Honorable John R. Shook                   Opinion No. O-3990
Criminal District Attorney
San Antonio, Texas                        Re:   Whether or not certificate    scheme
                                                of newspaper is a lottery,    and re-
Dear   Sir:                                     lated questions.

                     Your request for an opinion of this department        has been
received      and considered.  We quote from your request:

                     “We enclose herewith certain copies of issues
           of the San Antonio Light and it is our information    that
           the scheme complained    of is substantially as follows:

                       “This newspaper has undertaken to distribute,
           through its agents, certain certificates,    gratis, to any
           and all persons desiring same, whethe,r they be sub+
           scribers    of such newspaper   or not, a facsimile  of which
           certificate   appears upon page 4-A of the edition of Sep-
           tember 5, 1941, enclosed herewith.       A drawing is held
           every day and, if the number of the holder of acertifi-
           cate is drawn in such drawing, upon proper presentation
           of such certificate,   such holder is entitled to receive a
           prize.    The method is fully explained in the enclosed
           newspaper.

                     “Under the above facts, would the president,,
           general manager,    circulation manager and other em-
           ployees and agents of such newspaper be guilty of a vio-
           lation of Article 654 of the Penal Code of the State of
           Texas ?



                      “It is OUF information   that the parties making
           this inquiry are also desirous of ascertaining      whether
           or not an injunction suit will lie to restrain the opera-
           tion of this enterprise,   and if so, in whose name and by
           whom such injunction suit shall be brought and main:-
           tained.
Hon. John R. Shook,    Page 2 (o-3990)




                   “It is our information   that the publisher   of this
       newspaper      is a private corporatfon.    * * * .

                  ” * * *:, Under the above statement of facts,
       will an action by quo warrant0 or injunction lie in be-
       half of the State on relation of the Attorney General
       against a private corporation    violating the provisions
       of Section 4’7. Article 3 of the Constitution of Texas. or
       particle 654, Penal Code of Texas?”

                  As a supplement to the facts     submitted in your inquiry.
,we desire to quote from one of the newspaper       exhibits which you have en-
 closed.  Said exhibits show the following:

                   “DO YOU HOLD A WINNING          NUMBER?

                       $2400.00    CASH GIVEN    AWAY!

        “Look at the number on your certificate  and,check it with
        the comic on this page bearing ,the same name.    If you hold
        one of these winning numbers. bring it within two days to
        the San Antonio Light and receive your Golden Opportunity
        cash award.

                              y$25.00   FIRST PRIZE
                               $75.00   IN ADDITIONAL     CASH PRIZES

        “If you do not hold a winning number today--KEEP     YOUR
        CERTIFICATE      as it may be a winner another day.’

                       “100.00    CASH PRIZES     DAILY    ~”

                        FOR      THE NEXT   23 WEEK     DAYS!




                   “HOWE TO’WIN

        “Each week day until $2400.00,in    cash has been given
        away, 39 number’s will be printed above six comics that
        appear in The San Antonio Light daily.    Compare num-
        ber of your Certificate  with those that are published
        daily in The Light and,posted at the following places:
        The display window of The San Antonio Light, Broadway
        and Fifth Street, and all suburban theatres.   YOU May
        Win Any Day. Save Your Certificate.
Hon. John R. Shook, Page       3 (O-3990),




                   “READ    THE RULES

          YTo win, the number of your Golden Opportunity      Certi;
         ficate must be printed above the corresponding     comic
         in The San Antonio ,Light. Holders of winning Certifi-
         cates must present ,the certificate .to The San Antonio
         Light, Broadway at Fifth Street, no later thazitwo da,ys
         after the number has been published.      Prize awards
         will be made between the hours of 8:3,0 a,m. and 4 p.m.
                                                ,’
                   “SPECIAL   NOTICE                                            ,.,

         UIt is not necessary   to be a regular reader of The San
         Antonio Light to participate in the awards.     Copies of
         The Lights may be seen without charge at the San An-
         tonio Light office.   Winning numbers will be posted’in
         the lobby of thenfollowing theaters:    Br,oadway Theater,            ~’
         Uptown Theater, Harlandale      Theater, Highland Park                  ”
         Theater.   ,First winning numbers will be published daily
         on the Comic page of The Light beginning Friday, Sep-
         tember 5, 1941, and until further notice.

                   ~UIMPORTANT       TO REMEMBER

         “All Golden Opportunity Certificates are labeled with
         one of six comics., namely, BRINGING UP FATHER,
         ~THE NEBBS. TILLIE THE TOILER,       SNUFFY SMITH.
         BLONDIE,    SKIPPY 0

          “Winning numbers will appear above these comics be-
          ginning Fiiday, September ,5. To win a cash pr.ize, the
          certificate you hold must bear the name of one of the
          above comics and have the same number that appears
         ,above that particular comic.”

                   Section47    of Article   III of our Texas   Constitution    pro-
vides:

                   “The Legislature    shall pass laws prohibiting the
         establishment   of lotteries and gift enterprises    in this estate,
         as well as the’sale of tickets in lotteries.   gift enterprises,
         or other evrtsions involving the lottery principle, estab-
         lished or existing in other States.”

                   Pursuant to the mandate of the Constitution our Legisla-
ture enacted   Article  654 of the Penal Code of the State of Texas, which
provides:
Hon. John R. Shook, Page 4 (O-3990)



                   “If any person shall establish a lottery or dis-
        pose of any estate, real or personal,    by lottery, he shall
        be fined not less than one hundred nor more than one
        thousand dollars;    or if any person shall sell, offer for
        sale or keep for sale any ticket or part ticket in any lot-
        tery, he shall be ffned not less than ten nor more than
        fifty dollars.‘”

                 Our Texas Supreme Court has held in the City of Wink
vs. Griffith Amusement   Co.., 100 S.W. (2d) 695, that Article 654 of the
Penal Code, supra, applies only to lotteries and does not include “gift
enterprises’” and @other evasions involving the lottery principle.”

                  It may be generally   said that our Texas Courts, both
Civil and Criminal,   have clearly laid down the principles     of a lottery to
be: (1) a prize or prizes;    (2) the award of distribution   of the prize or
prizes by chance; (3) the,, payment’either   directly or indirectly by the par-
ticipants of a consideration  for the right or privilege   of participating,
See City of Wink vs. Griffith Amusement      Co,, supra; Cole vs. State, (Ct.
Cr~im.App.) 112 S.W. (2d) 725; Smith vs. State, (Ct. Grim. App.) 127 SW.
(2d) 297; Featherston   vs. Independent Station or Association,      (Ct. Civ.
App.) 10 SW. (2d) 124.

                That the first two enumerated elements are present in the
plan or scheme submitted by you could not be se~riously questioned.   We
now proceed to discuss whether the third element of consideration   is pres-
ent.

                  In considering whether a plan or scheme is a lottery the
court “will inquire not into the name, but into the game, however skill-
fully disguised, in order to ascertain  if it is prohibited or if it has the
element of chance.”    Cole vs. State, supra.

                     Looking to the very nature of the plan or scheme under
 cons~iderationitpnrat     be obvious that the real purpose~of the plan is to in-
crease    or aid the newspaper’s     business by the distribution      of prizes in
 money, by chance, and to induce persons to purchase or subscribe               to the
newspaper,     the inducement of a prize to c~ertain lucky holders of certifi-
cates being predominant.        We think it could easily be said that such a plan
would inure to the benefit and advantage of the newspaper in several ways.
 It is well known that a newspaper’s        scope ‘is gauged by its circulation     more
 than any other single factor.      Its effectiveness   and desirability   as a medium
,of advertising,   from which it derives its principal income. depends prin-
 cipally upon its circulation.     No doubt the plan would create and stimulate
‘considerable    good will for the newspaper in the eyes of many people who
would be more impressed         with the opportunity of winning a cash prize
 through chance and the generosity        of the management than the news con-
 tent of the newspaper.      As was said by Judge Graves in the case of Cole
Hon.   John R. Shook,    Page 5 (O-3990),




vs. State, supra;~on motion for rehearing,            ,‘after all it is but a scheme in
our judgment, for the purpose of distributing prizes by,chance.’                    Our opin-
ion, concerning     theneffect, and design of the planor           scheme under c,onsid-
eration, is well expressed         in the words of Judge Lattimoie:in           Cole vs.
 State, supra, quoting,withapproval           from State vs. Dans, 140 Wash. 546,
where he said:      QIanifestly,      it was the plan~and purpose of the appellants
to get additional money by ,putting on the chance #drawing.”                     ‘~
                                 ,.,
                     Insofar ,as~ the plan or scheme is concerned we think it is
im~material that some persons might possibly receive .a prize without buy-
,ing a paper or being,a subscriber.            City of Wink vs. Griffith ‘Amusement
 Co.,, supra; Cole ,vs. State, supra.         Those putting on the plan; or using and
promoting the scheme, under the facts submitted, would doubtless be op-
erating a lottery regardless         of whether some of ‘the certificates’or          chances
were obtained by persons who in fact obtained them without giving a di-
 rect or~indirect consideration.          Purchases     ‘or, subscribers   to the paper
would ce’rtainly be considered          to have paid at least an indirect considera-
 tion for the privilege    of participating      in the lottery.     See City of Wink vs.
 Griffith Amusement       Co.;,supra;     Colevs.    State, hupra.      We think this means
 of a free distr’ibution is obviously designed as -an evasion ore attempted eva-
 sion of the lottery laws and is ~more theoretical             than real.   To hold other-
wise would,. in our opinion, make a mockery of our lottery laws and sanc-
 tion the opera,tion of lottery by the mere imposition              of an artifice in the
 nature of a fictional technicality        in thelaw which; is contrary to the spirit
 of Article III. Section 47 of the Texas Constitutiori.

                  From what we have said, it follows, that w.e find all of
the elements   of a lottery exist in the newspaper plan or scheme, submitted
in your request.    Y~ou are, therefore, advised that in our opinion the plan
or scheme ~of, the, San,:Antonio Light newspaper,    is a lottery and is prohib-
ited by Article III, Section 47 of the Constitution,and    Article 654 of the Penal
Code of the State of Texas.

                   owe find no,provision   made in Article    654,of the Penal Code:
 of.the State of Texas, nor any statute that i,s applicable,    whioh provides for,
 the prosecution   and punishments of a corporation    for operating a lottery.
 We think the rule is applicable to the corporation      that has been laid down
 by the Court of Criminal Appeals in Judge Lynch International Book & Pub-
 lishing Company vs. State, 84 Tex, Grim. R. 445, 208,S.W.          526, where it
:was said: .”And we call attention to the fact that Section 6 of the Act * * *,
 which is the one containing the penalty clause, only mentions, ‘any ~person’
 as punishable and thus. in a criminal statute and prosecuti’on,        must be a
 natural :person and omits reference     to any firm or corporation,      * *,*.,”
                                             ;
                    With refer’ence to the criminal liability of the officers and
 agents of the corporation,    under the facets submitted by yaw, for viohthzg
 Article  654 of the. Penal Code of Texas2 we desire ,to quote from 19 Corpus
  Juris Secundum, Section 931, Pages 363-364,       which reads:
Hon.   John R. Shook,     Page 6 (o-3990)




                      “Officers,   directors, or agents of a corporation
           participating   in a violation of law in the conduct of the
           company’s ,business may be held criminally        liable Indi-
           vidually therefor.     So, although they are ordinarily not
           c:riminally liable for corporate acts performed       by other
           officers or agents, and at least where the crime charged
           involves guilty knowledge or criminal intent, it is essen-
           tial to criminal   liability on his part that he actually and
           personally    do the acts which constitute the offense or that
           they be done by his direction or permission.        He is liable
           where his scienter or authority is established,       or where
           be is the act&l present and efficient actor,       * * *.”

See also    13 American     Jurisprudence,   Pages   1027-1030,   inclusive.

                    In this same connection we quote from         12 Texas     Juris-
prudence,     Page 279, which reads, in part, as follows:

                      “An illegal act cannot be justified by an order
           from   superior authority no matter how high the source
           from which it emanates.      The fact that a person acts as
           agent for another or in obedience to orders of his em-
           ployer in committing    an offense is no excuse, where he
           has knowledge of the principle or employer’s      criminal
           intent and the fact that one who aids or assists    another
           in those things which make out guilt under the law does
           so for accommodation      or for pay does not render him
           guiltless.   * * *.”

                   We are, therefore,   of the opinion that in order for the of-
ficers or agents of the corporation    to be liable to prosecution   under Ar-
ticle 654, supra, for operating a lottery, it must be shown that said offi-
cer or agent has personally    participated with the corporation    in the es-
tablishment   of the lottery or that such acts were done by and through such
officer or agent’s direction or permission.      This would clearly involve
facts which are not before us and we cannot, for that reason, answer your
first question specifically.

                   Since we have held that the plan or scheme under consid-
eration is a lottery then it follows that it can be abated and enjoined as a
nuisance by an injunction suit instituted under and authorized by Articles
4664-4667,   inclusive,  of Vernon’s   Civil Statutes of Texas.   The State vs.
Robb & Rowley United, (Civ.App.)       118 S.W. (2d) 917; Robb & Rowley United,
Inc., et al vs. State, (Civ.App.)   127 S.W. 221; Aetna Club, et al vs. State,
(Sup.Ct.) 199 S.W. 1090; also our Opinion No. O-2286.        Under the above
cited statutes and authorities,   suit may be instituted in behalf of the State
by either the Attorney General, or the District or County Attorney.         In
Featherstone    vs. Independent Service Station Association,     Inc., supra, it
was held that a merchant who was injured by the action of his competitors
Hon. John R. Shook,        Page 7 (o-3990)                       ,,,




in conducting a lottery in,vi.olation of Article 654, supra, could maintain
an action in .a court of ,equity,and have the. operation of, such lottery en-
joined.  Your second questiorris     answered   accordingly.

                       We now consider    your third or last question.
                                                           .,
                     Article  iVi Section~22 of the Texas Constitution,     pro-
vides:                  ,,        ..:,   :,   .~
 ,,~     !,,.                                                      ,.   I
                      “The Attorney GeneraJ * * .* shall represent,       :, :
          the State in all suits and pleas in the: Supreme Court _~ .,
          .of the’Stam in: which the State, may be a.party, land.,. :
       : sha,lZ especially~,inquir.e   into the charter   rights of all
          pri?te    corporations,, land. from time~.to times. in the
          name of the State, take such action in the c’ourtsas
           may be proper and necessary         to prevent any private
         corporation from exercising .any power 4: * * not au-
          thorized by law. He shall, whenever sufficient cause
          exists, seek a judicial forfeiture      of such charters,   un-
           less otherwise expressly      directed by law, * * 4.”

                  Pursuant to the above quoted constitutional  provision,
the Legislature  enacted the quo warrant0  statutes, being Title 111 of Yer-
non’s Civil Statutes of Texas.

                        In the City of Wink vs. Griffith Amusement        Co.,   supra,
Judge Cureton         said, with reference  to the City of Wink:

                     “It cannot maintain its cross-action      or suit
           for injunction for two reasons;    first. because..the  or-
           dinance which it seeks to enforce by injunctive relief
           is void; and, second, because the right to enjoin a cor-
           poration for violating the public policy of the State as
           an abuse of its corporate franchise has not been con-.
           fided to the plaintiff in error, but to the Attorney Gen-
           eral.   Constitution.  Article  IV, Section 22.”

                       A corporation  may in the course of ,maintaining          a nuisance
likewise    violate    its charter.  Aetna Club, eta1 vs. State, supra.

                    We quote from        State vs. Wailer.   (Civ.App.)   211 S.W.    322,
(writ of error    dismissed):

                       “It is settle,d in Texas that under the provisions
           .of the quo warrant0 statutes, (Revised Statutes of 1911.
           Article   6398) that a proceeding to forfeit the charter of a
            corporation    can only be instituted by the Attorney General
            of the State, and that the attempt to confer such power on
            the District or County Attorney is in violation of Article IV.
                                                                                           m’
                                                                                            ..
                                                                                                 .




Hon. John R. Shook,      Page 8 (,O-3990)



         ‘Set, 22.of.the Constitution. State vs. Railway, 89 Tex.
           562, 35 S.W. 1067; Brady vs. Urooks, 99 Tex. 379, 89
          S.W. 1052; Oriental Oil Co, vs. State, 135 S.W. 722.
           0 * ***

                  We have held that the corporation     is, in our opinion, con-
ducting a lottery which is condemned by the Constitution of this State and
therefore contrary to public policy.    It fOllOW6, therefore,   that an injunc-
tion suit could be maintained by the Attorney General against said cor-
poration to -enjoin it from violating the public policy of the State as an abuse
of its corporate franchise.   City of Wink vs. Griffith Amusement       Co., supra.
We are also of the opinion that, under the facts submitted by you, a quo
warranto proceeding will lie in behalf of the State on relation of the Attor-
ney General against said corporation.      Your third, and last question is an-
swered accordingly.

                   We trust that we have fully answered             the questions   sub-
mitted   in your inquiry.

                                            Yours      very truly

                                            ATTORNEY         GENERAL      OF TEXAS



                                            By   /s/    Harold   McCracken
                                                        Harold   McCracken
APPROVED       OCT 4, 1941                                        Assistant

/s/   Gerald   C. Mann

ATTORNEY       GENERAL      OF TEXAS

HM:RS/cm                                                             APPROVED
                                                                       Opinion
                                                                      Committee

                                                                    By/s/  BW B
                                                                      ~hazrman
