"El Debate Vs. Jose Topacio 044 Phil 278

"We think, for the reasons given by the courts in the cases from which we have already quoted, the guessing contest before us come within the terms of the Michigan law and the mischief at which it was aimed. At the time the estimates on which this suit is based were submitted, the vote was yet to be cast; indeed, on June 6, 1904, when the Battrick estimate was sent in, one of the leading candidates for president had not yet been nominated. The number of persons who would be qualified to vote at the election, and the number who would cast votes which would be counted, were not only undetermined but impossible of ascertainment at the time the estimates were submitted. A thousand causes might, in one way or another, intervene to affect the total vote cast, so that at the best an estimate, if at all near the total vote cast, would be but a lucky guess. In so great a vote the necessary margin of chance would be so large that no element of skill or experience could operate to predict the result. While one skilled in national politics and conversant with existing conditions might make a closer estimate than one wholly ignorant, yet, after all, the successful persons in which skill and judgment could play no effective part." Conceding that the views of the American decisions are sound, - and upon this point they are so full and clear that little remains to be said; conceding that the estimates in the contest of El Debate will, to some extent, and possibly to a great extent, be effected by intelligent calculation, as has been ingeniously argued by counsel for the petitioner, the conclusion is nevertheless irresistible that the scheme depends in part upon chance. The estimates cannot be predicated upon natural and fixed laws, since the total number of votes that will be cast for the winning candidates for carnival queen may be affected by many conditions, over which the participants in this scheme have no control and cannot possibly foresee. We think it is perfectly clear that the dominating and controlling factor in the awarding of the prizes is chance. In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is derived directly or indirectly from the party receiving the chance, but does condemn as criminal, schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize. But what may appear on its face to be a gratuitous distribution of property by chance, has often been held to be merely a device to evade the law. Predicated on these legal assumptions, it is argued here with mush force that there is no consideration, for the reason that a subscriber to El Debate receives the full value of his money by receiving the paper every day for the number of months that he subscribes. The position is tenable, as respects those persons who would subscribe to the paper regardless of the inducement to win a prize, for as to them there is no consideration. The position is fallacious, as to other persons who subscribe merely to win a prize (and it is to such persons that the scheme is directed), for as to them it means the payment of a sum of money for the consideration of participating in a lottery. Moreover, the subscribers do not all receive the same amount, for there are few of them who will receive more than the others, and more, too, than the value paid for their subscriptions; through the chance of a drawing. (17 R. C. L., 1222; U. S. vs. Wallis [1893], 58 Fed., 942; State vs. Mumford [1881], 73 Mo., 647.) The general rule, therefore, is that guessing competitions or contests are lotteries within the statutes prohibiting lotteries. Indeed, it is very difficult, if not impossible, for the most ingenious and subtle mind to devise any scheme or plan short of a gratuitous distribution of property, which will not be held to be in violation of the Gamblinh Law, and repugnant to the Postal Law. It is for the courts to look beyond the fair exterior, to the substance, in order to unmask the real element and the pernicious tendencies which the law is seeking to prevent. The purpose of El Debate in devising its advertising scheme was to augment its circulation and thus to increase the number of newspaper readers in the Philippines - which is commendable. But the advertisement carries along with it a lottery scheme - which is not commendable. The evils to society arising from the encouragement of the gambling spirit have been recognized here and elsewhere. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infest the whole community; they enter every dwelling; they reach every class; they prey upon the hard-earned wages of the poor; they plunder the ignorant and simple. Punitive and condemnatory laws must, therefore, be interpreted and enforced by the courts in a way calculated to secure the object sought. (U. S. vs. Salaveria [1918], 39 Phil., 102; Phalen vs. Commonwealth of Virginia [1850], 8 How., 161; Stone vs. Mississippi [1880], 101, U. S., 814.) Open the door of chance but little, for one scheme, however ingeniously and meritoriously conceived, to pass through, and soon the whole country will be flooded with lotteries. Meeting, therefore, the issues in the case, we rule that the Director of Posts acted advisedly in refusing the use of the mails for the issue of El Debate which contained the announcement of its guessing contest, and that said contest is lottery, or gift enterprise depending in part upon lot or chance, within the meaning of the Postal Law. The demurrer interposed by the Attorney-General is sustained, and unless the petitioner shall, within five days, so amend the complaint as to state a cause of action, the case shall be dismissed, with costs. So ordered. Araullo, C.J., Avanceña, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.