(dissenting).
I respectfully dissent. The majority has incorrectly identified the contract upon which plaintiff Severa Camero sued and must rely. The majority holds that the contract upon which plaintiff sued and recovered judgment was a Mexican contract where lotteries are legal. The contract between the lottery ticket owners and the Mexican National Lottery is one contract. The contract between the ticket holders themselves to share in and divide equally .any winnings from the lottery is a distinct and separate contract. Plaintiff asserted no action against the Mexican National Lottery. Her action is based upon her contract of partnership in ticket No. 33870 which she made with Famelisa in Texas.
The majority has, by reason of its first error in selecting the wrong contract upon which plaintiff relies, concluded that the contract was performable in Mexico rather than Texas. The contract sued upon was performable in Texas. Plaintiff Severa Camero and Famelisa made a contract of co-ownership of the ticket and to share equally in any lottery prize. That contract was made in Edinburg, Texas. Performance on that contract meant an equal division of the lottery prize. The contract was admittedly made in Texas. The presumption is that the parties contracted with reference to the law of the place where the contract was made, which was in Texas. Fidelity Mutual Life Ins. Co. v. Harris, 94 Tex. 25, 57 S.W. 635 (1900); Cantu v. Bennett, 39 Tex. 303, 304 (1873); 17 C.J.S. Contracts §§ 20, 257 (1963). The governing rule is summarized in Stumberg, Principles of Conflict of Laws (3rd ed. 1963):
“ * * * In a bilateral contract, when each party is to perform his promise in a different place, the rule necessarily breaks down, and the courts have usually felt compelled to refer the question of validity to the place of making. And when no place of performance is named in the contract, it is often necessary, in seeking the place of performance to resort to artificial standards and to presume that the contract was performable where made or at some other place.”
The majority therefore builds upon a false premise when it holds that “the transaction upon which title is based is one which related solely to Mexico and which required performance in Mexico.”
The case of Crutchfield v. Rambo, 38 Tex.Civ.App. 579, 86 S.W. 950 (1905, writ ref.) refused enforcement of an agreement to share in winnings from the lottery in Honduras, where lotteries were also legal. The plaintiff, Crutchfield, sued Rambo for one-half of the prize won by a ticket. Each party purchased lottery tickets and agreed that if any of the tickets won, the other party would share equally in the prize. The *429court identified the contract upon which the plaintiff sued. The contract to share in the proceeds was made in Texas and though it concerned the Honduras lottery, the court held it was not a contract governed by Honduras law. The majority has here held that the contract is governed by the Mexican law. Crutchfield held and recognized that it was the Texas contract between the parties which was sued upon and that Texas law governed rather than the law of Honduras.
The majority distinguishes Crutchfield because the lottery tickets were sold in Texas which was a violation of the Texas penal law. There, as in this case, it was the purchaser who asserted rights. There, as here, a purchaser of a lottery ticket violated no section of the Penal Code. There, as here, the argument was made that a purchaser should be permitted to recover in his action upon the lottery ticket since he violated no law. This was the argument to which the court addressed itself and rejected, saying:
“The trial judge held that the contract between the parties to divide the proceeds arising from a drawing in a lottery was contrary to law and public policy, and should not be enforced. We think the conclusion was correct. Lotteries are condemned by the laws of this state, and punishment is provided for those who establish lotteries or who may be engaged in the sale of lottery tickets, and it follows that any contract dependent upon lottery tickets is manifestly contrary to public policy. The contract in this case was based upon the chance of drawing a prize through one or more of the tickets they had purchased, and it would not matter, if, as contended, the parties had formed a partnership and had bought the tickets; the law would not lend itself to compel an accounting between partners engaged in a scheme to make -money that is condemned by the laws of the state. There can be no force in the argument that buying lottery tickets is not prohibited by the laws of Texas, and consequently a contract based on the purchase of such tickets would not be obnoxious to public policy. The law, in condemning the sale of lottery tickets, put the stamp of disapproval upon the whole transaction, and the buyer, although no penalty is attached to his act, is engaged in violating one of the statutes of the state. Suppose that a ticket bought by some person should draw a sum of money, but it should be withheld from the purchaser of the ticket, no court would aid the collection of the money from the lottery, for the reason that the buyer and seller would be in pari delicto, and could not enforce their contracts in the courts of the state.”
The determinative test for the right to recover on a gaming contract is stated in Crutchfield as it was in Oliphant v. Markham, 79 Tex. 543, 15 S.W. 569, 23 Am.St. Rep. 363 (1891). That test looks to the plaintiff’s cause of action to determine whether the plaintiff “requires any aid from the illegal transaction to establish the case.” Beer v. Landman, 88 Tex. 450, 31 S.W. 805 (1895). See, Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947); Oliphant v. Markham, supra; Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526 (1888) ; Read v. Smith, 60 Tex. 379 (1883); Hall v. Edwards, 222 S.W. 167 (Tex.Comm.App. 1920, judg. approved) ; Norman v. B U Christi & Co., 363 S.W.2d 175 (Tex.Civ.App.1952, writ ref.' n. r. e.); Crutchfield v. Rambo, supra; Russell v. Kidd, 84 S.W. 273 (Tex.Civ.App. 1904, writ dism’d); 26 Tex.Jur.2d Gaming and Prize Contests § 65 (1961). The rule is succinctly stated in Hall v. Edwards, supra:
“The authorities are agreed that a court will not lend its aid, in any manner, toward carrying out the terms of an illegal contract, and, when a plaintiff cannot establish his cause of action without relying upon such contract, he cannot recover.”
Plaintiff, Severa Camero, must rely upon her illegal contract with Famelisa to share in the winnings of the lottery. The issue between her and Alberto was the ownership *430of lottery ticket 33870. This was her theory of recovery and the issues which were submitted to the jury. The issues necessarily form the basis for her judgment and demonstrate this to be her theory:
“Special Issue No. 1. Do you find from a preponderance of the evidence that Famelisa Castilleja purchased ticket No. 33870 for the benefit of the plaintiff, Sev-era Camero and the defendant, Famelisa Castilleja?
“Special Issue No. 2. What do you find from a preponderance of the evidence was the amount paid by plaintiff, Severa Cam-ero to the defendant, Famelisa Castilleja on or about September 11, 1964?”
The majority, after its error in holding that plaintiff relies upon a Mexican contract which is performable in Mexico, makes further error in rejecting Texas’ public policy and holding that it will enforce the lottery contract which is not prohibited by the policy. For support of this proposition, the majority cites State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958). The court in Copus was treating a policy situation about which all Texas law was previously silent. There were no constitutional provisions, statutes, or cases which- guided the court in declaring the policy of Texas. The court was called upon to write upon a clean slate. Certainly, as held by the court, Texas has no strong policy reasons to forbid enforcement of a California judgment which required a son under a California statute to support his father during the time the son lived in California. In our case we -do not have a Mexican judgment. The policy of this state about gambling and lotteries, on the other hand, has been declared by Constitution, statutes and cases, is easily discernable, and has been consistent and unchanged for mor’e than a-oentury.
Texas policy about lotteries is declared by our Constitution, statutes and judicial decisions. Those are the proper repositories of a state’s public policy, District Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 138 Tex. 537, 160 S.W.2d 915 (1942), and not “the varying opinions of lawyers or judges as to the demands or interest of the public.” Southern Pac. Co. v. Dusablon, 48 Tex.Civ.App. 203, 106 S.W. 766 (1908, no writ).
Lotteries have been denounced as contrary to public policy in every Constitution of Texas since 1845. Article VII, § 17 of the 1845 Constitution expressly declared that:
“* * * No lottery .shall be authorized by this State; and the buying or selling of lottery-tickets within this State, is prohibited.”
This provision prohibiting lotteries appeared unchanged in the Constitutions of 1861, 1866, and 1869. But because this provision was so narrowly drawn, it was easily and freely evaded by the employment of the so-called gift enterprise. Consequently, when the framers of the present Constitution met in the 1875 constitutional convention, they sought to remedy this abuse of the lottery laws by adopting Article III, § 47 which provides that:
“The Legislature shall pass laws prohibiting the [1] establishment of lotteries and gift enterprises in this State, [2] as well as the sale of tickets in lotteries, gift enterprises or [3] other evasions involving the lottery principle, established or existing in other States.”
By adopting § 47, it is evident that the framers intentionally declared “not only lotteries, but ‘gift enterprises and other evasions involving the lottery principle’ as contrary to the public policy of the state, and made it the duty of the Legislature by penal laws to prohibit their operation.” City of Wink v. Griffith Amusement Co., 128 Tex. 40, 100 S.W.2d 695 (1936). In compliance with this mandate, the Legislature enacted ‘art. 654, Vernon’s Ann.P.C., which makes the establishment arid operation of a lottery, as well as the sale of lottery tickets, a criminal offense.
The majority holds that lotteries are legal in Mexico; therefore Texas courts will en*431force a Mexico gaming contract. Garza v. Richmond, 249 S.W. 889 (Tex.Civ.App.1923, no writ) holds directly to the contrary. Richmond played roulette in Mexico and gave a check for $300.00 to Garza who ran the gaming house. The court refused to enforce the check though roulette was a legal enterprise in Mexico. California refuses to enforce gambling contracts made in Nevada where gambling is legal. Braverman v. Horn, 88 Cal.App.2d 379, 198 P.2d 948 (1948) ; Hamilton v. Abadjian, 30 Cal. 2d 49, 179 P.2d 804 (1947).
Texas courts, applying their own public policy, have denounced things done and authorized to be done beyond the borders of Texas in many instances though lawful outside of Texas. In Wilson v. Smith, 373 S.W.2d 514 (Tex.Civ.App.1963, writ ref. n. r. e.) the court struck down a provision of a Texas testamentary trust which authorized the establishment of a clinic-hospital which was in violation of the Medical Practice Act, the Chiropractic Act, and the Hospital Licensing Act of Texas. The fact that the proposed clinic-hospital was to be established in the State of California where it would be entirely lawful did not persuade the court to ignore the Texas public policy. Taylor v. Leonard, 275 S.W. 134 (Tex.Civ.App.1925, no writ) held that a contract for the sale of California land made by a Texas married woman while she temporarily resided in California would not be enforced because the enforcement of the California contract would contravene Texas public policy. Accord, Bramwell v. Conquest, 2 S.W.2d 995 (Tex.Civ.App.1928, no writ). A Minnesota contract that was legal in that state but illegal in Texas was not enforced in Texas because it contravened our public policy. Watkins Co. v. McMullan, 6 S.W.2d 823 (Tex.Civ.App.1928, no writ). Accord, Byrd v. Crazy Water Co., 140 S.W.2d 334 (Tex.Civ.App.1940, no writ).
It is unfortunate that the court has applied the law and policy of Mexico in .a-case in which Mexico is not the forum, none of the parties is or was citizens of Mexico, and the case does not concern a contract made in Mexico. The Mexican National Lottery and Mexico have no concern or interest in this dispute. It is unfortunate that Texas courts are required to apply the law of a foreign jurisdiction to a dispute between its own citizens. It is unfortunate that in doing so Texas holds that its own policy is inferior to that of a foreign jurisdiction. In my opinion Texas is the only jurisdiction which now has any interest in this dispute, and its own public policy should apply. See, Currie, The Conflict of Laws, p. 183-184 (1963).
I would reverse the judgments of the courts below.
CALVERT, C. J., joins in this dissent.