author: Speak, J.

text:
    Stevens v. The Cincinnati Times-Star Company. Stevens v. The Commercial-Tribune Company. Stevens v. The Enquirer Company.

      •Guessing contest instituted by newspaper company — Persons to pay fifty cents to company, twenty-four for subscription and twenty-six for privilege of guessing — On total vote for state officer to be elected — Guesser nearest actual vote to receive prize money — Is within the condemnation of Ohio statutes against lotteries — Guesser has no standing in equity court — - To maintain action for injunction and receiver — One cannot sue for all, when — Jurisdiction of superior court — Games of chance — Equitable procedure.

    1. A guessing contest, instituted by a newspaper company, by wbicb persons are invited to deliver to the company fifty cents each, twenty-four cents of which being payment for a subscription to the newspaper and twenty-six cents for the privilege of making a guess upon the total vote for a state officer who is to be chosen at an approaching election, the guesser coming nearest to the actual total vote cast to receive a money prize from the fund equal to one-tenth thereof, and others next nearest to receive from the fund lesser money prizes, is within the condemnation of the statutes of Ohio against lotteries and schemes of chance, and is an unlawful enterprise. And a similar scheme, involving the same amount of payment by each person, but differing from the former in that there is to be no subscription to a paper, and the prizes promised are definite amounts from five thousand dollars, down to two dollars, is equally within the condemnation of the statute and unlawful.
    2. One who delivers fifty cents to the company under and by virtue of the foregoing scheme has no standing in a court of equity to maintain an action for injunction and a receiver on the claim that the money paid by himself and other contributors, amounting to $200,000.00 or over, constitutes a fund which equitably belongs to all who have made guesses and paid money; that such persons are numerous; that tlieir names are unknown to him, and that it is impracticable to bring them before the court. A petition setting forth these . facts is insufficient to constitute a cause of action in equity, and, the superior court not having jurisdiction at law in actions to recover the sum of fifty cents, it was not error to sustain a general demurrer to such pleading, and dismiss the plaintiffs action.
    (Nos. 8578, 8577 and 8579
    Decided March 21, 1905.)
    Error to the Superior Court of Cincinnati.
    Plaintiff’s actions below against these several defendants were begun in the superior court of Cincinnati, October 20, 1902. The petition in the first case named is as follows:
    “The plaintiff, Samuel A. Stevens, brings this action on behalf and for the benefit of himself and all others similarly situated and interested.
    “Plaintiff says that the defendant is a corporation organized and transacting business under the laws of the state of Ohio.
    “Plaintiff alleges that he delivered to the defendant company the sum of fifty (50) cents, upon a gaming and lottery contract under and pursuant to the terms of which contract, sums of money, uncertain in amounts, are offered as prizes, conditional and wholly dependent upon the happening of the uncertain event that the persons making the first, second, third and other nearest correct guess or guesses of the exact total vote cast for secretary of state of Ohio, at the November election, 1902, shall be entitled to receive said first, second, third and other prizes; that under the terms of said contract all persons making a guess were required to deposit with said defendant the sum of fifty (50) cents; that twenty-four (24) cents of said sum is retained by said defendant as the price of subscription to a newspaper belonging to said defendant; that the remaining twenty-six (26) cents of said sum is deposited with the sum to be paid out in prizes, as aforesaid; that under the terms of said contract, the person making the nearest guess, as aforesaid, shall receive one-tenth (1-10) of said prize fund deposited as aforesaid; to the second nearest, one-twentieth (1-20) of said fund as aforesaid; to the third nearest as aforesaid, one-fortieth (1-40) of said fund; to the fourth and fifth nearest each one-eightieth (1-80) of said fund as aforesaid; to the one hundred next nearest one-fifth (1-5) of said sum as aforesaid; the same being divided equally between said one hundred next nearest; to the two hundred next nearest one-fifth (1-5) of said sum, the same to be divided equally; to the four hundred next nearest, one-fifth (1-5) of said sum, the same to be divided equally; to the one thousand next nearest one-fifth (1-5) of said sum, the same to be divided equally.
    ‘ ‘ That under the terms of said contract there were offered in all one thousand seven hundred and five prizes; that the amount of said prizes is conditional upon the happening of the uncertain event, to-wit, the number of persons who may make a guess; that all and each of said prizes offered, as aforesaid, is conditional and wholly dependent upon the uncertain event that the guess of plaintiff or some other persons who has paid defendant money and made a guess in whose behalf and for whose benefit the plaintiff prosecutes this suit, is nearer the exact total number of votes cast, as aforesaid, than the guesses of other- persons who have likewise entered into said gaming contract with defendant.
    “Plaintiff alleges that the defendant company received said sum of fifty (50) cents from plaintiff to the plaintiff’s use, and that there is now due the plaintiff from defendant the sum of fifty (50) cents.
    “Plaintiff further alleges that he is one of a large number of persons who have delivered money to the defendant under the terms and conditions of said gaming and lottery contract, and that all of said persons have delivered money to said defendant under the same terms and conditions under which plaintiff delivered said sum of fifty (50) cents to said defendant; that each and all of said persons and plaintiff have a general interest in and common right to the money or fund thereby accumulated in the hands of the defendant company; that said defendant company, in pursuance of said gaming and lottery contract, has accumulated a large fund of money amounting to about $200,000 or more, that said fund is composed entirely of payments and contributions by the plaintiff and all the other' persons in whose behalf this suit is prosecuted; that said fund equitably belongs to all said persons who have made guesses and paid money to the defendant under said gaming contract; that the persons who have made said guesses and entered into said contract with the defendant are very numerous, and their names are unknown to plaintiff, and it is impracticable to bring them before the court.
    “Plaintiff alleges thát the defendant, unless enjoined from so doing, will dissipate said fund by distributing the same as prizes, and to pay the expenses of continuing of said unlawful contest or otherwise, and that said fund will be wholly lost to this plaintiff and the class represented by him, and for whose benefit he sues, which will cause to them and each of them, irreparable loss and damages and occasion a multiplicity of lawsuits, and the plaintiff and each of said persons interested in said funds as aforesaid, are without adequate remedy at law.
    “Wherefore plaintiff prays that it be ordered, adjudged and decreed that the plaintiff recover from the defendant the sum of-fifty (50) cents; that each member of the class on whose behalf this action is prosecuted, recover from the defendant the amount paid to said defendant; that the defendant be declared a trustee of the fund hereinbefore mentioned, and be enjoined from dissipating it by distributing it as prizes, and by way of expenses or otherwise; that a full and complete accounting of said fund be ordered; that a receiver be appointed to take possession of said fund; that a referee be appointed to determine the names of the aforementioned class, and the amount paid defendant by each, and for such other and further relief as this court may. deem proper. ’ ’
    That against the Commercial-Tribune differs from the other in the allegation respecting the' subscription and the event on which the prizes are tó be paid, the amounts thereof, and the source from which payments are to be made. The uncertain event is the total vote to be cast for the secretary of state of Indiana at the election November 4, 1902, and the prize alleged to be promised to be given to the one coming nearest a correct guess of the total vote the sum of five thousand dollars, and others in the order of nearness down to two dollars, there being offered in all fourteen hundred and ninety prizes, all to be paid from the Company’s own funds.
    The uncertain event named in the petition against the Enquirer Company is the total vote cast for the secretary of state of Ohio at the election November 4, 1902, and there is no allegation respecting a subscription. The one making the nearest a correct guess of the total vote to be awarded twelve thousand dollars, and others in the order of nearness down to five dollars, there being offered in all four thousand and eighty-seven prizes; these also to be paid from the Company’s funds.
    To these several petitions demurrers were filed, of which the following is a copy:
    “The defendant demurs to the petition for that: 1. The court has no jurisdiction of the subject of the action. 2. The petition does not state facts sufficient to constitute a cause of action.”
    With the petitions there were also filed motions for the appointment of a receiver and a referee.
    Upon hearing the motions were overruled and the demurrers sustained. Thereupon, the plaintiff not desiring to further plead, the petitions were severally dismissed and judgment entered- for defendant. Error being prosecuted to the general term of the superior court the judgments of the special term were affirmed. The plaintiff brings error.

      Mr. J. P. Bradbury and Mr. E. D. Davis, attorneys for plaintiff in error.
    Sections 6929, 6930 and 6931, Revised Statutes, and others relating to lotteries and gaming sufficiently show how dangerous in the eyes of the law are all lottery schemes. Now, what is a lottery?
    A lottery has been defined by: “A scheme for the distribution of prizes by chance.” Bouvier’s Law Dict.; Bell v. State, 5 Sneed (Tenn.), 507; Winfield’s Adjudged Words and Phrases.

      It makes no difference that the ticket is procured by the purchase of goods. Lohman v. State, 81 Ind., 15; State v. Mumford, 73 Mo., 647; United States v. Olney, 1 Abb., 275; Hudelson v. State, 94 Ind., 426.
    The term lottery has no technical meaning in the law distinct from its popular significance. Wilkinson v. Gill, 74 N. Y., 63; United States v. Wallis, 58 Fed. Rep., 942; McDonald v. United States, 63 Fed. Rep., 426; State ex rel. v. Interstate Inv. Co., 64 Ohio St., 283.
    .Where the element 'of certainty goes hand in hand with the element of lot and chance in an enterprise offering prizes the former element does not destroy the existence or effect of the latter. Horner v. United, States, 147 U. S., 449.
    A scheme for the distribution of prizes by chance is a lottery. State v. Mercantile Association, 45 Kan., 351 (11 L. R. A., 430); State v. Boneil, 42 La. Ann., 1110 (10 L. R. A., 60 and note); People v. Elliott, 74 Mich., 264 (3 L. R. A., 403); Ballock v. State, 73 Md., 1 (8 L. R. A., 671); Long v. State, 73 Md., 527 (12 L. R. A., 89, also 12 L. R. A., 426); Lynch v. Rosenthal, 144 Ind., 86 (31 L. R. A., 835); France v. State, 6 Baxt., 478.
    It is not necessary that the lot should he actually cast or drawn by the managers, or that the party paying should personally participate in the drawing. Fleming v. Bills, 3 Ore., 286; Dunn v. People, 40 Ill., 465; Commonwealth v. Sheriff, 10 Phila., 203; Long v. State of Maryland, 12 L. R. A., 426; State ex rel. v. Interstate Co., 64 Ohio St., 283 (52 L. R. A., 550, and note); Barclay v. Pearson, 1893, 2 Chan., 154.

      The great thinker, Herbert Spencer, in his last work entitled “Pacts .and Comment,” page 210, discusses the elements of chance. See the Standard Dictionary on the word “chance.”
    The scheme set forth in the petition is a lottery. Public Clearing House v. Coyne, 194 U. S., 497 (48 Law Ed., 1092); Ellison v. Lavin, N. Y. Ct. App. (August 5, 1904); Opinion of Attorney General of United States relative to lotteries and guessing contests, rendered November 28, 1904; Hobing v. The Enquirer Co., 14 Dec., 704; 2 N. P. N. S., 205.
    If the scheme is illegal, what is the remedy of plaintiff in error and those in like situations as he?
    It will be observed that this suit is brought by Samuel A. Stevens in behalf and for the benefit of all other persons similarly situated and interested. This sort of a suit is authorized by the code of civil procedure; section 5008, Eevised Statutes.
    A suit under this section must be given the same force as if all the persons who had made guesses were actually joined as co-plaintiffs. Unless it be given this construction, the statute has no meaning.
    This statute has been construed by this court to. apply to both legal and equitable causes. Platt, etc. v. Colvin et al., 50 Ohio St., 703.
    The plaintiff in error has a right to bring an action in equity in behalf of himself and all other guessers.
    Where a common fund exists upon which numerous persons have claims, equity will seize hold of it and pay it out ratably upon their respective claims. Queenan v. Palmer, 117 Ill., 619 (7 N. E. Rep., 613).
    Where parties are exceedingly numerous, and it would be impracticable to join them without great delay, and would obstruct and defeat the end of justice, a court of equity will dispense with them. Eller v. Bergling, 3 McAr., 189; Carey v. Hoxey, 11 Ga., 645; Smith v. Rotan, 44 Ill., 506; Ryan v. Lynch, 68 Ill., 160; Hills v. Putman, 152 Mass., 123 (25 N. E. Rep., 40); Boisgerard v. Wall, 1 Smed. & M. Ch., 404; Smith v. Swormstedt, 16 How., 288; West v. Randall, 29 Fed. Cas., 718 (2 Mas., 181); New London Bank v. Lee, 11 Conn., 112 (27 Am. Dec., 713).
    Section 2549, Iowa code, 1873, provides that one may sue for the benefit of the whole where the question is one of a common or general interest, or when the parties are very numerous, and it is impracticable to bring them before the court. Corey v. Sherman, 60 N. W. Rep., 232; Turnpike Co. v. Ballard, 2 Metc., 165; Hendrix v. Money, 1 Bush, 306; Belmont v. Erie Railway Co., 52 Barb., 637; Baldwin v. Hillsborough, 1 Dec. Re., 532; 10 W. L. J., 337; Hill v. Kensington, 1 Pars. Eq. Cas., 501; Lowry v. Francis, 2 Yerg., 534; McCaleb v. Crichfield, 5 Heisk., 288; Pomeroy’s Equity, sec. 268.
    Where many persons claim a fund, if the fund is in court or under the exclusive control of the parties actually before the court, it will he sufficient for any of the parties having a separate claim on the fund to file a hill in behalf of themselves and all' others who may elect to come in under the decree. Hallett v. Hallett, 2 Paige, 15; Comstock v. Rayford, 1 Smed. & M., 423 (40 Am. Dec., 102); Smith v. Schulting, 14 Hun, 52; Edwards v. Sartor, 1 Rich., 266; Cartmell v. McClaren, 12 Heist., 41; Bosher v. Richmond Co., 89 Va., 455 (16 S. E. Rep., 360; 37 Am. St. Rep., 879); Pomeroy’s Equity Jurisprudence, secs. 243-276.

      Equity will raise an implied trust. A guessing contract is invalid..
    Then we have the proposition that all these guessing contracts were and are wholly null and void, having been made in violation of a positive law; and. whatever relation exists between the defendant and these guessers must be a relation existing in law. It must be a resulting relation. Now what is that resulting relation?
    Section 4270 provides the method of recovery from a winner. There is no statute in Ohio providing how money may be recovered from a stakeholder or one in possession of the funds undistributed as in this case, and consequently it must be decided under the principles of the common law.
    Section 4271, Revised Statutes, proceeds upon the theory that the lottery promoter has gotten something that does not belong to him and that, he is in law bound to restore whatever he has. gotten to the person from whom he procured it, and that a recovery can be had at any time, even-after a contract is executed, and in addition thereto, it puts in the hands of the person defrauded a means-of punishing the wrongdoer. If the scheme be illegal, then the defendant has received from each and every one of these guessers something of value-that it was not in law entitled to receive, and which it does not own. If it had no right to receive these-payments and contributions, it certainly had no right to keep them except for the use and benefit of all the persons who have contributed thereto. The defendant has come into the possession of this fund as a result of its own wrong, and it is impressed in equity with a trust for the benefit of all the eontributors thereto, and the contributors are entitled to have this trust carried out. .This is not a suit under the statute, but under the common law. The statute has simply enlarged the remedy, or rather furnished an additional one. In this connection we will also state that the doctrine “In pari delicto potior est conditio defendenüs,” does not apply to these contributors. Equity will execute implied trust. Pomeroy’s Equity Jurisprudence, sec. 1053 et seg.; Story’s Equity, sec. 1255; Beach Modern Equity Jurisprudence, sec. 226; Shaw et al. v. Loan & Trust Co., 8 Dec., 510; 5 N. P., 411.
    When property is wrongfully taken by fraud or through any illegal transaction, a court of equity will intervene, raise a constructive trust by implication, and enforce an equitable lien for the protection of the true owner. American Sugar Refining Co. v. Fancher, 27 L. R. A., 757.
    A person who, from the relation in which he stands to another, is capable of exercising an undue influence over him,, cannot be permitted to derive profit from any transaction with him, and will be held a constructive trustee of any property so acquired.
    In the case at bar we contend that the defendant procured the fund through actual fraud. This will be readily seen when we consider that it is a corporation chartered under the laws of Ohio. That •people at large would presume that whatever business it engaged in would be legal. It is the one who has done the wrong.
    The defendant has received the money wrongfully. Will equity permit it to wrongfully retain it, wrongfully expend it and wrongfully enjoy what does not belong to it.
    The courts of our country for a century and over have answered — No. Angle v. Railway, 151 U. S., 26; Jones v. Van Doren, 130 U. S., 691; Long v. Mulford, 17 Ohio St., 509; Schley v. Dixon, 24 Ga., 279; Coleman v. Coche, 18 Am. Dec., 757; Lewis v. Lewis, 43 Am. Dec., 540; Morris v. Joseph, 91 Am. Dec., 386.
    In the case at bar we contend that the funds in possession of the defendant in error equitably belongs to the guesser and that good conscience and a sound public policy impresses upon it a trust by virtue of which the defendant is trustee de son tort of the funds in its hands.
    Starting with that proposition as a basis, the plaintiff and those whom he represents are entitled to the relief prayed for, unless barred by the doctrine in pari delicto.

    We shall first attempt to show, and we think that we can do so clearly, that the doctrine in pari delicto does not apply, for the reason that the plaintiff and those for whom he sues are not in equal wrong with the defendants, if they be in any wrong. And here we wish to state that even were the plaintiff and those for whom he sues particeps criminis, it would not defeat them in equity. There must be equal guilt, but we shall go farther and maintain that under our laws, in the case at bar, the guessers have been guilty of no wrong, and that they came into equity with clean hands, because they belong to a class that is protected by the statute. Browning v. Morris, 2 Cowp., 790.
    The conducting of lotteries in Ohio is not alone an offense against the statutes, but no law could be enacted which in any way would legalize them. Section 6, article 15, constitution of Ohio.
    It is significant, and we think a controlling fact upon this point that both constitution and statute law aim directly at the lottery promoter, while seeking the protection of those who would be deluded by them.
    Sections 6929, 6930 and 6931, Revised Statutes, “Offenses against Public Policy,” prohibit the operation or promotion of any kind of lotteries, but they do not hint at any penalty against the buyer of lottery tickets, and it is not malum prohibitum even to do so. Section 1920 et seq., provides for the suppression of all houses where lottery is carried on or any lottery tickets sold. No censure is found in any of those statutes upon the unfortunate individual who may be fool enough and guileless enough to part with his money on a lottery ticket.
    Not only does the statute law of Ohio warrant the recovery of the money paid, and in this it is but declaratory of the common law as to unexecuted, contracts, but it has to a certain extent put punishment into the hands of those who have been cheated and defrauded by the promoters of lotteries, if they choose to use that method. The law shows clearly whom it seeks to protect. In the language used of the illustrious Lord Mansfield, “The statute is made to protect the ignorant and deluded multitude, who, in the hopes of gain and prizes, and not conversant in calculations, are drawn in by the office-keepers.. And it is very material that the statute itself by the distinction it makes, has marJced the criminal.”
    It is worthy of note that the editor of the subject, “Illegal Contracts,” in 15 Am. & Eng. Ency. Law (2 ed.), 1004-5, states the modern law to he exactly what Lord Mansfield announced in 1778, and cites abundant authorities to sustain the proposition. Thomas et al. v. Richmond, 12 Wall., 349; Congress Co. v. Knowlton, 103 U. S., 49; Parkersburg v. Brown, 106 U. S., 487; Bank v. Townsend, 139 U. S., 67; Car Co. v. Transportation Co., 65 Fed. Rep., 158; Mason v. McLeod, 57 Kan., 105; Bank v. Burns, 104 Cal., 473; Railroad v. Railroad, 66 N. H., 100 (49 R., 583); Bateman v. Robinson, 12 Neb., 508; Lester v. Bank, 33 Md., 558; Deming v. State, 23 Ind., 416; Tracey v. Talmage, 14 N. Y., 162; Gray v. Roberts, 12 Am. Dec., 383; Mount v. Waite, 7 Johns. Ch., 434; White v. Bank, 22 Pick., 181; Duval v. Wellman, 124 N. Y., 156; Beach Modern Equity, sec. 80.
    The application of this rule has been often made by the court, but in no clearer terms at any time than in the case of Hooker v. DePalos, 28 Ohio St., 251, and in the case of Kahn v. Walton, 46 Ohio St., 195; McCutcheon v. Merz Capsule Co., 71 Fed. Rep., 787.
    Should the court be of the opinion that the scheme is neither a lottery nor a gaming transaction, but that it is detrimental to the public welfare and morality, as tending to disturb the purity of the elections) create profligacy, mendicancy or the habit of gambling, or should the court deem it invalid by reason of public policy on any other ground, then the jurisdiction of a court of equity to interfere and grant relief is clear.
    In this sort of a case it is said that the public are interested in the suppression of these illegal and harmful schemes, and therefore stands in the nature of the real plaintiff, and along with him and the class for whom he sues, asks that the defendant be made to comply with the dictates of equity and good conscience. In such a case, relief is granted in order to prevent the threatened mischief, and to deter others from committing a like offense, and in that way protect the public at large. Story Equity Jurisprudence, sec. 298; Pomeroy Equity Jurisprudence, sec. 941; Goshen Township v. Shoemaker, 12 Ohio St., 624; Bellamy v. Burrow, Cas. t. Tal., 97; Purdy v. Stacy, 5 Burr., 26, 98; Harrington v. du Chatel, 1 Bro. C. C., 124; Gorforth v. Fearon, 1 H. Bl., 327; Hartzwell v. Hartzwell, 14 Vez., 811; Vauxhall, B. C. v. Earl Spencer, 2 Madd., 356; Woodhouse v. Meredith, 1 J. & W., 224; Law v. Law, 3 P. Wins., 393.
    If the transaction set forth in the petition be void on the ground of public policy as being vicious and immoral, or as tending to disturb the purity of elections, then the question of particeps criminis or pari delicto does not cut any figure. Accordingly in the case of Osborne v. Williams, 18 Ves., 382, and in other cases, cited below, the party illegally obtaining a benefit has been decreed to refund. In case of relief, upon grounds of public policy, the objection that a party does not deserve the relief, as being particeps criminis or in pari delicto never prevails; the public interest requiring that relief should be given, it is accordingly given to the public through that party. Hatch v. Hatch, 9 Ves., 298; Shirley v. Martin, cited; Roche v. O’Brien, 1 Ba. & Be., 358; Lord St. John v. Lady, 11 Ves., 536; Neville v. Wilkinson, 1 Bro. C. C., 543, on page 447 and cases cited; see also note of editor, 1st Am. ed.

      ’ The scope of the petition is broad enough to admit of this relief, and it could be granted under the prayer for general relief. But it would be unnecessary to grant it under the general relief clause as an injunction is specifically prayed for.

      Mr. Thornton M. Hinkle and Mr. Frederick W. Hinkle, for the Times-Star.
    The scheme was not a lottery. The plaintiff’s-brief prints certain definitions of the word lottery. These and all others from whatever source gathered, including those in 14 Am. & Eng. Ency. Law, and Horner v. United States, 147 U. S., 458, point only to a plan in which one risks a small sum in the hope of gaining a greater, the winner to be determined “by lot or chance.” The etymology of “lottery,” the word used in the statutes, requires such a definition. The schemes prohibited by law are those dependent purely on absolute chance, into which no-element of calculation or study enters. Fleming v. Bills, 3 Ore., 286; Caminada v. Hutton, 17 Cox C. C., 307; Dunham v. St. Croix Soap Co., 34 N. B., 243; Stoddart v. Sager, 2 Q. B. Div. (1895), 474; Hall v. Cox, 1 Q. B. (1899), 198; People v. Elliott, 74 v. Dodds, 4 Ont., 390; Regina v. Jameson, 7 Ont., 149.
    The sole case apparently holding to the contrary is Hudelson v. State, 94 Ind., 426, but that was a criminal prosecution under statutes, which prohibited not only a lottery or scheme of chance, bpt also-“gift enterprises.” It involved a guess as to the number of beans in a jar, and the problem was found to be one whose solution depended upon pure-chance.

      Here the questions involved the interest taken in the campaign, the vigor of its prosecution, the results of previous elections, the conditions of the weather, state of the public health, and many other considerations were involved in making an estimate, and made the contest not one of pure chance, but of judgment. Recent cases have enforced these considerations. Quatsoe v. Eggleston, 71 Pac. Rep. (Ore.), 66; United States v. Rosenblum, 121 Fed. Rep. (N. Y.), 180.
    Baron Pollock in Stoddard v. Sager, 2 Q. B. Div. (1895), 474, considers similar plans, and in strong, terse language demonstrates that they are neither bets nor lotteries, quoting with approval Caminada v. Hulton, supra.

    The petition charges no acts of fraud nor undue influence, no intention to keep the money and not pay the prizes promised; on the contrary it charges that unless enjoined the defendant will pay the prizes. But not so mild is the brief.
    The brief, assuming, without so charging anywhere, that defendant intends to “keep the money” from the guessers, to whom alone it belongs.
    This is determining “the liabilities of parties according to individual notions of personal duty,” but it lacks “the intellectual repose” (Shinkle v. Birney, 68 Ohio St., 337) which one may sometimes enjoy when so engaged, and irresistibly carries us from the realm of law into that of fiction.
    The brief of plaintiff argues that although the contract is wholly null and void because made in violation of a positive law, nevertheless it created a relation between the defendant and the guessers, and required the fund to be applied to the use and benefit of all of them. It thus builds up a theory that equity will raise au implied trust in favor of those who not being under any disability, not misled by any fraud or misrepresentation, entered into a contract with one who holds to them no relation of trust or confidence and where they do not allege or show their subsequent discovery of any facts unknown to them at its date, which make the contract illegal.
    Later it contends that the doctrine of pari delicto does not apply, because the “guessers are not in equal wrong with the defendants, if they be in any wrong;” that the doctrine of particeps criminis “would not defeat them in equity,” and insists that they have been guilty of no wrong “and come into equity with clean hands, because they belong to a class that is protected by the statute, ’ ’ without stating which statute.
    It contends later that although the court may conclude that the plan attacked is neither a lottery or a gaming transaction, but is in some way detrimental to the public welfare and morality, or invalid “by reason of public policy or any other ground,” that then the right to relief is clear, that the public is the real plaintiff, and the relief granted for its protection.
    In support of these vague and general suggestions the brief cites a number of cases and text books, to whose real doctrine we take no exception.
    Some of them are cited and considered in St. Louis Railroad v. Terre Haute Railroad, 145 U. S., 393. The implied trust arises only where one by fraud, duress or oppression takes advantage of the others’ weakness, necessities or ignorance, and where the less guilty party is granted relief, because he was the less guilty, and public policy would not thereby be infringed.
    Nor do Beach, Pomeroy, Story and the cases cited in the brief support its statement that “in modern times equity has taken an advanced step in protecting the public good,” and will grant relief to one in pari delicto, in order thus to serve the public interest. Pomeroy (sec. 941, note) points out that such relief is limited to the classes of cases described in Railroad v. Railroad, 145 U. S., 406; Goshen v. Railway, 12 Ohio St., 624.
    But even in such cases the court finds that plaintiff’s laches or acquiescence will preclude him from relief.
    The plan could not affect the purity of the election. It exercised no influence for or against any candidate, or any party, and could lead to no change of vote from one to the other. It called for an estimate not for the vote of any party or for any candidate, but of the aggregate vote of all parties. If it affected the election it could only be by increasing interest in it and hence the number of voters. Anything which tends to such a result and overcomes indifference is rather to be fostered than denounced.
    If these references to public policy, purity of elections and other vague and general grounds of public policy have any weight they present considerations which should be addressed rather to the legislature than to a court.
    Thus statutory prohibition does not always make an act malum in se, but where it does neither party can obtain relief.

      Where the “illegality appears upon the face of the contract” there can he no relief, unless the plaintiff has been defrauded or deceived into it by the other party, who occupied a fiduciary relation to him. Where the contract is legal upon its face-there can he no relief unless discovery of facts making it illegal is followed by timely repentance.
    In the case at bar the plaintiff complains of nothing not apparent to any one upon the most casual inspection of his contract. Jones v. Garcia del Bio, 1 Turn. & Russ., 297.
    The brief of plaintiff says “the only place we have been able to find reference to that case is in”' note to Pomeroy Equity, see. 267, mentioning its citation by Judge Cooley in Youngblood v. Sexton, 32 Mich., 406.
    One is not impressed with the thoroughness of the search thus suggested in view of the following references to the ease, many with statements of its facts and approval of the elementary principles it presents. Youngblood v. Sexton, 32 Mich., 406; Chester v. Halliard, 36 N. J. Eq., 313; Story’s Equity Pleading (10 ed.), see. 97, p. 102; Foster’s Federal Practice, 119-20; Beach Modern Equity Practice, sec. 68, p. 84; Fletcher Equity Pleading and Practice, 43, 44, 73; Daniel’s Chancery Pleading and Practice, 242-3, 344; Pomeroy Equity Jurisprudence, sec. 267.
    Nor can we agree with the doubt that the Garcia case decides any principle of law. Judge Smith did not use it to overthrow the statutes of Ohio. Lord Eldon did not assume the validity of the contract involved. Chester v. Halliard, 36 N. J. Equity, 31(1882), states the facts of the Garcia case, quotes. Lord Eldon’s language with approval and cites no other authority.
    Whatever the exact nature of the contract, the petition was properly dismissed. The plaintiff stood alone and represented no one. Nothing but his fifty cents was involved. If his suit without prior demand were repentance, then his suit divided all participants into two classes, (1) those who repented with him as its sole member, (2) those who did not.
    The election having occurred as the determining event, it divided the latter into two classes, (3) the successful, and (4) the unsuccessful guessers. The day for repentance for the latter had passed. The suit did not extend their time. If the law ever gave them any right they lost it by delay, and have no further interest.
    There is to be no presumption about it, and especially none that the successful are in a class or have any common interest with the plaintiff or desire his success in this case. They are in as utter hostility as were the plaintiffs and the defendant, Hearn, who demanded return of his money, in Barclay v. Pearson, 2 Ch. Div. L. R., 154.
    The plaintiff’s interest was adverse to class 3, for his success in this suit, if he in fact represented them, would have deprived them of their prizes. They had no community of interest with him.
    If the contract be as illegal as the plaintiff contends, the law gave the guessers no other right than to sue for and recover their money, if they sued in time. The plaintiff’s action is no evidence of any intention of others than himself.

      Each winner had another legal right, and that was to sue for his prize, and insist upon and test the validity of the contract.- This was a right of which none of the winners without his authority or consent could be deprived of by any act of the plaintiff. Yet the theory of representation necessary to support this case also requires that any decree in it should bind all contestants, and bar each of them.
    But the petition here alleges no facts showing that plaintiff was authorized to act on behalf of any of the participhnts. They had formed no association, entered into no agreement, gave no consent that he should sue for them.
    Finally it inevitably follows that: (1) If the contract set up in the petition was legal, then the plaintiff had no standing in court; (2) If it was illegal, his cause of action is founded on and arises out of it, and therefore must fail. Insurance Co. v. Hull, 51 Ohio St., 277; (3) If he be- entitled to any recovery under 4270 or 4271, he is limited to an action at law for the twenty-sis cents, and that therefore the court below had no jurisdiction; (4) He represented no other than himself, and had no standing in a court of equity.
    As already suggested, the appeals to consideration of public welfare and policy should be addressed to the legislature — not to the court. Before they can avail the plaintiff “the law upon the subject must be changed by the legislature and not by this court.” Williams v. Englebrecht, 37 Ohio St., 388.

      Messrs. Pogue & Pogue, for the Commercial-Tribune.
    Although the plaintiff in the trial court and the first reviewing court, and in. this court, disclaims any attempt to maintain this suit under the statutes of Ohio as a general proposition, yet he quotes fully the statutes of-Ohio relating to crimes and those sections giving a person who has lost money at gambling a right to recover in a court at law.
    It has been and always will be the purpose of the court, to give the contract an interpretation which will support, rather than defeat, it, and the presumption is in favor of its legality. Lorillard v. Clyde, 86 N. Y., 384; Hobbs v. McLean, 117 U. S., 567; Walters v. McQuigan, 72 Mich.; 155; Ferry Co. v. Railroad Co., 128 Mo., 224; Shreffler v. Nadelhoffer, 133 Ill., 536.
    It is urged, on behalf of the defendant in error, that it is a contest wherein observation and study form the all-important part in’ estimating the number of votes that would be cast for the secretary of state of Ohio at the November election, 1902. For this estimate the defendant ■offered specific sums in awards, or premiums, which were to be paid whether there was one estimate made or a greater number. There were elements ■of skill and study required in making an estimate, so that the contest was placed entirely ■out of the realm of. a lottery or scheme of •chance. It required the successful contestant to follow closely the issues involved in the campaign ; to figure on the conditions surrounding that election, the increase of population, the increase .in the voters, whether registered or otherwise; to consider various other .conditions which would naturally present themselves to the mind of a person desiring to make a successful estimate. As a matter of argument, entirely irrespective of what the facts might have been or were in this case, this must be the course pursued by the various contestants in making their estimates in order to -be successful. On account of the various observations required and the statistical examination necessary to be made, all question as to its being a lottery was eliminated, and the contest resolved itself into an exercise of study and judgment, such as removed it from the charge of being a lottery to that of a political and economic opinion. Hall v. Cox, 1 Q. B. Div. (1898), 198, 200; Stoddart v. Sagar, 2 Q. B. (1895), 474, 480; Caminada v. Hulton, 17 Cox, 307, 313; Caminada v. Hulton, 60 L. J. N. S. (M. C.), 116; Barclay v. Pearson, L. R. 2 Ch. Div., 154.
    In another recent English case, in which the facts were the guessing of'the arbitrarily selected spots, which were printed in a newspaper, and which, if a person cut out a spot, might win a certain prize, the proprietor fixing arbitrarily, which spots would win, the court said that such would be a lottery. Hall v. McWilliams, 85 L. T., 239.
    We desire to direct the attention of the court to Canadian decisions. Regina v. Dodds, 4 Ont., 390; Regina v. Jamieson, 7 Ont., 149; Dunham v. St. Croix Soap Co., 34 N. B., 243; Dion v. St. John Baptist Society, 82 Me., 319.
    The foregoing authorities show very conclusively that the construction of the contract in question under the decisions cited as related to the proper construction to be given the statutes of the state of Ohio, either under the theory of recovery of the money paid, as provided under sections 4269 to 4271, or under the theory that the defendant has been guilty of a criminal act under sections 6929 to 6931 of the Revised Statutes of Ohio, and, therefore, entitling a court of equity to interfere, is that in no event is the contract between the parties a lottery or scheme of chance under the English, state and Canadian authorities.
    A reading of the statute of Ohio creating the criminal offenses, namely, sections 6929, 6930 and 6931, shows that the words mentioned are “any lottery, policy or scheme of chance of any kind or description by whatever name, style or title the same may be denominated or known,” and that a person conducting any of the same is guilty of a criminal offense and subject to indictment. Consider, now, the words used in the United States Statutes, section 3894, and the court will see that the words contained therein are not only as comprehensive as those contained in our statutes (eliminating the word “policy,” which is not claimed by any one to be involved in this case), but more comprehensive, for the United States statute contains the words “lottery, so-called gift or similar enterprises offering prizes dependent upon lot or chance.” The statute also repeats the foregoing words once or twice. Sections 3929 and 4041 of the Revised Statutes of the United States use even stronger words than 3894, and they authorize the postmaster to forbid the delivery of letters containing either the money orders or the advertisement, and those statutes use the words “engaged in conducting any lottery, gift enterprise or scheme for the distribution of money or for any real or personal property by lot, chance or drawing of any kind. ’ ’

      These two latter sections, as well as the first section quoted, are all part of the same act, and must be construed together, so as to give the court the benefit of the entire situation. We desire to consider the construction that has been given to these statutes with reference to contracts similar to the one in question, or we might use stronger words identical with the one in question in this case, wherein it has been held that they were “not lotteries, schemes of chance or drawings of any kind,” making the party conducting the same guilty of a criminal offense under the United States Statutes, section 3894, or guilty of a breach of the postal regulations, as defined by the acts of congress, sections 3929 and 4041.
    In one contest a newspaper offered a prize to the first person estimating the correct or the nearest correct number of votes each of two opposing candidates for a certain office would receive at the ensuing election.
    The opinion touching directly on the foregoing facts, as related to the United States Statutes, mentioned above, is expressed by Attorney General Miller. 19 Opinions of the Attorney General, 681. Attorney General Griggs approves of the opinion of Attorney General Miller. 23 Opinions of the Attorr ney General, 495.
    A review of these opinions of the attorneys general evidences a careful consideration of all the points made by the plaintiff in error that this is a lottery or gaming contract, and these opinions show that each of the three attorneys general is opposed in his views to that of the counsel for the plaintiff in error. These authorities are cited to show the weight of the opinion of an ex parte judge and the one holding the highest position relating to legal matters within the gift of the president of the United States, outside of the Supreme Court of the United States; Sutherland on Statutory Construction, 217; United States v. Rosenblum, 121 Fed. Rep., 180.
    A gaming contract necessarily involves the use of the words bet or wager. There are two parties to the gaming contract, one putting up money on the one side and one putting up money on the other side. Further, it is known when the bet or wager is made who are the parties who must either win or lose; that is just the reverse of conditions in this case. The facts as relating to this case are that the defendant placed a specific sum as prizes. Stevens, the individual, made an estimate, and whether he won or lost did not affect the contractual relations with the other parties, nor did it affect the contractual relations between them, whether the company received one guess or a great number.
    We desire to call the court’s attention to certain authorities to rebut this contention that this is a gaming contract. Alvord v. Smith, 63 Ind., 62; Hanks v. Brown, 79 Ia., 560; Porter v. Day, 71 Wis., 296; Harris v. White, 61 N. Y., 532; People v. Fallon, 152 N. Y., 12; Delier v. Agricultural Soc., 57 Ia., 481; Ballard v. Brown, 67 Vt., 586; Misner v. Knapp, 13 Ore., 135; Wilson v. Conlin, 3 Ill. App., 517; People v. Reilly, 50 Mich., 384; Reilly v. Gray, 77 Hun, 406; Irving v. Britton, 28 N. Y., 529; In re Dwyer, 35 N. Y. S., 884.
    But our Supreme Court has laid down the principle very fully. Kitchen v. Loudenback, 48 Ohio St., 189.

      If the contest were conceded to be a lottery or gaming contract, the plaintiff has no standing in a court of equity.
    The plaintiff, in his petition, is bold in his statement wherein he sets forth plainly that the contract on which he Sued is a gaming contract, or, if it is not a gaming contract, it is a contract in a lottery, and that because it is a contract of such character that he has been imposed upon and should recover. There is not the slightest charge in this case of any fraud or misrepresentation on the part of the defendant to the plaintiff, and, therefore, the plaintiff puts upon himself the odium which the law casts upon a litigant when he makes the direct charge of being a party to a lottery or gaming contract, and, by reason thereof, can not recover. In such a situation the maxim, “Ex turpi causa, non oritur actio,” applies to the plaintiff. Let us see the situation the plaintiff was in before the legislature enacted the statutes, sections 4269 to 4271, which gave the plaintiff the right to recover at law money lost or wagered in a lottery or at gambling. Hooker et al. v. DePalos, 28 Ohio St., 261; Kahn v. Walton, 46 Ohio St., 210.
    These propositions, as advanced by our Supreme Court, are irrefutable when this court considers the pleas advanced by the plaintiff as to his rights to recover, and sustain our contention that on the proposition of pari delicto he has no standing in a court of equity. This opinion of our court is fully substantiated in a series of decisions from which quotations are unnecessary, but which we shall cite to the court now: Goodrich v. Haughton, 134 N. Y., 115; Thomas v. Richmond, 12 Wall., 349; Walker v. Gregory, 36 Ala., 180; Higgins v. McCrea, 5 O. F. D., 497; 116 U. S., 671; Griffin v. Piper, 55 Ill. App., 213; White v. Barber, 123 U. S., 392. Therefore he has no standing in a court of equity, and his plea should be dismissed, as was done below.
    The plaintiff can not join other contestants with him or make them parties defendant to the suit, and thereby create a case in equity. Platt v. Colvin, 50 Ohio St., 711; Daniell Chancery Practice, 242; Jones v. Garcia del Rio, Turn. & Russ., 297; Barclay v. Pearson, 2 Oh. Div., 170 (1893); Croskey v. Bank, 4 Griff., 330; Hatton v. Fernie, L. R. 3 Ch. App., 467; Weale v. W. M. Co., 1 J. & W., 358; Thomas v. Hubler, 4 DeG. F. & J., 199.
    We desire to call the court’s attention to a few American decisions, as well as the decisions in our own state. Trustees v. Thoman, 51 Ohio St., 285.
    The whole question is very fully defined in the principles set forth in Swenson v. Moline Plow Co., 14 Kan., 387; Bort v. Yaw, 46 Ia., 323; Keary v. M. R. F. L. A., 30 Fed. Rep., 359; Petty v. Bowger, 7 Bush, 513; Martin v. Davis, 82 Ind., 38; Walker v. Devereaux, 4 Paige, 247.
    In the case at bar each of these parties paid in their money separately; they did not pay it into a fund which was created by their payments; they paid it to the corporation under separate and distinct acts, and in separate and distinct transactions. The corporation had set apart for the payment of these awards money not connected with the payments made by the parties in any way, and we, therefore, submit, in view of the foregoing authorities and the well-established principle that this is not a case where the plaintiff can unite others with him, either as plaintiffs or make them parties to the suit as defendants, so as to make an equitable action. His action is one at law, pure and simple, to recover the money paid to this defendant, according to his claim, under a lottery or gambling contract.
    So that we submit, in view of the authorities cited heretofore, there was neither a contractual nor a trust relation created in any wise by the estimates made by the different persons taking part in this contest.
    If it should he further urged that the agreement is within the sphere or intent of any of the sections of the criminal statutes, then we must apply the well-defined principle that criminal statutes are not elastic and can not he made to include cases without the letter, although within the reason and policy, of the law. Hanks v. Brown, 79 Ia., 563; Boughner v. Meyer, 5 Col., 71; Shaw v. Clark, 49 Mich., 385; Sondheim v. Gilbert, 18 N. E. Rep., 690.
    Public policy is something about which and in regard to which an indefinite argument could he made, hut the rules of court applying to the same are well defined in the following authority and the authorities which it approves. Smith v. Du Bose, 78 Ga., 435.
    We submit in conclusion:
    First: That the contract is not a lottery nor a scheme of chance.
    Second: That it is not a gaming contract.
    Third: That, even if the contract were conceded to he either a lottery, a scheme of chance or a gaming contract, the plaintiff has no standing in a court of equity, because his petition is based on a claim which will not entitle him to any consideration by such a court.

      Fourth: That the plaintiff can not join other contestants with him or make them parties defendant to the suit to create a cause in equity.
    Fifth: That the plaintiff’s only possible claim, if it were conceded to be a gambling or lottery contract, is a suit at law, and, as the sum for which he brings suit is only fifty cents, the subject-matter does not give this court jurisdiction.
    Sixth: Finally, this court should not consider any question of public policy relating to this transaction, for the reasons that it has no jurisdiction and that there is nothing' to justify it, and if the plaintiff is desirous of reforming the morals of the universe he should submit his views to the proper tribunal, namely, the legislature, and have it act in accordance with his ideas, if they deserve consideration.

      Mr. Alexander Murray, Jr., for the Enquirer.
    This contest was not a gaming contest. Alvord v. Smith, 63 Ind., 58; People v. Fallon, 152 N. Y., 12; Harris v. White, 81 N. Y., 532; Delier v. The Plymouth A. S., 57 Ia., 481; Misner v. Knapp, 13 Ore., 135; Porter v. Day, 71 Wis., 296; Wilson v. Conlin, 3 Ill. App., 517.
    There can be no difference as to the nature of the contest ;-whether it be of brain or brawn, of speed or learning, the right to hold it and engage in it is the same. The conditions governing this contest and those cited above, are legally identical. The conclusion of the court below on this point was, we respectfully submit, correct.
    The contest carried on by defendant in error was not a lottery. The last edition of the Century Dietionary gives the following definition of the word “lottery:” “Distribution of anything by lot; allotment; also the drawing of lots; determination by chance or fate; random choice; matter of chance.” People v. Elliot, 74 Mich., 264; United States v. Wallis, 58 Fed. Rep., 942.
    Nor are we,at a loss for examples of the application of these and similar definitions to specific facts. Commonwealth v. Wright, 137 Mass., 250; Reilly v. Gray, 77 Hun, 402; Barclay v. Pierson, 2 Ch. Div. (1893), 154; Hall v. Cox, L. R. 1 Q. B. (1899), 198.
    We wish to call Your Honors’ attention to the decision in the case of Regina v. Dodds, 4 Ont., 390. Held, That the contest was not a lottery. This view was upheld in Regina v. Jameson, 7 Ont., 149; Dunham v. St. Croix Mfg. Co., 34 N. B., 245; 23 Attorney General’s Reports, 207; 121 Fed. Rep., 180. This is a very fully and carefully considered case, and read in conjunction with the exhaustive and luminous opinion of the able judge who decided these cases in special term, seems to render a further elaboration of this point useless. Stevens v. Enquirer Co. et al., 13 Dec., 235.
    Plaintiff in error has no standing in a court of equity. Plaintiff in error says under the heading,. “Equity Will Raise Implied Trust,” of and concerning this case, “it will be decided under the principles of the common law.”
    What his rights are either in law or equity can be easily ascertained without turning further than the decisions of our own state. Kahn v. Walton, 46 Ohio St., 213; Bispham’s Equity, sec. 223; Hooker v. DePalos, 28 Ohio St., 261.

      But can plaintiff in error be heard to say that he wishes to rescind his contract and recover back his fifty cents because the contract remains wholly executory, and hence, according to the common law, and not under the statute, he is entitled to relief?
    If the plaintiff made his estimate in good faith, it was with the hope of making an estimate which would entitle him to one of the advertised rewards. When he paid his money and registered his estimate, his hope for success lay in the accuracy of registration carried on by the defendant; in the thoroughness of its system for the prevention of fraudulent estimates which might participate in the awards; in the many things which, in a contest of this kind, are necessary to insure fairness and justice in the awarding and distribution of the agreed premiums. These precautions and such a system must, of their very nature, entail expense. And yet, at the very close of the contest, this plaintiff appears, asking, after the defendant had altered his position and expended large sums of money in carrying it on, that a court of equity shall interfere, by extraordinary process, to put him in statu quo. Miller v. Larson, 19 Wis., 466.
    If we are to accept the astounding contention of the plaintiff that he sues for himself and all other participants in the contest, he can not escape the answer that such contest was carried on by the defendant at great expense and at the cost of much time and labor, so that its position being altered, plaintiff, and those on behalf of whom he claims to sue, can not ask to be put in statu quo at the expense of the defendant, with whom they are in pari delicto.

      His repentance, to be meritorious, should come in time to prevent loss to the other party, and, if honest, should be at his own proper expense. Hooker v. DePalos, 28 Ohio St., 251.
    The repentance (if we can use the term with reference to plaintiff’s state of mind concerning an investment which he obviously made for the sole and only purpose of bringing this suit) had undoubtedly come too late, as the courts below held. Weakley v. Watkins, 7 Humph., 356; Kahn v. Walton, 46 Ohio St., 208; Barclay v. Pierson, 2 Ch. Div. (1893), 154.
    If he had the right to repent and sue for the other contestants, the rights of all the prize winners to collect their rewards have been destroyed absolutely by the filing of this petition, which disclaims and seeks to abrogate the contracts of one and all.
    The language of the Lord Chancellor in the case of Jones v. Garcia del Rio, Turn. & Russ., 297, seems particularly appropriate to this case.
   Speak, J.

It will be noted that the allegation against the Times-Star respecting the use which was to be made of the amount contributed is that twenty-four cents of the fifty cents paid was for a subscription to the newspaper, and that the remaining twenty-six cents were to go into a fund which, along with similar payments from others, was to constitute the fund from which the prizes were to be paid, whereas the prizes by the other companies were to be paid from their own funds, and no subscription to either newspaper was made. But it is believed that there is no essential difference in the questions of law presented by the several petitions. Hence it has not been found important to incorporate all of them in full in the record here.

To maintain his case the plaintiff must establish that the scheme shown by the petition involves a lottery, or a gaming contract such as is made unlawful either by the statutes of Ohio or at common law, and that he is entitled to relief by a court of equity such as is demanded by his petition.

1. Is the project a lottery, or an unlawful gaming scheme of any kind 1 Under the head of “ Lotteries ’ ’ our statutes, sections 6929, 6930 and 6931, interdict the publishing in any way an account of any lottery or scheme of chance of any kind or description, stating when or where the same is to be drawn, or the prizes therein, or in any way giving publicity to such lottery or scheme of chance; the vending, or in any way disposing of any ticket, order or device of any kind, for or representing any number . of shares, or any interest in any lottery or scheme of chance of any kind or description; the carrying on or promoting any scheme of chance of any kind or description by whatever name, style or title the same may be denominated or known. Under the head of “Gaming and Betting,” section 6938 declares unlawful the making of any bet or wager for any sum of money, or other property of any value, and the following section declares unlawful the making of any bet or wager on the result of any election held under the laws of this state, etc. Giving further effect to the spirit of these provisions, the statute (sections 4269 to 4271) declares that all promises, agreements, etc., the whole or any part of the consideration of which is money or any other valuable thing, won or lost, laid, staked, or betted, at or upon any game of any kind, or under any denomination or name whatsoever, or upon any wager, shall he absolutely void; money, or other thing of value, may he recovered hack from the winner hy action commenced within six months, and one who expends any money, or thing of value, to procure any chance, or any interest therein, on account of any scheme of chance, may sue for and recover from the person receiving such money, etc.

Many definitions of the word lottery are found in the hooks. An often quoted definition is given by Folger, J., in Hull v. Ruggles, 56 N. Y., 424, which is: “Where a pecuniary consideration is paid, and it is determined hy lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery.” “A sort of gaming contract by which, for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks.” American Cyclo. “A lottery,” says the supreme court of Michigan in The People v. Elliott, 74 Mich., 264, “is a scheme by which a result is reached by some action or means taken, and in which result man’s choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished.”

However, it should not be concluded that the term “lot or chance” implies that if any element of certainty or skill enters into the scheme it therefore relieves it of its character as a lottery, or scheme of chance. Chance is something that befalls; the result of unknown or uncertain forces or conditions. An intelligent definition is given in 6 Cyc., 890, thus: “Possibility, hazard, risk,'or the result or issue of uncertain and unknown conditions or forces, neither understandingly brought about by one’s act, nor pre-estimated by one’s understanding.” This element of chance is not at all incompatible with the presence of an element of calculation, or even certainty. That principle is illustrated in Horner v. United States, 147 U. S., 449, where the court say: “Although by the bonds in question, Austria attempted to obtain a loan of money, she also undertook to assist her credit by an appeal to the cupidity of those who had money, and offered to every holder of a bond a chance of obtaining a prize dependent upon lot or chance, the element of certainty going hand in hand with the element of lot or chance, but the former not destroying the existence or effect of the latter.” It is easily within bounds to conclude that if the dominating, determining element is one of chance, that element gives character to the whole scheme.

Our statute as to gaming and betting has been cited. A bet is: “An agreement between two or more, that a sum of money, or some valuable thing, in contributing which all agreeing take part, shall become the property of one or some of them, on the happening in the future of an event at the present uncertain; the mutual agreement and tender of a gift of something valuable, which is to belong to the one or the other of the contracting parties, according to the result of the trial of chance or skill, or both combined; a wager; to put to hazard a sum ascertained upon a future happening of some event then uncertain; the thing or sum wagered. ’ ’ 5 Cye., 684. A wager is: “A bet; a contract by which two parties or more agree that a certain snm of money, or other thing, shall be paid or delivered to one of them on the happening, or not happening of an uncertain event. A contract upon a contingency by which one may lose but cannot gain, or the other must gain but cannot lose, is a wager. * # * A wager is something hazarded on the issue of some uncertain event; a bet is a wager, although a wager is not necessarily a bet.” 2 Bouv., 793.

With the provisions of statute and these rules and definitions before us, what conclusion follows ? The petition in the first-named case shows that the plaintiff paid fifty cents for a subscription to a newspaper and for the privilege of guessing or estimating the total number of votes that would be cast for the secretary of state of .Ohio, at the coming election, November 4, 1902, the subscription to cost twenty-four cents and the guess to cost twenty-six cents, and in case his guess should be superior to all those coming within the terms of the offer extended to all, or equal to those coming within a lower class with the plaintiff, he was to receive a money prize, to be paid to him by the newspaper company, varying in amount from one-tenth of the whole sum contributed by the guessers, to a sum equal to one-fifth of one-eightieth of the whole sum so contributed, all depending upon the nearness of his guess to the actual number of votes cast for the officer named and the nearness of the other guesses to that total vote. It was the opinion of the learned judge who heard the case at the special term that these guessing contests were not within the condemnation of the., statutes of Ohio against lotteries, gambling, wagering, or betting. (13 Dec., 235.) In a later case, that of Hobing v. The Enquirer Company, heard in the common pleas of Hamilton county, wherein the plaintiff, a guesser, sought to recover judgment upon an allegation that he had made the correct estimate and was therefore entitled to the prize of $10,000.00, that court (Littleford, J.) held that the alleged contract was a wager between the plaintiff and defendant, was in violation of section 4269, Revised Statutes, and that, while plaintiff might, under this statute, recover back his fifty cents in a proper court, yet, the common pleas not having jurisdiction of the amount, the petition was dismissed. By the opinion in this later ease (2 N. P. N. S., 205), we learn that, although the general term affirmed the judgment of the special term, two of the judges (one of them being the learned judge of. the common pleas at the time sitting as a member of the general term) did not concur in the holding of the special term respecting the character of the contract.'

Which, if either, of these views is correct? It would seem not difficult to reach the conclusion that the project was, in essence and reality, a scheme of chance. The term guess itself imports uncertainty. It is at best a conjecture, a random judgment, and a guesser is one who gives an opinion without means of knowing. It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some advantages over one ignorant in those respects, yet, it must be apparent even to a casual observer, that the result would depend upon so many uncertain and unascertainable causes, that the estimate of the most learned would be after all nothing more than a random and undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved, but it is clear that the controlling, predominating element is mere chance. It was a chance as to what the total vote would be; it was equally a chance as to what the guesses of the other guessers would be. Whether or not the transaction includes the quality of a bet is not so certain. Its determination is not essential to a proper disposition of this case. We incline to think, however, that it does, but are unable to agree with the conclusion that the bet is between the plaintiff and the defendant. A bet implies that what one party gains the other loses, and vice versa. The defendant in the present case loses nothing whatever the outcome; nor does it gain whatever the outcome. It is a matter of indifference to it who wins the prizes, whether this plaintiff or any of the other contributors. Not so with the contributors between themselves. If A. should win the first prize, for instance, B. could not. If the transaction were a bet, therefore, it would seem to be between this plaintiff and all the other guessers, and in this view the defendant would be a mere stakeholder. We are not concerned to inquire what the law of other jurisdictions may be and hence do not take the pains to discuss, or even cite, the mass of authorities cited by counsel. They will be found in the reporter’s introduction, to which any curious inquirer, should there be such, is referred. It suffices that, under the laws of Ohio, these guessing contests were, all of them, unlawful. Not that there is any belief or claim that the several defendants would, either of them, fail to conduct the ascertainment of the successful guessers and the awarding and payment of the prizes with entire impartiality and fairness, but the schemes themselves must be held to be within the condemnation of our statute. The vice of the project lies in the payment of money for the opportunity to win more money by a scheme of chance. It is not simply the winning of prizes that the statute seeks to inhibit. There may be such contests in which there is no element of gambling. If the contestant, or player, risk nothing, as where the prizes are offered in school by the teacher to scholars for the best essay, or in society by the host or hostess as an inducement to guests to attend social gatherings and indulge in games innocent in themselves, the winners to receive prizes as matter of grace and favor, and as reward for skill, it is not considered that the function embraces any gambling element, whatever other objectionable features, if any, are present; but, where the players make up by payment of money, or other thing of value, a purse which affords the prizes, as in the ordinary raffle, the game is a gambling game, whether skill enters into the result or not. All highly civilized peoples recognize the evils to society arising from the encouragement of the gambling spirit, and it is for the purpose of discouraging this vice and preventing the spread of it, that laws are passed in other states like the Ohio statutes to punish and prohibit. Such laws are and should be interpreted and enforced by our courts in a way calculated to secure the object sought. A familiar case is that of Hooker v. DePalos, 28 Ohio St., 251, condemning and holding unlawful a scheme known as a “gift enterprise.” This is an instructive case, and the vice which is condemned by the court is the same which inheres in the scheme present in the case at bar.

2. Is the plaintiff entitled to relief in a court of equity?

He seeks to invoke the jurisdiction of the equity court and asks an injunction and a receiver, on the ground that he stands in a representative capacity, having the right to represent and appear for all the other persons who have delivered money to the defendant under the same terms and conditions under which plaintiff delivered his .fifty cents; that such persons are numerous; that each and all having a general interest in and common right to the money or fund thereby accumulated, the fund equitably belongs to all who have made guesses and paid money to the defendant, and hence plaintiff has the right to maintain a suit in equity for the benefit of all. Is his position tenable? This contest we have found to be an illegal enterprise. It is apparent that the inducement to the guessers was not to subscribe for a newspaper, but to get a prize. They, therefore, are each and every one of them particeps crvmmis in an illegal transaction. The general rule applicable to such a situation is that the law will aid neither party to enforce the contract while executory, nor, where executed, will it aid either party to place himself in statu quo by a rescission, but will, in both cases, leave the parties where it finds them. This well-established rule has been varied by changes in our statute, as we have seen, which allows money won by gaming or betting to be. recovered at law by the loser. But these are exceptions, and are to he confined to the particular cases, and relief to be obtained by the particular methods indicated by the statute. While this is true it is also true, independent of the statute, that, so long as the illegal acts remain wholly unexecuted, the party parting with his money may repent, abandon his contract, and recover back the money paid, the law’s aim being to prevent wrongdoing by encouraging such repentance and abandonment. Roll v. Raguet, 4 Ohio, 400; Cowles v. Raguet, 14 Ohio, 38; Thomas v. Cronise, 16 Ohio, 54; Hooker v. DePalos, supra; Cooper v. Rowley, 29 Ohio St., 547; Kahn v. Walton, 46 Ohio St., 195. The plaintiff claims to have thus repented. Well and good so far as it goes. But how about the other guessers? Have they repented? Did they, when this suit was commenced, want their alleged contract rescinded? The petition shows that they were very numerous; that their names are unknown to the plaintiff, and it is impracticable to bring them before the court. This is a conclusive showing, it appears to us, that he is wholly without information respecting a condition essential to the maintenance of a joint suit in equity. Indeed the presumptions are against the plaintiff’s claim. These people had paid a small amount of money for a chance to receive a much larger amount, and they would ,be presumed to remain of the same mind until the contrary is shown. The case is wholly dissimilar, in its presumptions, from one to which it is sought to be likened, viz.: where a property owner seeks to avoid payment of an alleged illegal assessment. In such case it might naturally be presumed that the property owners would all be of the same mind in an endeavor to avoid an injustice.

The rule is uniform that, in order to maintain a suit by one for the benefit of himself and others, there must be community of interest as well as a right of recovery by reason of the same essential facts. Armstrong v. Treas., 10 Ohio, 235; Ohio v. Ellis, same volume, 456; Trustees v. Thomas, 51 Ohio St., 285, 295; Duncan v. Willis, same volume, 433. These elements are lacking in the case made by the plaintiff’s petition. In passing, also, we should take note of the fact that there would have followed as a necessity from the sustaining of plaintiff’s contention, the ascertainment by the court through its receivers of the names and addresses of the four hundred thousand contributors, and the distribution to each of his half-dollar, reduced by his proportion of the probable fees, allowances and costs, and when this is considered it must be apparent that the magnitude and difficulties of the task would be immeasurably greater than any good which the painful working out of the remedy would bring about.

The superior court properly sustained the demurrer to the petition as an appeal to the equity side of the court, and, having no jurisdiction of the law case respecting the amount, it properly dismissed the case. Its judgment is, therefore,

Affirmed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.