Page:The Green Bag (1889–1914), Volume 16.pdf/558

 Notes of Recent Cases. that the distribution in this case was not to be made by chance, and the court holds that the point is well taken. It is said that it is manifestly impossible for any one to know in advance the number of cigars upon which the tax will be paid in a given month. The period for presenting estimates closed on the last day of the month preceding that for which they were to be made, and in addition, the announcement of the contest included for the purpose of advertising those who intended to estimate information as to the number of cigars upon which the tax had been paid during each month for the years 1900, 1901, 1902. The court holds that many things must be taken into consideration in making an estimate in such a contest. The prizes are awarded as a means of advertising the cigars, in the sale of which the company is interested. It is evident that the price of these cigars is the same for those who pre serve the wrappers and participate in the guessing contest as it is for those who Ho not. Sufficient information is furnished to afford them some basis for making an esti mate upon which their right to the prizes may depend, and they may possess or acquire other information that may be of assistance. The court adds that it may be well for the Legislature to prohibit such forms of com petition, by declaring enterprises of this character to be unlawful, but it is evident that the methods resorted to in recent years by merchants and traders engaged in ruinous competition were not foreseen in the early days when lotteries were prohibited, and therefore their prohibition is not within the purview of the lottery statute. In deciding the case, the court refers to many cases in which similar contests intended to evade the lottery law have been construed by the courts. Among others, Reilly v. Gray, 77 Hun. 402, 28 N. Y. S. 811, where it was held that pool selling did' not constitute a lottery; People v. Fallón, 152 N. Y. 12, 46 N. E. 296. where it was held that prizes offered by an association to the winners of race horses was not a lottery. People v. Gillson, 109 N. Y. 389. 17 N. E. 343. where the provision of the Penal Code making it a misdemeanor

507

to induce the purchase of one commodity by giving the purchaser of a specified quan tity other property was unconstitutional: Hull v. Ruggles, 56 N. Y. 424, in which it was held that selling candy in packages, some, but not all, of which contained tickets calling for silverware as prizes, was a lottery; Wilkinson z>. Gill, 74 N. Y. 63, in which it was held that policy is a lottery; Horner v. United States, 147 U. S. 449, 13 Sup. Ct. 409, 37 L. Ed. 237, in which it was held that a sale of bonds by the government of Aus tria, redeemable at a given time, but a num ber of which, to be selected by lot, were to be redeemable at figures far in excess of their par value, was a lottery within the federal statutes regulating the use of the mails. The court also cites a number of Canadian and English cases. A very similar case was that of United States v. Rosenbloom, 121 Fed. 180, in which it was held that prizes given to a person guessing nearest to the number of cigarettes on which internal revenue tax would- be paid during a given month was not a lottery within the prohibition of section 3894 of the Revised Statutes of the United States.

MILEAGE BOOKS. (DEATH OF OWNER.)

SUPREME COURT OF NORTH CAROLINA. In a short per curiam opinion it is held, in the case of Ninish г: Southern Railway Co., 47 Southeastern Reporter 432, that a mile age book could not be used for transporting the remains of the person to whom it had been issued. In this instance the mileage was presented by the husband of the de ceased when transporting his wife's remains over the line which had issued the book. This payment was refused and the action was brought. In the court below nominal dam ages were given the plaintiff, from which decision both parties appealed. The Su preme Court holds that at the death of the one to whom the mileage is issued, the un used mileage must go to the personal repre sentatives of the owner of the book. No authorities are cited.