Opinion
June 3, 1955 —
June 28, 1955.
APPEAL from a judgment of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit judge. Affirmed.
For the appellant there were briefs by Lees Bunge and John S. Coleman, all of La Crosse, and oral argument by Mr. Coleman.
For the respondent there was a brief by the Attorney General and William A. Platz, assistant attorney general, and George Thompson, Jr., district attorney of La Crosse county, and oral argument by Mr. Platz.
Appellant was convicted of the offense of operating a lottery in violation of sec. 348.01, Stats., and was sentenced to pay a fine of $100 and costs or to be imprisoned for thirty days in the county jail.
The facts are stipulated as follows:
"1. The defendant, in his individual capacity, did, on the 29th day of November, 1954, in the county of La Crosse and state of Wisconsin, dispose of personal property of value in that he set up and aided in the promotion of a game known as Banko, which game is more particularly hereinafter described.
"2. The mechanics of the game of Banko, as played on the date and at the place hereinbefore stated, are as follows:
"A. Any person wishing to participate in the game of Banko was required to do one of the following:
"(1) Go to any one of four retail grocery stores of the sponsor and obtain a Banko card or form, a copy of which is attached hereto and incorporated herein by reference. The `sponsor' is the person who provides the funds for the presentation of the Banko show on a TV outlet located in said city and county of La Crosse, Wisconsin, and who pays for the services of the defendant herein.
"(2) Or, in the alternative, go to any one of the two retail stores of the cosponsors of the game of Banko and obtain a Banko form. By `cosponsors' is meant the persons who contributed funds and prizes to the sponsor in order to help defray costs to the sponsor. It was contemplated by the defendant that the cosponsors would change from time to time. These retail stores were conveniently and prominently located.
"(3) Or, in the alternative, go to any one of approximately 20 nonparticipating businesses and obtain a Banko form. By `nonparticipating businesses' is meant businesses which did not participate in any way in the playing of the game of Banko except to distribute Banko forms in their retail business establishments. It was contemplated by the defendant that the nonparticipating businesses would change from time to time. These businesses were conveniently and prominently located.
"(4) Or, in the alternative, write to the sponsor and have the sponsor mail a Banko form to the participant. (Sponsor when sending the Banko form to the participant, also returned an unused three-cent postage stamp to the participant.)
"(5) Or, in the alternative, participant could make his own Banko form in his own home or elsewhere, in duplicate, and either in person or by U.S. mail, place the duplicate copy in the possession of the sponsor. (If the duplicate was sent by U.S. mail, the sponsor returned an unused three-cent postage stamp to the participant.)
"(6) All above methods were in fact used.
"3. The game of Banko, as played in and telecast from a television station on Monday, November 29, 1954, at the city of La Crosse, county of La Crosse, and state of Wisconsin, included the elements of chance and prize, as defined by the laws of the state of Wisconsin in connection with lotteries, and was played in the following manner:
"A. A person designated as `Miss Banko' threw ping-pong balls into a patented receptacle which contained numbers in the bottom of each of 75 compartments, which numbers consisted of the numbers `1' to `75' inclusive. There were approximately 53 persons in the TV studio at the time the ping-pong balls were so thrown. Each of such 53 persons had been provided with four Banko forms. As each number in the receptacle was covered by a ping-pong ball, each person in the studio would cover the corresponding number on his Banko form or forms, if such number appeared on any of his Banko forms. When any participant had five numbers in a row covered, or had five numbers in a diagonal row covered, such person exclaimed `Banko.' As soon as any participant in the studio went Banko the game was ended. Such person received no prize or consideration of any type for going Banko but was merely interviewed by the master of ceremonies during the program. Each member of the studio audience received a half-gallon of ice cream for participating in the game, and received such gift whether or not he went `Banko.'
"B. Any person in the video audience who went `Banko' at or before the same time that the game was ended by a studio participant going `Banko' received a prize, which prize was picked up by the winner from any one of the four stores of the sponsor. In addition, the ten members of the video audience who went `Banko' most rapidly received a greater prize. Any member of the video audience who went `Banko' with the first five numbers called received a still greater prize.
"C. The names and addresses of the Banko winners were posted at each of the four stores of the sponsor and at each of the two stores of the cosponsors, were published in the local daily newspaper, and were announced over the TV station and on radio.
"4. It is stipulated that no participant was required to make any purchase in order to obtain his Banko form and was not compelled to expend any sum of money to obtain his Banko form.
"5. It is stipulated and agreed that the sponsor and cosponsors were all businesses conducted and operated for profit, and who hoped to and did derive a commercial benefit or advantage by sponsoring or cosponsoring the game through increased traffic in their business establishments in addition to the advertising placed before the viewers of Banko as presented on said TV station.
"6. It is further stipulated that, in advance of the program, by means of radio, television, and newspapers, and that during the program, by means of television, the businesses of the sponsor and cosponsors were advertised in conjunction with the playing of the game of Banko.
"7. It is further stipulated, that the issues before the court are as follows:
"A. Based on the foregoing facts was the element of `consideration' present in the game as played, so as to make the playing of the game of Banko a lottery under the laws of the state of Wisconsin.
"B. The state of Wisconsin will attempt to raise issues attacking the constitutionality of subsection 2 of section 348.01 of the Wisconsin statutes. The defendant will resist such attempts, therefore the issue is whether or not the state of Wisconsin in this proceeding can attack the constitutionality of the statute."
The statute alleged to have been violated by appellant's operations reads:
"348.01 SETTING UP OR PROMOTING LOTTERY. (1) Any person who shall set up or promote any lottery for money, or shall dispose of any property of value, real or personal, by way of a lottery, or who shall aid, either by printing or writing, or shall in any way be concerned in setting up, managing, or drawing any such lottery, or who shall, in any house, shop, or building owned or occupied by him or under his control, knowingly permit the setting up, managing, or drawing of any such lottery, or the sale of any lottery ticket, share of a ticket, or any other writing, certificate, bill, token, or any other device purporting or intended to entitle the holder, bearer, or any other person to any prize or interest or share of any prize to be drawn in a lottery shall for first offense be imprisoned not more than six months or fined not exceeding $200; for second offense imprisoned in the county jail not more than one year or fined not exceeding $500; and for third offense imprisoned in the state prison not more than three years.
"(2) In order for a radio or television show or program to be held in violation of this section it shall be necessary to show that consideration involves either the payment of money, or requires an expenditure of substantial effort or time. Mere technical contract consideration shall not be sufficient. Listening to a radio, or listening to and watching a television show shall not be deemed consideration given or received."
Sec. 348.01(1), Stats., appears as ch. 138, sec, 1, R. S. 1849, and as sec. 4523, R. S. 1898. It was in force and effect, as sec. 348.01, in 1939 when we held in State ex rel. Cowie v. La Crosse Theaters Co. (1939), 232 Wis. 153, 286 N.W. 707, that "Bank Night," as conducted by a theater, constituted the operation of a lottery within the prohibition of that statute. In 1940, in State ex rel. Regez v. Blumer, 236 Wis. 129, 294 N.W. 491, we held that a merchant's scheme to increase sales by a "Multiple Dividend Plan" was likewise a lottery under the same statutory and constitutional provisions that applied to the Cowie Case, supra.
In these cases we said that a lottery involves three elements, — prize, chance, and a consideration ( Cowie Case, supra, at page 158), and consideration consists in a disadvantage to the one party or an advantage to the other. ( Regez Case, supra, at page 132.) Those elements and that consideration are obviously present in appellant's "Banko" operation and his brief makes the unavoidable concession, "Under that definition `Banko' admittedly would be a lottery." In 1951, as appellant points out, the legislature enacted sec. 348.01(2), Stats. This is, indeed, a peculiar statute. "Banko," in itself, is an admitted lottery, illegal as such under sec. 348.01(1), but when the voices and images of the players are picked up and broadcast by radio or television, sub. (2) purports to work a transformation. What was a lottery a moment before ceases to be one when the electric current is turned on. Or, if it is still a lottery it is one which has the approval of the legislature.
We agree with appellant's comment, "[The] purpose and intent of the Wisconsin legislature in passing sec. 348.01(2) was to permit games such as `Banko' to be played through the media of radio and television" and it is by virtue of such permission that he contends his operation of "Banko" is legal. As defined by Webster, "to permit" and "to authorize" are synonymous. Wisconsin Const., sec. 24, art. IV, declares: "The legislature shall never authorize any lottery, . . ." So appellant's own justification of his activity falls foul of a constitutional prohibition. He relies on an authorization which the constitution declares the legislature may not give him.
Our conclusion is, then, that sec. 348.01(2), Stats., authorizes some lotteries under some conditions and is void because it violates sec. 24, art. IV of the state constitution. This leaves the remainder of the statute as it stood when the Cowie and Regez Cases, supra, were decided. Under the stipulation of facts and appellant's own admission, "Banko" is so similar to the schemes which we considered in those cases that it constitutes the operation of a lottery and the judgment of the court and resulting sentence must be affirmed.
By the Court. — Judgment and sentence affirmed.