Untitled Texas Attorney General Opinion

-E ATTOICATEY GENERMC.
OIF TEXAS.: '.,,
AUS+IN~ TEXAS~
April 13, 1948 .'
Hoti.Lloyd King Opinion No. V-544.
District Attorney
47th ~JudicialDistrict Re: The legality of the
Amarillo, Texas contest type theater
attendance stimulator
plan known as "Bank
of Knowledge".
De& Sirs:' .
Your letter of January 12 encloses data des-
criptive of a plan t.odistribute priaes,by question and
answer contests, The plan is denominated "Bank of Know-
ledge". The general scheme of the plan is outlined and
sample questions and answers used in a motion picture
, theater at Childress, Texas, are enclosed. You state:
"The operation of the plan is self-
evident from the attached instruments and
exhibits, and appears to be a question
and 'answerprogram similar to the Dr. I.Q.
program except that the entire audience
participates and there is only one award
given rather'than .severalawards. There
is no selection by chance or by lot or by
any type of device as to who may partici-
pate in answering the five questions. Any-
one in the theater may win the award."
Your particular question is:
"Does-the ope,rationof the'.Bankof
Knovjledgeconstitute,a lottery under the
laws of the State of Texas?"
The plan purports to operate essentially as
follows:
A substantial cash prize is posted by the the-
ater and all in attendance at the theater may participate
in the contest to win the prize'. If no prize winner is
selected, the prize for the subsequent contest is in-
creased. Regional and~national contests are contemplated
. I
398
Hon. Lloyd King, Page 2, v-544.
but a description of them is not contained in your lettel
or the data submitted. At the local contest, up to five
questions are asked from the stage. Following each ques-
tion, a number of answers are read from the stage and eat
answer is given a letter designation. The contestants
hold a card upon which appears a number of letters corre:
ponding to the various answers to each question. Bach cc
testant is to punch the letter which he bdieves corres-
ponds to the correct answer to each question. After the
contestants have punched answers to all five questions,
the correct answer to the first question is announced, al
those answering the first question correctly are to stanc
the remainder to remain seated. The answer to the seconc
question is then announced and those missing it are to bc
seated. This process is continued until all are seated
after the announcement of the answer of the fifth questic
or if one remains standing he wins. If more than one is
standing, some additional questions are asked and the prc
cess of elimination continues until a winner is.chosen.
If, however, no one answers the first five questions cor-
rectly, no winner for that contest is chosen. 13 is on11
in the event that more than one complete the first five
questions correctly that the process of elimination is
continued until a single winner is chosen.
The first five questions used in the perform-
ance ref.erredto are as follows:
QUESTION NUMBER ONE: Designate then President of the
United States that organized the."Rough Riders". Was
it: (A, Stonewall Jackson) L (B John Quincy Adams) -
(C, Theodore Roosevelt) - (D,~Wiiliam Howard Taft) -
(E, Woodrow Wilson) - (F, Ulysses S. Grant)?
QUESTION NUMBER TWO: In what year did Babe Ruth hit
home runs? Was it: (A, 1921) - (B 1923).- (c,
3) - (D, 1927) - (E, 1929) or @, 1931b
QUESTION NUMBER THREE: 'A method of what is called the
bertl-1lon system? Is it: (A, shorthand) - (B,,crimi-
nal identification) - (Ci transportation ) - (D, blind
reading) '- (E,~horse racing ) or (F; yachting)?
QUESTION NUMBER FOUR: About how many persons had crossec
the ocean by air before,Lindberg,made his solo fli ht?
Was it: (A, none) - (B, 4) - (C, 24) - (D, 42) - 7E,64)
ox- (F, 104)?
399 ,;
Hon. Lloyd King, Page 3, V-544.
QUESTION;NUMBER FIVE: Th,e'lstterR.with:a~,line drawn
through the tail,at the~top of a,doctorls~.pres.cr$pt$en
"{blank means: (A, prepare) - .(B,mix well),:-;.l(!:,::atten-
tion) - (D, I prescribe) - (E;keep cool) or .(F,~recipe)?
Questions for elimination in.the;event of a
tie; t;';at
is; in the event more than one.personan~swers
.a11 five of~the,foregoing questions correctly, are:
:
Who was bid'Hickory? Answer..,
- $;;kzn..
‘#ho~invented,the.steamboat? *
-Nhat.isswiss~ chard: :., 1, : A'vegeiable.
Article'~
65.4 'ofthe.Penal Codes prohibits.the
establ~i&m+nt of a'loitery. The statute'contains no
:.defin&ion of a lottery but + this connection 2g Tex,
J@fh.409; 410 contains the foll,owi,ng
statement:
"The term lottery has no. technical
....e&&fication in the law, and s,ince'our
. _ statute does'~notprov'ide.a.definition,
..itsmeaning must be~determined from popu-
.le,rusage. According to that test a lot-
tery isa. scheme for the distribution of
prize,sby lot .or chance among those who
,...:',ha,ve.paid
or,.agreedto pay a consideration
for the,right to participate therein,~.or
:the distribution itself."
-In,order to,constitute a lottery it is ..gen-
erally considered that three elements must'be resent.
They,are:, .(l) consideration;~(2) prize; Andy P3) chance.
34 Am. Jur. 647,:648., The main question involved here
is whether or not the element of chance'exists in such
a degree as to make the plan illegal, it being conceded
that consideration land prize are,present.'
Two former opinions of this office.are perti-
nent to 'your inquiry?,both'of ,tiich,are attached hereto
for reference. Opinion No. V-238 involved a plan known
as "bonanza" It was there considered that if the ele-.
ment of .chaniepredominated over,the element of skill,
the other elements being present, the scheme was a lot-
tery. "Bonanzaflinvolved the distribution of tickets
on the.,back.cofeach of which was printed a question.
Eac~hticket was numbered. A d,rawingwas conducted and
those holding lucky numbers.were offered an opportunity
to answer t~he,question onthe back of their ticket. If
the question ,wasanswered,correctly, the lucky,person
Hon. Lloyd King, Page 4, V-544.
mightthen answer one or more of ten additional ques-
tions, and for each correct answer a prize was given.
It was there held that chance predominated over skill
and.the plan was held to be illegal.
In Opinion No. O-1789, this department passed
upon the legality of a theater program known as "Dr.
I. Q.". The "Dr. I. Q." ~ogram was conducted by select-
ing from the audience a number of persons, each of whom
was asked a series of questions similar,to those above
set out, and prizes were offered to each person indivi-
dually dependent upon his correct answers to such ques-
tions. In the "Dr. I. Q.v program, there was no contest
between the various members of the audience. There was
nothing to indicate that participants were selected by
a drawing. On the authority of Boatwright v. State,118
Tex. Cr. R. 381, 38 S. W. (2d) 87;hereafter discussed;
McRae v. State, 46 Tkx. Cr. R. 489, 81 S.W. 741; and
Hoff V. Daily Graphic, 230 N.Y.S. 360, 103 A.L.R. 870,
dealing with the question of skill v.,chance, it was
determined that the "Dr. I. Q." program did not violate
the lottery81aws of this State.
2 In Boatwright v:State, supra, the Appellant
was convicted of operating a lottery. He had exhibited
a punchboard from which might be punched a checker prob-
lem, the solution of which would require skill in check-
er playing. The exhibitor held the key to the better
solutions and customers were allowed to take the problems
home and work them out, presenting his solution to the
exhibitor of the board who, if the solution was the best,
awarded a prize. -The exhibitormightrequire under that
schenie.notonly the best solutioti``butthe quickest and
the neatest. The Court in that case said:
RIt is observed that the success of
t~heplayer in the game under consideration
depends upon practice, experience or skill.
Other than the ordinary chance or contin-
gency which isinvolved in practically every
human endeavor, the element of chance is
not present. The priae is drawn as a re-
ward for the skill of the player,'and not
by chance. The predominant element in the
game"is one of skill. There is no more re-
semblance to a'lottery in the game than
there is in the operation of the knife rack
described~in McRae v. State, 46 Tex. Cr. R.
489,.81 S.W. 741.~ In'that case, in holding
. .
," ,"
Hon. Lloyd King, Page 5, V-5&.
the,game.not within the .inhibition~of the,,.stat-
ute .denouncing lotteriesi Judge Davidsonsaid:.
.~
GcThe'evidence .disclosesthat it was an
ordinary knife rack, whichconsisted 'ofa'.slop-
ing:board and arranged so that rings could be
...thro~ and lodged upon.the ,kriives; and when the
player +@s fortunate enough to``throwone.of
,:.these..r&ngs,around.a knife, or catch itson a
. ~..~.kni.fe;~:'the,knife becamehis ,property. . ,.'...
.A
lottery is commonly understood as.a,,"schemefor
the.distribution of prfzes by lot or chance, es-
pecially a.gaming scheme in which,one or more
...tickets' bearing particular numbersdraw prizes "
, '~and.the rest.of.the tickets are blank."...There,'
,. were notickets distributed'under the scheme,,,
;-...as.:shown in'the testimony'but rings were sold,
.:'. andthethrower of the.rings took chances as tc
,/‘:'~whethe'r‘he could incloseoae of the knives by
.,I..
one..pf.therings..& thrown, and.the..succesa' of',
.;:.,the pitche'rdepended upon hfs .practije,~exper-
ience, or skill. :Jedo not believe-it was-la
lottery.'",
.:;.~,Y .I : ~.
; :..:.,,::,. :The.Court then cites'a number of caseswhich
-:had passed~upon,the.~identicalchecker~game punchboard.
,.~The~:Court.then quotes from Johnson V. McDonald?-132 Ore.
622:..-.287.Pat,.:220, 221; as-follows:
,~ US.'.~.~,
i:.;'``Itwill be seen from the directionsthat
the prize is'drawn, not by chance, 'but as a'red'
ward.fcr the .skill.ofthe'person claiming the .'
prize, If there is any’c+demhnt of ,chance at
all about the device,'it is in the.drawing'of
the problem: Any woblem drawn requires the
solutionof th.egame'of'checkers'pre8ented by
that particular problem.,'From the directions.
given with the Advertoshare.problem checker&,
boards:we~:.learn that the problem is the cample-
tion-of..a.game.of checkers thathas beenpart-
iallyjplayed. The device was,invented by a fa-
mous checker player. So far as it ishumanly
possible,'the seve~ral.problemsare of equal dif-
ficulty. No distr~i~bution of prizes is made by
chance'or lot.~ Gambling'does.nothave'any place
in the:game as itis intended to be played~. The
rizesoffered are trivial, and'do not offer any
.$nducementfor one to.purchase an oppartunlty to
play the game.
Hon. Lloyd King, Page 6,. V-544.
"There is no more resemblance to a lot.-
tery in the scheme than there is in a game.
of billiards or of cards where such games
are played in a public place and charges are
made for the privilege of using the billiard
tables or card tables. The predominantele-
ment in the game is one of skill.
would not appeal to my one who did=-y%
not 1 e
to play checkers. There is-no apparent .llke-
‘Iihoodat all that the game, if played as
designed. would cultivate a spirit of gambi-
w (Emphasis supplied)
The conviction was reversed because the game was held
to be one of skill and not of chance.
In Hoff v. Daily Graphic, 230 N.Y.S..360, ref-
ferredto above, the contest involved the selection of
play titles, appropriate to drawings published $n the news
papers and it was held that though,the solution involved
chance to some extent, it was pretiminately'a contest of
judgment and taste.
In Rouse v. Sisson, 199 So. 777, 132 A. L. R.
998, by the Supreme Court of Mississippi.ln 1941, the
Court considered a mechanical device which flashed a ques-
tion upon a screen upon the deposit of a nickel into the
machine. The machine then exhibited a number of alter-
nate questions and the player was given a~number;of see-.
onds in which to punch a key corresponding to what he
thought was the correct answer. A prise~was awarded if
he punched the correct.key. Such a machine was held to
be a game of skill rather than chance and was held to be
legal.
Attempts'to exhaustively examine the nature of
"chance".as .contemplatedby the laws of this country sup-
ressing lotteries could easily lead us into,an obscure
discussion throwing more shadow than light upon.the prob-
lem. The better approach is to ~look at the scheme as a
whole;:its purpose and the natural tendencies of those who
conduct it and participate therein.
We quote from 34 Am. Juris., page 656:
"It has been said that no sooner is the
term *lottery'.defined by a court, than ingen-
uity evolves some scheme within the mischief
discussed;although not quite within.the let-
ter of the definition given; but an examina-
tion of the many cases on the subject will show
Hon. Lloyd King, Page 7$ V-544. .~:
that it his very difficult,.if not im
sible, for the most ingenious and-suf?-
tie..~.-;'
"'
mindsto,devise..'anyscheme o'rplan,,short .:
of a~,gratuitoua,distri~butionof prope.rty;~
'..~
which hasnot.bean.held by the'courts of'
this country to,be in vio.lation.o.fthe:lotr``
tery laws in .forcein the,various:states of-
the:Uuion.. ;Ihe court will inquire,,not .in-.
tb'th&name, but into the..ganu?$ however skil-
fully'disg;u'ised,in order to ascertain if
it'is'prohibited,,or if it has'the ~eiement~
of'chinde..T1-:(Emphasissupplied)
:From 3~4:Am...Juris!9 page 647; wee quote:.
.~
~.Where,the term ~(lotterylis.not,de-
,,.
! 'finedby. statute.directed against.-itjit
.hae,.beenstatedthat.a definition which ,in-
,' eludes as an elementthe evil.which the- stat-
,.-* ute was. intend.edto prevent must be adopted.."
>,. ..i-@aphasis supplied) :'; .__ '_I_.". .,
I
From the leading c&eof"State v.~ Glob&Democrat
Publishing1 Company,,341: MO..,862, 110,3..W. ,(2d) 705, 113
A&R,.?:1104; ye quote:
._ ,= _,:.‘I : .I I,
/ ;’ ~‘-,‘.
,:.Y"It ,is impossible-to harmonize ,a11
.,. the~cases. But we draw~.the~.conclusion ``
.,..from them thatwhere:a contest is mult-
iple:.,or.serial,.,and:requiresthe.solution
of:a number of problems to win the,priie; :
: the..fact.thatskill alone will'bring con-.
testsnts to a:;correct~ solution~'ofa great-
,er part of the'problems doesnot make.tlie
~cont8st.eny~th8 less a lottery ifchance'
enters.into the solution of'another.lesser.~ '~
part of the'problems,and thereby~.proxim8te-~
: ~.ly-influencesthe ~final result. : Inother
.words,,the rule t&t chance,mustbe the .dond:,~
~n&.factor is,Yto~,be.taken in a qualitative
ore causative sense rather than a quantitative
sense. This was directly decided in Co1e.s
v::Odhams Pre,ss,,Ltd.:, supra, when it ~w8.s
held the question was not.to be determined
.onthe basis of.the'mere proportions of skill
land chance.entering.,inth,econtestas 'awhole.
..
_ '!.'.'
o 'O,,In.the‘instant
case,it stands.:
c.oncedeithat at the beginning of ,the 'Fam-
ous.Names' contest the cartoons were compara-
tively simple and the list of suggested titles
;r
240~,,, .
Lloyd King, Page 8, v-544.
was short. This made the conte~stinviting
to entrants. But towards the end the car-
toons became more 'Subtle' and as many as
180 titles had to be considered.' It was a
weeding out process, undoubtedly; and, if
chance inhered in the solution of these lat:
ter cartoons, though only a few of them,and
eliminated a large number of contestants,
then it must be said,the result was influenc-
ed'by chance.
"Further, we are convinced the question
whether the element of.chance was present
must be viewed from the standpoint of the
nearly 7O;OOO persons who entered the con-
test in response to the advertising thereof;
and that itis not to be measured byeany ab-
sol.uteor technicsl standards.' As was said
..in Coles v.~Odhams Press, Ltd., supra, 'the
competitor is the person to be considered'.~
In the instant case the public was informed
that any one might win; that no special skill,
training or education was required; and that
an opportunity was offered to gainsome 'easy
money'. It is true reference to the possibil-
ity ofchildren's winning was omitted from the
later advertising. but aside from that hope
was held out to Co.,
supra, and Waite v. Press Publishing Asstn.,
supra. All of these cases conceded an expert
might more nearly than a~nonexpert approach a
solution of the problems they were considering,
and then swept away that concession by saying
that nevertheless there remained unfathomable
elements in the problem which nobody could
solve. This might be taken to mean that, if
. -
Hon. Lloyd King, Page 9, ,V-544. : '~
contest ~problems'
can be solved-at.&11 chance
is eliminated. And the fadvertosharei check.-
er game‘cases seem-to partake of 'thattheory,
though:-there,ispossibly~an allowable“di$tincY~
tion;there, :.
.~.
'-ykut~'suchis .notthb trtiegeneral rule..
As.was -said,in,PeopIiex.rel; El'lisonv. Lavin,
supra,:if a"contest W8r.e solaly b.etweenexpe,rts,
possibly elements affecting'the result which no
one could fores'eemight.:&eheld dependent upon
.. judgmenV,'but.not so whenthe contest'is unres-~
trictedi' '&at 'is-a,matter.of.chancefor one'
; man'may"not'be -for another: And as Mr. Justice
Holmes said in Dillinghan v.,'McL&ghlin, 264
U:X:370,~ -373, 44 S:Ct.. 362;363, 68.L. Ed.
742, .r,whatAmman does'not-knoti,,apdcannotfind
out ischance as.'to~ him,~aridis recogn$&i as
.chance'.by,
the lati.~,l-
+~'
Obviously,,,ifsome'ab-'~
stl'~ce.pr~bl,em~co``arable'~'~ttd'~t~he.````st~in
the-,
ory weresubmitted to the general'.publicin ,a
,.prize.,conte.st
on 'the r'epresentationthat 'no
spe~cialtraining or education would be requir-
,edto 'solve~.it;,"the':
contention 'couldnot 'be
made; after contestants 'hadbeen 'inducedto
part ~Gith:'theirentrance monejr,,that-:~theele-
ment'of Wiance~'was.'absent 'bectiuse'there
were
a ,f,ey
persons ~,inthe tirld-tihopdssessed.the
.le~r``~g,necessa~'to unde~rstand, it,..*~.(Em-
phasis~supplied]. '.~. 1.;'.
.From,the authorities cited~,it is ahparent
that the manner in which the questions are presented
and the'nature of such questions willcontrol as fact
issues ineach. contest as to'whkther the contest or
any controlling 'poH5o.nof .it'is.redu'cedt'o'mere guess
or chance. '~It is impossible for us to say that in all
conte.stsunder the: Vank ,of"Kno'wledge" plan'inerechance
and.guesswill~.be dominantand therefore illegal, or
that:.skill'andknowledge will be dominant'sndtherefore
legal.,.,:._': ','_.-, "
.. .- .~;,-,
* :The par%icular questions submitted with your
repuest:as:the ones to:be used in the first performance
appea~rto.':present a contest based primarilyupon skill
and knotiledgerather than upon chance. If all the con-
tests or performances'are based upon similar questions
and are..conductedin a manner so that skill an'dknow-
ledge control rather than mere guesses, these contests
or performances would be lawful.
406
Hon. Lloyd King, Page 10, F-544.
On the other hand, it is entirely possible
for "Dank of Knowledge" questions to be so worded that
one or more of them rest wholly upon pure guesses in
so far as practically all of the'participants are con-
cerned. In such case the scheme may fall within the
class condemned by such cases as Stevens v. Times-Star
co., 73 N.E. 1058, wherein the contest involved an
estimate of the number of votes to be cast for Secre-
tary of State of Ohio in a particular election; People
v; Lavin, '71 N.E. 753, wherein the contest involved
an estimate of the amount ,oftax to be paid the United
States Government upon cigars- or White v. Press Pub-
lishing Association, 155 F. 5$, another contest involv-
ing an estimate of the votes to be cast in a president-
vial election.
The letter opinion on this subject by Frank
J. Delaney, Solicitor of the Post Office Department,
February 6, 1948, recognizes.that the circumstances of
each separate contest or performance are controlling.
After outlining~the procedure to be followed in the
first performance, the Solicitor says:
~*Whenconducted in.accordance with
the above dutline, and employing *8S-
tions of such a nature as not to require
the contestants to guess at their car'-
rect answers, matter relating to this
plan would appear to be acceptable for
mailing insofar as Section 601, Post&l
Laws and Regulations of 1940, is concern-
ed.".
Obviously we cannot anticipate the type of
questions which wili be used ,in subsequent programs.
Therefore, we cannot categorically stat8 that the "Dank
of Knowledge" plan is as a matter of law a lottery or
not a lottery. The question of whether chance predomi-
nates over skill cannot be determined abstractly, but
depends on the circumstances of each separate contest
operated under the plan. The plan.can be operated so
as not to violate the law. Likewise, it can be oper-
ated in such a manner as to be unlawful. Each contest
thereunder will present a separate fact situation which
cannot be prejudged as a matterof law.
SUMMARY
Whether the theater'question contest
plan knckvnas "Bank of ,Knowledge"is.a lot-
tery and violates Art. 654, V, P. C.,,is
. -
Hon. Lloyd King, Page 11, V-544:
a question to be determined upon the facts
and ,circumstancesof each contest and can-
not be.determined abstractly as a matter oft
law.. If conduct of the contest and the an-
swers to a given set of questions are depend-
ent primarily upon skill and knowledge rather
than upon mere chance, the contest 1,slawful.
On the other hand, if any controlling portion
ofta contest calls for'and is'dependent upon'
pure guesses or chance, it is a lottery and
is therefore unlawful.
Yours very truly
ATTORNEY GENERAL OF TEXAS
Assistant