Page:The Green Bag (1889–1914), Volume 16.pdf/917

 856

JURIES. (SOVEREIGN POWER OF STATE то REGU LATE PROCEDURE.) MISSOURI SUPREME COURT.

The right of the State to control methods of procedure and prescribe remedies is again presented in a different form in Roenfeldt v, St. Louis & Suburban Railway Com pany, 72 Southwestern Reporter 706. That action was commenced prior to the adop tion of the constitutional amendment au thorizing nine of a jury in a civil case to render a verdict, and it was contended that the case could only be tried under the mode of procedure existing when the suit was brought so that the constitutional amend ment did not apply to it. But the wellknown principle which has been often ad hered to in cases involving the statute of limitations and the statute of frauds was again applied, and it was declared that no one has a vested right to have his cause tried by any particular mode of procedure, but that the State has the sovereign power to prescribe the mode of trying cases in its courts and to alter the same from time to time as it may see fit. LOTTERIES. (GUESSES AT THE NUMBER OF CIGARS STAMPED IN A GIVEN MONTH.)

NEW YORK COURT OF APPEALS. The decision in People ex rel. Ellison v. Lavin, 87 New York Supplement 776, an elaborate note of which appeared in the July number of THE GREEN BAG, was reversed on appeal to the New York Court of Ap peals, the opinion being reported under the same title in 71 Northeastern Reporter 753. Reference may be had to the former note for the facts involved, a complete statement of which requires considerable space. It was there held in effect that where prizes were offered to those sending bands of cer tain makes of cigars for the closest esti mates of the number of cigars on which tax would be paid in a certain month, the number on which tax was paid in each month for three years being pub lished in connection with the offer, the distribution of prizes was not by chance within the section of the New York Penal Code defining lotteries as a distribution of

money by chance. In the opinion of the Court of Appeals, Black's Latí1 Dictionary is cited, where "pure chance" is defined to be the entire absence of all means of calcu lating results, and the court's holding is made to turn largely on the fact that the New York statute does not provide that in order to constitute a lottery the distribu tion must be by ''pure chance," or by "chance exclusively," but merely by "chance." The court reviews a number of cases bearing upon the distinction between games of chance and games of skill and upon the legality of schemes for the distri bution of prizes in accordance with guesses which may be partly the result of chance and partly of calculation, and it is concluded that the test of the character of a game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game. Attention is directed to the fact that the scheme under considera tion contemplates many thousand competi tors, and it is said that though if such a con test were limited to expert statisticians the award of the prize, despite the many ele ments of chance affecting the result, might possibly be held to be dependent on judg ment and not on chance. The number of cigars stamped varies, however, from month to month in the same year as greatly as 40,000,000, and between a month of one year and the corresponding month of the next year as greatly as 90.000.000, and the number stamped in the month immediately previous to that for which the estimate is called was 562,000,000. It would seem per fectly clear that if several experts should agree in estimating the output within 5,000,ooo, or one per cent, of the number actually stamped, it would show a remarkable ac curacy in their methods of calculation. Yet, with 35,000 competitors the probabilities are overwhelming that the first prize will be won by a very much closer approximation. If the difference between the estimate which won the first prize and that which secured the second prize should be only 10.000 or even 100,000, would any one deny that the