pany, whether such agent or representative is acting as an individual or as a firm, bank, corporation, or association of any kind, to return all such registered letters to the postmaster at the postoffice at which they were originally mailed, with the word 'Fraudulent' plainly written or stamped upon the outside thereof; and all such letters so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster-General may prescribe. But nothing contained in this section shall be so construed as to authorize any postmaster or other person to open any letter not addressed to himself. The public advertisement by such person or company so conducting such lottery, gift enterprise, scheme, or device, that remittances for the same may be made by registered letters to any other person, firm, bank, corporation, or association named therein, shall be held to be prima facie evidence of the existence of said agency by all the parties named therein; but the Postmaster-General shall not be precluded from ascertaining the existence of such agency in any other legal way satisfactory to himself.

Sec. 4041. The Postmaster-General may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any other scheme for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations or promises, forbid the payment by any postmaster to said person or company of any postal money orders drawn to his or its order or in his or its favor, or to the agent of any such person or company, whether such agent is acting as an individual or as a firm, bank, corporation or association of any kind, and may provide by regulation for the return to the remitters of the sums named in such money orders. But this shall not authorize any person to open any letter not addressed to himself. The public advertisement by such person or company so conducting any such lottery, gift enterprise, scheme, or device, that remittances for the same

may be made by means of postal money orders to any other person, firm, bank, corporation or association named therein shall be held to be prima facie evidence of the existence of said agency by all the parties named therein; but the Postmaster-General shall not be precluded from ascertaining the existence of such agency in any other legal way."

The first section of the act of Congress of March 2, 1895 (Acts 1894-5, page 963), made it a criminal offense for any one to "cause to be brought within the United States from abroad, for the purpose of disposing of the same, or deposited or carried by the mails of the United States, or carried from one State to another in the United States, any paper, certificate or instrument purporting to be or represent a ticket, chance, share or interest in or dependent upon the event of a lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, to be brought in the United States, or deposited in or carried by the mails of the United States, or transferred from one State to another?"

And the fourth section of the same act provides: "That the powers conferred upon the Postmaster-General by the statute of eighteen hundred and ninety, chapter nine hundred and eight, section two, are hereby extended and made applicable to all letters or other matters sent by mail."

CHAPTER II.

The discussion in this chapter will embrace the definition and, under that head, the essential and non-essential elements of a lottery scheme. The subject of "Prizes dependent upon lot or chance" will also be fully examined in the light of gambling transactions other than lotteries.

THE DEFINITION OF LOTTERY.

Sec. 7. Before proceeding to the discussion of this subject, the general rules, which have been applied by the courts in the interpretation of lottery schemes, will be briefly noticed.

In the American and English Encyclopaedia of Law, Vol. 13, p. 1178, this general statement is to be found:

"Many ingenious devices have been resorted to in attempting to evade the laws for the suppression of lottery schemes. The courts, however, have generally construed the purposes and results of these subterfuges with much strictness, and in almost every case they have been held to be in violation of the terms and meaning of those statutes for the prevention of lottery practices."

In U. S. vs. Wallis, 58 Fed. Rep. 942, the court said:

"The statute is directed against the use of the mails for the conveyance of any advertisement of 'any lottery or gift enterprise of any kind.' This language is sufficiently comprehensive to include any scheme in the nature of a lottery. **** It may be sufficient to say that this embraces the elements of procuring through lot or chance, by the investment of a sum of money or something of value, some greater amount of money or thing of greater value. When such are the chief features of any scheme, whatever it may be chris

tened or however it may be guarded or concealed by cunningly devised conditions or screens, it is under the law a lottery."

In Randall vs. State, 42 Texas, 585, the court remarked that "Courts will not inquire into the name but determine the character of the transaction or business in which parties are engaged."

It was said in Long vs. State (74 Md. 565-572) to be a valid exercise of power in a State to protect the morals and advance the welfare of the people by prohibiting every scheme and device bearing any semblance to lottery or gambling.

The Supreme Court of the United States in the Horner case, 147 U. S. 449, expressly gave its assent to the statement made in Commonwealth vs. The Sheriff, 10 Phila. Rep. 203, to the effect that whatever amounted to a distribution of prizes by lot was a lottery no matter how ingeniously the object of it might be concealed. And the same court quoted, with approval, the following language of the Maryland Court of Appeals in Ballock vs. State, 73 Md. 1:

*

* *

"Our statute does not justify a court expressly directed to so construe the law as to prevent every possible evasion, whether designedly or accidentally adopted, in deciding a thing is not a lottery simply because it lacks some element of a lottery according to some particular dictionary's definition of one, when it has all the other elements, with all the pernicious tendencies, which the State is seeking to prevent."

"The courts have uniformly looked beyond the mere form or device of the transaction and sought out and suppressed the substance itself." Wilkinson vs. Gill, 74 N. Y. 73.

"When such are the chief features of any scheme, whatever it may be christened or however it may be guarded or concealed by cunningly devised conditions or screens, it is, under the law, a lottery." U. S. vs. Fullerton, 74 Fed. Rep. 619. "But the law regards not mere semblance but the substance of things, and consequently these devices, however ingenious, can not be successful." State vs. Shorts et al., 3

Vroom, 398.

Justice Gibson, in meeting the contention in the case of Seidenbender vs. Charles, 4 Sergeant and Rawle, 151 (8 Am. Dec. (loc. cit.) 688), that the act of the Province of Pennsylvania of 1762, which declared all lotteries to be public nuisarces, applied only to lotteries concerning personal property and not to land lotteries, used this language: "I grant the legislature may not have had this particular kind of lottery in view; but was it intended to restrain the operation to those particular kinds of lotteries then in use, and to those only? I apprehend not. It is very clear that a particular kind of mischief, differing not in form or substance, but in degree only, from the one under consideration, and only less pernicious in its consequences, first induced the legislature to act on the subject. Shall the letter, which is sufficiently comprehensive to embrace this case, be restrained to the particular mischief then existing, and exclude one of the very same stamp, merely because it was not then practiced? This surely would not be a sound construction."

Judge Bell expresses the same thought in Monroe vs. Smelly, 25 Texas Rep. 586 (78 Am. Reps. 541). In discussing the question of what is a wager at common law and the exceptions to the general rule Judge Bell said:

"And it is perhaps the greatest glory of the common law that it is, in its truest sense, both conservative and progressive in its tendencies. The exceptions to the general rule of the common law on the subject of wagers fall into two classes: One class is based upon a concern for the interest of the public; the other is based upon a concern for the interests and feelings of individuals. In a merely political sense, a thing may be said to be contrary to public policy in one generation, * * * which is not so in the next. And when the law institutes an inquiry into the morality or immorality of a particular thing, the inquiry does not proceed upon abstract principles so much as upon the received and common opinion of the great body of the people, constituting the political community, upon which the law has its operation. So a thing, in contemplation of law, may be immoral to-day which was not immoral