"El Debate Vs. Jose Topacio 044 Phil 278

"El Debate Vs. Jose Topacio 044 Phil 278 G.R. No. 19982 1922-12-29 Author / ponente: Malcolm Division / source category: 1st Division [1922V223] "EL DEBATE," INC., petitioner, vs. JOSE TOPACIO, Director of Posts, respondent. D E C I S I O N MALCOLM, J.: On November 16, 1922, El Debate, a newspaper of the City of Manila, published a full page announcement which in translation reads as follows: "P18,000.00 "HOW WIN THEM? "READ THE FOLLOWING "GRAND NUMBER CONTEST "El Debate opens on this date two contests: "The first contest is for the award of prizes for the nearest approximate guesses as to the total number of votes that will be cast for any of the winning candidates for Carnival Queen either in the provinces or in Manila. This contest will close at noon, December 23d. "The second contest is for the award for the nearest approximate guesses as to the total number of votes that the Queen elect will receive for the Carnival queenship. This second contest will close at noon of the day in which the final canvass of the Carnival queen contest will take place. "CONDITIONS TO PARTICIPATE IN THE CONTESTS "Any subscriber to El Debate may participate in these two contests by paying in advance at least the amount of the subscription of a quarter under the following conditions: The person who pays the price of a quarterly subscription shall be given a coupon for the first contest and another coupon for the second contest. He who pays for two quarters shall be given two coupons for the first contest and two for the second contest. He who pays for three quarters, that is to say, nine months, will receive three coupons for each of the said contests. And the one paying for a whole year will receive four coupons for each of the said contests. But payment is to be strictly in advance. "EACH 'CALCULO' (ESTIMATE OR GUESS) MUST BE EXPLAINED "Each calculo (estimate or guess) for any of the two contests must be accompanied by a brief statement or explanation containing the facts upon which is based. This explanatory statement may be in English, or Spanish, or in any Philippine dialect. And in order that the participants may have some basis for making a correct estimate (guess), El Debate will publish every day information about the partial results that will be made from day to day at the Carnival offices, circulation of newspapers, etc. Estimates (guesses) without the corresponding explanatory note will not be considered. "THE VERDICT "The decision of the first as well as the second contest will be made immediately after the Carnival Headquarters has made public the result of the provincial elections and the final election, respectively. As soon as a certificate of the results in the provinces and of the final result is received in our office, we will proceed to select from the estimates (guesses), those that are the nearest in order to award the prize winners. The statements or explanations of the winning participants upon which their estimate (guess) was based will be published in El Debate for the satisfaction of the public. The checking of the winners will be made in the offices of El Debate, 2 De la Rama Bldg., Sta. Cruz, Manila. "THE PRIZES "There are 110 prizes of the total value of P6,000 for the first contest, and for the second contest there are 215 prizes, the total value of which is P12,000, that is, a grand total of P18,000, based upon 20% of the value of 6,000 full subscriptions for one year, which is the present circulation of El Debate, and should this total value not be covered in the meantime, a proportional reduction of the number and of the amount of the prizes will be made. "THE PRIZES FOR THE FIRST CONTEST "First Prize P2,000.00 Second Prize 1,000.00 Third Prize 500.00 Two prizes of P200.00 each 400.00 Five prizes of P100.00 each 500.00 Ten prizes of P50.00 each 500.00 Twenty prizes of P20.00 each 400.00 Seventy prizes of P10.00 each700.00 ________ 110 prizes 6,000.00 "THE PRIZES FOR THE SECOND CONTEST "First Prize P4,000.00 Second Prize 2,000.00 Third Prize 1,000.00 Two prizes of P400.00 each 800.00 Ten prizes of P100.00 each 1,000.00 Twenty prizes of P50.00 each 1,000.00 Forty prizes of P20.00 each 800.00 140 prizes of P10.00 each 1,400.00 ________ 215 prizes 12,000.00" The Director of Posts, following the advice of the Attorney-General to admit the issues of El Debate, containing the advertisement, to the mails, for the reason that it fell within the provisions of the Administrative Code concerning non-mailable matter. Not satisfied with the ruling of the Director of Posts, the publishers of El Debate have had recourse to these original proceedings in mandamus to settle the controversy between the newspaper and the Government. The argument, while brilliant and informative to an unusually high degree, has covered a somewhat wider range than is essential. The issues will be more sharply defined and, correspondingly, our burden will be lightened, if all extraneous matter is thrown overboard. The demurrer interposed by the Government serves to admit the facts pleaded in the complaint. The applicable law is, likewise, conceded, as is also the extent of power of the Directors of Posts. Section 1954 (a) of the Administrative Code includes, as absolutely non-mailable matter, "Written or printed matter in any form advertising, describing, or in any manner pertaining to, or concerning any lottery, gift enterprise or similar scheme depending in whole or in part upon lot or chance . . ." As previously announced, the courts will not interfere with the decision of the Director of Posts as to what is, and what is not, mailable matter, unless clearly of opinion that it was wrong. (Sotto vs. Ruiz [1921], 41 Phil., 468; Reyes vs. Topacio, p. 207, ante.) In the next place, the fact that an Attorney-General of the Philippines has held one way and another Attorney-General an opposite way (and to make the record complete, we would add that an Attorney-General in 1912 also rendered an opinion on the subject), with reference to carnival lotteries and newspaper guessing schemes; the fact that three Attorneys-General of the United States sustained the validity of guessing contests, only to be overruled by an Attorney-General subsequently in office; the fact that the older authorities in the United States refused to hold such contests illegal, while a contrary view is now entertained; and the fact that guessing contests are held not to be lotteries in England, Canada, and other foreign countries, is relatively unimportant. Passing by the historical phases, what we want to know is the actual state of the law, and if the doctrines announced in the authorities rest on a sound basis of reason. In the next place, advancing one step further toward the issues, while countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of a lottery are: First, consideration; second, prize and third, chance. (Horner vs. United States [1892], 147 U. S., 449; Public Clearing House vs. Coyne [1903], 194 U. S., 497; U. S. vs. Filart and Singson [1915], 30 Phil., 80; U. S. vs. Olsen and Marker [1917], 36 Phil., 395; U. S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.) Reverting then to the admitted facts, to the admitted law, and to the admitted judicial doctrines, the fundamental question is this: Was the decision of the Director of Posts, refusing the privileges of the mails to El Debate, clearly erroneous? And the subsidiary question is this: Is the guessing contest of El Debate a "lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance" within the meaning of the law? Counsel for the petitioner is the first to admit that the element of prize is present. We are, therefore, relieved from considering this point. But he maintains that the element of chance "has been reduced to a minimum and is practically nil, while the element of consideration is totally absent." Taking up, these two points in order, we finally arrive at our task.