prize on account of that set, but the company receives and retains the money on each card that is returned.

The originator of the "chain" may well be, in many or most cases, the publishing company itself, which sends out these sets of cards for the purpose indicated.

The difference in the working of the plan, as outlined in your note, and as stated by me above, is a difference in degree only and not in principle; for, if either be obnoxious to the objection that it is a giving of something of value upon a mere chance, the other is equally so, though the chance of getting the thing sought may be greater or less in one case than the other.

Revised Statutes, section 3894, as amended by the act of September 19, 1890 (26 Stat., 465), provides that

"No letter, postal card, or circular concerning any lottery, so-called gift concert, or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, shall be received, transmitted, or delivered through the mails.

*

The language of this and of the section amended is peculiar in view of the evident purpose of Congress in this legislation. It speaks of "lottery, so-called gift concert, or other similar enterprise offering prizes dependent upon lot or chance." This necessarily means that lotteries and so-called gift concerts are similar in the sense in which Congress used that term, though, in most respects, they are essentially different; for, it makes the "other enterprise" similar to both, which can not be unless they are, in that sense, similar to each other. It would be very difficult to formulate a definition of those enterprises or schemes by which prizes are offered dependent upon lot or chance, and which are similar to lotteries and gift concerts, which would embrace these only; and, for the purposes of this opinion, it is not necessary to do so. It suffices to say that an enterprise or scheme by which a person pays for a chance to get something of much greater value, the getting, or failure to get which, depends upon lot or chance, is similar to a lottery, in the sense in which that word is used in this statute.

It

remains to determine whether the scheme developed in these cards is of that description. Is the giving by the company of what is offered, and its receipt, upon the other hand, dependent upon lot or chance?

It is quite safe to assume that the Midland Publishing Company embarks in this business as a business enterprise. and not from philanthropic or charitable motives, and that it expects to receive from the business more than it will be compelled to pay out. How is this to be done? We will take first a single set of ten of these cards:

A person receives one of the cards, which he returns with 20 cents to the company, and receives a set of ten cards which he distributes among ten persons, including, perhaps, himself, and, we will say, all of them are returned with the money to the company, making $2.20. For this the company promises the magazine, price as stated on the cards $2, and $10 in books, or $12 in all. And suppose that each of the others of the ten has also received and distributed his ten cards, which have been likewise returned. Then the company will have received $22 and paid out in prizes or gifts $1,200, and it is obvious that the oftener the holders. of these various cards do as they are requested to do—that is, send in their cards and money-the sooner will the company be bankrupt. And it is equally obvious that the making of any money by the company, or, even avoiding bankruptcy, if the business continues, depends upon the chance that, in by far the most of the cases, all of the set of ten cards will not be thus returned, and the company will then get, without any equivalent or return, the money that is sent. And in every case, every dollar that the company makes, over what it pays out in prizes, is that which it receives where the whole set of cards has not been thus returned, and for which it renders no equivalent whatever to those who paid it. Like other lotteries, this is the price. paid for blanks. And equally obvious it is that, in order to any profit, the number of these blanks must exceed the number of the prizes in a greater proportion than that in which the value of each prize, $12, exceeds the $2.20 paid for it. And all this-whether any or all these cards are

thus returned, depends not at all upon any act, volition, or control of the company, but upon matters entirely outside and over which it has no control. It would seem difficult to imagine a case where the payment of what is thus conditionally promised, depended more upon chance than this.

So much for the company. How is it with those who receive the cards and return them with the money? Each of these is entitled to the magazine and the $10 worth of books, dependent upon the chance that all the other nine also return their cards and money. Here, too, whether they do this or not, is quite beyond any act, volition, or control of any one of them. Whether any particular one will do this depends upon himself and not upon chance, for he can determine it. But not so as to the others. Their action may be affected by an infinity of considerations or accidents which he can neither forecast nor control; and it is much as if the same thing were promised upon the same consideration, if the recipient of the card should predict correctly what the weather will be at a particular hour of a day in the distant future. One would depend about as much upon chance as the other. Strictly speaking, there is probably no such thing as chance; and all things occur by cause and arrangement, and if we knew all the causes and influences operating in every direction, and their extent and effect, we could correctly forecast the result of everything terrestrial. But, since we can not do this, we call by the name of "chance" things we can neither forecast nor control, and which, as far as we can see, may or may not happen. The section under consideration recognizes such a thing as chance, and, I think, in some such sense as this. For, in view of the manifest purpose of this section, it would seem difficult to avoid some such meaning.

With some such meaning as this it is manifest that, as respects both the company issuing these cards and their recipients, whether the prizes or gifts offered shall be delivered or received, depends entirely upon whether, in each set or series of ten cards, all are returned to the company with the money, and that this is depending upon chance within the meaning of the statute.

But this is not all. The section makes unmailable the same kind of matter "concerning schemes devised for the purpose of obtaining money or property under false pretenses."

The scheme developed by these cards is one offering a $2 magazine and $10 worth of books to every one who will purchase for 20 cents ten cards, each of which is returned with 20 cents, making, at the outside, and as I construe the card, $2.20. Each of the same ten persons also receives a similar card offering him a similar $12 prize for the same sum, $2.20. And the cards are furnished for such distribution and are distributed for the ostensible purpose of inducing each recipient to return the card and money and get the prize; and each is told that if he and the other ten will do so he will get a $12 prize, for which the company will receive $2.20.

This is a fraud and a false pretense upon its face. For it is apparent that, if all, or even a considerable part, were to do as requested--that is, if the other parties to the contract perform their parts-the company can not and will not perform on its part. A promise which, if accepted and performed by the promisee according to its terms, is one which the promisor knows he can not, and will not, in that case, perform, and does not intend to, is a fraud and false pretense. This case is of that character. For it is evident that if the persons to whom these cards are sent, perform their part, as requested, the company can not and will not perform on its part, and never intended to perform in that contingency.

I have therefore to advise you that, upon each of the grounds I have stated, the case you present comes within the prohibition of the statute referred to.

Respectfully,

The POSTMASTER-GENERAL.

JOHN W. GRIGGS.

LOTTERY-GUESSING CONTESTS.

It is not offering a prize "dependent upon lot or chance," within the meaning of section 3894, Revised Statutes, as amended by the act of September 19, 1890 (26 Stat, 465), for a corporation to issue and sell shares of stock, agreeing that one-half of the purchase money shall be divided into prizes of different amounts and distributed among the purchasers of the stock whose guesses as to the majority that will be received by either Presidential nominee shall be nearest correct.

DEPARTMENT OF JUSTICE,

September 4, 1900.

SIR: I have the honor to acknowledge the receipt of your letter of October 2, 1899, in which you request an opinion as to whether a certain scheme, which is outlined in your letter, is a violation of the lottery law. The scheme as stated in your letter is as follows:

"A corporation proposes to issue stock in shares of the face value of $10 each. Fifty per cent of the purchase money is to be divided into prizes of different amounts, to be distributed among the various purchasers of stock whose guesses as to the majority that will be received by either the Republican or Democratic nominee at the next Presidential election, shall be nearest correct."

You refer to the opinion heretofore given by AttorneyGeneral Miller in a similar case, dated October 31, 1890 (19 Opin., 679), in which the Cincinnati Enquirer offered to give certain prizes to those who sent the most correct estimate as to the majority which either the Democratic or the Republican candidate for the office of secretary of state for the State of Ohio would receive at the next succeeding election, and you ask whether, in consideration of the vicious tendencies of the present scheme, and its evident preparation for the purpose of practically evading the lottery law, it may not be distinguished from the principle laid down by the Attorney-General in the case of the Cincinnati Enquirer.”

So far as the legal question is concerned, as to whether either scheme is a violation of the lottery law, it is difficult to distinguish in principle between the guessing contest of the Cincinnati Enquirer and the guessing contest now pro