UNITED STATES v. ONE BOX OF TOBACCO. "FOOT PRINTS.", 190 F. 731

KELLER, District Judge (after stating the facts as above). The only question arising on this writ of error is as to whether the methods of the claimant are violative of the act of Congress above quoted.

It is strenuously contended that inasmuch as the claimant conducts no lottery or drawing for the redemption of any of his tags, but, on the contrary, stands ready to redeem any and all of them at the uniform value of 50 cents per tag, such tags cannot be held to be “any instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery.” He says in his argument: “The act evidently in its very letter comprehends a ticket (instrument) which shall depend for its value upon or participate in a lottery conducted somewhere else.” If this premise be granted, the conclusion would follow that the plan of the claimant was not violative of the act.

But we think the premise cannot be granted. The assumption is that to be violative of the act the value of the instrument or ticket must be dependent upon the event of a lottery, or, in other words, upon chance. We know of no warrant for thus construing the act. It cannot matter whether the methods used make the value of the instrument dependent upon chance or its possession (it having a fixed value) dependent upon chance. Suppose, instead of placing a redeemable tag in the cut of tobacco, the claimant had placed therein a silver half dollar.

The absolutely decisive contingency would lie in the choice of cuts, and the prize would be his who selected the cut containing the coin. Could it be said that the possession of the coin was not dependent upon the event of a lottery? Under this very clever scheme the lottery is conducted in the shop of the retailer. The tickets are the 5-cent cuts of tobacco, each of which, under the testimony in the case, is worth at retail the price charged for it, and one of which out of every 100 is worth 50 cents in addition.

The possession of this prize is determined by chance, and the case seems in principle not different from that of Reg. v. Harris, 10 Cox’s C. C. 352. Still more nearly in point is the case of Taylor v. Smetter, 11 Q. B. D. 207, where packets, each contain? ing a pound of tea, were sold at so much per packet. In each packet was a coupon entitling the purchaser to a prize; said prizes varying in value and in character. The tea was admittedly worth the money paid for it. In this case the purchaser of each packet was entitled to a prize, the nature and value of which was determined by the coupon hidden in the packet.

It was held that this was a lottery. It would assuredly not have been less so had only one packet of tea in every 100 contained a coupon calling for a definite value. In our view, it will not do to limit the definition of a lottery to a scheme whereby the value of the certificate is dependent upon lot or chance. It does, and should equally include, a scheme whereby the possession and enjoyment of the prize is made to depend on lot or chance however compassed.

The rule of construction in such cases, while properly strict, should not lie such as to emasculate the true meaning of the provision, and we are entirely sure that the prohibition was aimed against the use in connection with the packing of tobacco of any device for the distribution of prizes, to be effected by the aid of lot or chance, and was entirely indifferent to the particular means used to accomplish the result.

The fact that the scheme adopted by the claimant was a simple and effective one, obviating the necessity for any subsequent drawing'of prizes by making the event of the lottery depend on the successful selection of a cut of tobacco in the shop of the retailer, does not place it outside the prohibition of the law, but, on the contrary, by its very simplicity and practical effectiveness, makes it all the more attractive as an inducement to the prospective purchaser. The decree of the District Court for the Western District of North Carolina, dismissing the libel, must- be reversed, and a new trial awarded.

Reversed.