. He need not even remember his number, because when the lucky number was drawn it was checked with the register and the winner was called by name. In order to receive the prize, however, he, like any winner in the Schubert case, had to be present in the theater as a ticket-holding patron or stand outside in the lobby or on the sidewalk ready to dash in to claim the winnings within two and one-half minutes after the announcement of his name,3 subject to the following exception. If a would-be participant who had acquired an identification number by registration did not wish to buy an admission ticket, and furthermore did not wish to stand in the lobby or on the sidewalk with the other nonpaying participants, he could come to the theater once a week during certain business hours and sign an absentee card, which entitled him to notification if he was a winner and to an extension of time from two and one-half minutes to 48 hours in which to claim the prize. In other words, unlike the nonticket-buying participants in the Schubert case, members of the Albert Lea nonpaying group could escape the rigors of standing in the lobby or on the sidewalk by qualifying as a potential winner in absentia by each week obtaining an absentee card. Aside from the superficial trimmings of permanent registration (which is nothing but a substitute for identification by numbered coupon) and the privilege of becoming an absentee winner, the controlling facts in the Albert Lea bank-night scheme are the same as those in the Schubert case.
A lottery has three essential elements, namely (1) a prize, (2) the prize must go to a winner by chance, and (3) participants in this game of chance must pay a consideration for the chance. It is conceded that the first two elements of prize and chance are both present. Plaintiff contends that the third element, payment of a consideration by the chance-taking participants, is absent. In the Schubert case, we held that the test is whether those participants who paid the regular price for admission to the theater were paying *414in part for the chance of a prize. In that case we said (203 Minn. 368, 281 N. W. 370):
“* * * Of course a person may distribute or give away his property or money by lot or chance provided he does so without a consideration. But the moment some pay for the chance of participating in the drawing of the prize it is a lottery under the law, no matter how many receive a chance also to participate free and without any consideration. Whether the lottery is so conducted as to be profitable to the operator thereof is no concern of the law. It is safe to say that a jury would have no difficulty to find in this ‘Ten-O-Win’ consideration paid by those coupon holders who gained entrance to the theater by the admission fee, that fee being looked to by the operator not only to furnish the prize, but a profit which he could not hope for in the absence of the ‘Ten-O-Win’ scheme. And, as far as the free distribution of coupons to participate upon request, ive apprehend the jury could readily find that to be an attempted device to evade or circumvent the law. * * * in State v. Stern, 201 Minn. 139, 275 N. W. 626, * " * We * * * approved as sound the decision in Commonwealth v. Wall, 295 Mass. 70, 73, 3 N. E. (2d) 28, 30. To what was there quoted we add this particularly pertinent observation :
“ ‘A game does not cease to be a lottery because some, or even many, of the players are admitted to play free, so long as others continue to pay for their chances. * * * So here the test is not whether it was possible to win without paying for admission to the theatre. The test is whether that group who did pay for admission were paying in pant for the chance of a prize.’ ” (Italics supplied.)
In State v. Stern, 201 Minn. 139, 144, 275 N. W. 626, 629, we said:
“Whether a consideration is given for the chance of the prize is a question of fact. Where one who purchases an admission ticket for a bank night obtains free another ticket to participate in the chance for the prize, the court affirmed a conviction of the operators of the theatre for maintaining a lottery.” (Last sentence quoted is *415based on People v. Miller, 271 N. Y. 44, 2 N. E. [2d] 38.) (Italics supplied.)
As a matter of common sense, it is wholly immaterial — unless form is to be mistaken for substance — whether the right to participate in the chance for a prize, which accompanies the purchase of á ticket, is physically represented by the presentation to the ticket buyer of a separate coupon with the chance-drawing number thereon, or whether the chance-drawing number is permanently assigned to the ticket buyer through a system of registration.4 It is equally immaterial whether the ticket seller hands the ticket purchasers a number or whether the same thing is effected by a sign which invites purchasers and others to acquire a number by registration. Likewise, it is of no consequence that the use of absentee registration cards may have to some extent increased the number in the nonpaying group as long as another group paid in part for the chance of a prize. Many of the nonpaying registrants, through a sense of good sportsmanship, would be deterred from putting themselves in a position to draw a prize when they have contributed nothing by way of theater patronage or otherwise to bring the common stake or prize fund into being. Obviously, the trier of fact need not accept as genuine all the ingenious devices designed to give an appearance of no consideration.
*416We must bear in mind (1) that -whether a consideration is paid is a question of fact; (2) that it is immaterial how large is the group which receives a chance without paying anything therefor if another group does in fact pay; and (8) that the acid test is whether the group that pays for theater admission tickets are paying in part for the chance of a prize. In the light of these principles which are controlling in this jurisdiction, unless our decisions reign only for the day they are issued, are we not compelled to affirm the trial court’s determination that a lottery existed? With the elements of prise and chance admitted, the evidence fully sustains, if it does not compel, a finding that the ticket purchasers paid in part for the chance of a prize. It is undisputed that the increase in paid admission attendance was greater on bank nights than on any other weekday night. Significant indeed is the further undisputed fact that if no participant won at a weekly bank night, or at a consecutive number of bank nights, and therefore the prize money accumulated and increased in amount, the paid admission attendance increased in proportion to the increase of the prize money to be won. The more money there was to win the greater was the incentive to buy theater admission tickets. There is no suggestion that the quality of the motion picture increased in attractiveness or quality as the prize money increased. The increased attendance cannot be attributed to advertising, unless the attendance stimulus supplied by the increasing amount of prize money is to be called by that name. Labels may disguise, but cannot change, facts. That it was not true advertising, but plainly the desire for prize-money gain, which so motivated the increased attendance that the only inference to be drawn is that the ticket purchasers were paying in part for a chance to win, is confirmed by another significant item. When, in the face of threatened prosecution, the Albert Lea bank-night scheme was dropped, there was a sudden and substantial decline in the paid-admission patronage. This was expressly admitted by plaintiff’s theater manager. When the chance to win a prize was gone, large numbers were no longer willing to pay the admission price for the limited purpose of seeing only the regular show. That the trial *417court was i*iglit in finding that ticket purchasers were in part paying for a chance to win a prize is further confirmed by an admission contained in the theater manager’s testimony when he said:
“Oh, yes, sure it does; there is no question about it. A lot of these people — well, I don’t know, it is something that is born in you where you like to get something for nothing, and that is where these hank nights come in, you have got the people down to see our shows and so forth, and as long as that element isn’t there to attract them, they more or less ha/ve fallen off in attendance as far as interest of the pictures are concerned.” (Italics supplied.)
Increased paid attendance at a theater — over and above the normal attendance — which is motivated by the desire to acquire a chance to win a prize in a bank-night drawing, is of itself sufficient consideration, though it be indirect, to establish the existence of a lottery. United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc. 280 Mich. 425, 273 N. W. 756; see, Affiliated Enterprises, Inc. v. Waller, 40 Del. (Terry) 28, 5 A. (2d) 257; State ex rel. Hunter v. Fox Beatrice Theatre Corp. 133 Neb. 392, 275 N. W. 605.
The Schubert case cannot be distinguished on the facts unless form is to be mistaken for substance. If we are not prepared to overrule the Schubert decision, the trial court’s order denying a new trial should be affirmed. An examination of the authorities, as well as a reconsideration based on sound reasoning, leads to a conclusion that the Schubert decision is sound and is not deserving of repudiation. In accord with the Schubert ruling, it is significant that 21 other jurisdictions have likewise held bank-night schemes to be lotteries, even though presence in the theater was not necessary to win and even though a substantial number did not in fact pay for their chance as long as some who did pay for admission tickets were paying in part for the chance of a prize.5
*418Knutson, Justice (dissenting). I agree with the dissent of Mr. Justice Matson. Mr. Justice Theodore Christianson, not having been a member of the court at the time of the argument and submission, took no part in the consideration or decision of this case.In the Schubert case, five minutes was allowed.
Many other jurisdictions attach no significance to the use of a system of registration. State ex rel. Hunter v. Fox Beatrice Theatre Corp. 133 Neb. 392, 275 N. W. 605; State ex rel. Hunter v. Omaha M. P. Exhibitors Assn. 139 Neb. 312, 297 N. W. 547; Furst v. A. & G. Amusement Co. 128 N. J. L. 311, 25 A. (2d) 892; State v. Jones, 44 N. M. 623, 107 P. (2d) 324 (overruling City of Roswell v. Jones, 41 N. M. 258, 67 P. [2d] 286); Troy Amusement Co. v. Attenweiler, 64 Ohio App. 105, 28 N. E. (2d) 207; State ex rel. Draper v. Lynch, 192 Okl. 497, 137 P. (2d) 949; City of Wink v. Griffith Amusement Co. 129 Tex. 40, 100 S. W. (2d) 695; Cole v. State, 133 Tex. Cr. 548, 112 S. W. (2d) 725; State v. Wilson, 109 Vt. 349, 196 A. 757; State ex rel. Cowie v. La Crosse Theaters Co. 232 Wis. 153, 286 N. W. 707; Stern v. Miner, 239 Wis. 41, 300 N. W. 738. Contra: State v. Horn, 16 N. J. Misc. 319, 1 A. (2d) 51.
Grimes v. State, 235 Ala. 192, 178 So. 73; Affiliated Enterprises, Inc. v. Waller, 40 Del. (Terry) 28, 5 A. (2d) 257; Gulf Theatres, Inc. v. State ex rel. Ferguson, 135 Fla. 850, 185 So. 862; Little River Theatre Corp. v. State ex rel. Hodge, 135 Fla. 854, 185 So. 855; Jorman v. State, 54 Ga. App. 738, 188 S. E. 925; Barker v. State, 56 Ga. App. 705, 193 *418S. E. 605; Iris Amusement Corp. v. Kelly, 366 Ill. 256, 8 N. E. (2d) 648; State ex rel. Beck v. Fox Kansas Theatre Co. 144 Kan. 687, 62 P. (2d) 929, 109 A. L. R. 698; Commonwealth v. Wall, 295 Mass. 70, 3 N. E. (2d) 28; Commonwealth v. Heffner, 304 Mass. 521, 24 N. E. (2d) 508; United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc. 280 Mich. 425, 273 N. W. 756; Glover v. Malloska, 238 Mich. 216, 213 N. W. 107, 52 A. L. R. 77; State v. McEwan, 343 Mo. 213, 120 S. W. (2d) 1098; State ex rel. Hunter v. Fox Beatrice Theatre Corp. 133 Neb. 392, 275 N. W. 605; State ex rel. Hunter v. Omaha M. P. Exhibitors Assn. 139 Neb. 312, 297 N. W. 547; Furst v. A. & G. Amusement Co. 128 N. J. L. 311, 25 A. (2d) 892; State v. Jones, 44 N. M. 623, 107 P. (2d) 324 (overruling City of Roswell v. Jones, 41 N. M. 258, 67 P. [2d] 286); Troy Amusement Co. v. Attenweiler, 64 Ohio App. 105, 28 N. E. (2d) 207; State ex rel. Draper v. Lynch, 192 Okl. 497, 137 P. (2d) 949; McFadden v. Bain, 162 Or. 250, 91 P. (2d) 292; City of Wink v. Griffith Amusement Co. 129 Tex. 40, 100 S. W. (2d) 695; Cole v. State, 133 Tex. Cr. 548, 112 S. W. (2d) 725; State v. Wilson, 109 Vt. 349, 196 A. 757; State ex rel. Cowie v. La Crosse Theaters Co. 232 Wis. 153, 286 N. W. 707; Stern v. Miner, 239 Wis. 41, 300 N. W. 738; State v. Danz, 140 Wash. 546, 250 P. 37, 48 A. L. R. 1109; State v. Greater Huntington Theatre Corp. (W. Va.) 55 S. E. (2d) 681. For list of cases pro and con, see Annotations, 109 A. L. R. 709, 103 A. L. R. 866, 57 A. L. R. 424, 48 A. L. R. 1115. Contra: State v. Horn, 16 N. J. Misc. 319, 1 A. (2d) 51.