they issue diplomas to those taking a full pellation in a medical sense to his or her course; that the degree of ophthalmology is name, or shall profess publicly to be a phyconferred; that he received a regular course sician or surgeon, [he or she] diploma, and graduated in ophthalmology,— shall be regarded as practising within the the fitting of glasses; that the degree of doc- | meaning of this act." The evidence seems tor of ophthalmology was conferred upon to be uncontradicted that the plaintiff in him, and that he had a diploma, which he error did, upon a sign in front of his office, produced; that no disease was treated by and in the notice published, prefix to his him by the use of medicine; that they were name the letters "Dr.," and it is quite clear not instructed to treat any disease by the from the evidence that they were used in a use of medicine in that college; that the medical sense, and we are of the opinion course of education in that college was pure- that the jury were fully justified in so rely nonmedical; and that they learned to cor- garding them. rect errors in refraction by test. On crossexamination he stated that he took the course of a graduate, a two-weeks course, a little over two weeks. He also testified that he studied anatomy and physiology of the eye for about two years; that previous to going to the school he studied for about a year in Iowa; that he was in a doctor's office, where he made a specialty of refraction. Chapter 176, p. 202, of the Laws of 1903, provides for creating a board of medical examiners, defines their duties, empowers them to grant licenses to qualified applicants, and prescribes penalties for practising without such a license. Section 21 provides as follows: "When a person shall append or prefix the letters 'M. B.', or 'M. D.', or the title 'Dr.' or 'Doctor' or any other sign or appellation in a medical sense to his or her name or shall profess publicly to be a physician or surgeon, or who shall recommend, prescribe, or direct for the use of any person any drug, medicine, apparatus, or other agency for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or bodily injury, or deformiity after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation, [he or she] shall be regarded as practising within the meaning of this act." It will be observed that it is provided by the above section that, "when a person shall append or prefix the letters 'M. B.', or 'M. D., or the title 'Dr.' or 'Doctor' or any other sign or ap

The legislature evidently intended, in enacting the law, to prevent persons not properly educated in the science of medicine from assuming to act as a physician, and to protect the public, and it has deemed it proper that every person assuming to act as a physician or surgeon should be properly licensed. In carrying into effect this law, it was competent for the legislature to define, as it has assumed to do in § 21, what evidence shall be deemed sufficient to constitute a practitioner within the meaning of the act. In view of the testimony of the physicians as to the proper definition of ophthalmology, it is quite clear from the advertisement of the plaintiff in error that he had assumed to hold himself out as a physician within the meaning of the act. And it is not only clear from the language of the advertisement itself, which would be generally understood as an assumption on his part of being a regular physician, or at least a specialist in that branch of medicine treating of ophthalmology, but the legislature has declared that prefixing the term "Dr.," to his name shali be so regarded. The law should not be so construed as to deprive the people of the benefits intended by the act, but such a construction should be given it as to carry into effect the evident intention of the legis lature. See 22 Am. & Eng. Enc. Law, p. 786, and cases there cited.

Finding no error in the judgment of the Circuit Court, the same is affirmed.

NOTE. AS to what constitutes a lottery,, 7 L. R. A. 599, and note; Ballock v. State, 8 see also. In this series, People v. Elliott, 3 L. L. R. A. 671; State v. Boneil, 10 L. R. A. 60; R. A. 403, and notc; Yellowstone Kit v. State, State ex rel. Kellogg v. Kansas Mercantile

E

XCEPTIONS by defendant before sentence to a ruling of the Circuit Court for Chippewa County directing a verdict of guilty in a prosecution for conducting a lottery. Affirmed.

The facts are stated in the opinion, Mr. Clyde Hayden, with Messrs. Holden & Holden, for exceptant.

Mr. John P. Conrick, for the People: A lottery 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."

Gen. v. Interstate Sav. Invest. Co. 64 Ohio St. 283, 52 L. R. A. 530, 83 Am. St. Rep. 754, 60 N. E. 220; United States v. McDonald, 59 Fed. 563, 12 C. C. A. 339, 24 U. S. App. 25, 63 Fed. 426; People v. Elliott, 74 Mich. 264, 3 L. R. A. 403, 16 Am. St. Rep. 640, 41 N. W. 916; United States v. Fulkerson, 74 Fed. 619; Re National Indemnity & E. Co. 142 Pa. 450, 21 Atl. 879; State v. New Orleans Debenture Redemption Co. 51 La. Ann. 1827, 26 So. 586; McLaughlin v. National Mut. Bond & Invest. Co. 64 Fed. 908; Peltz v. Supreme Chamber, O. of F. U. (N. J. Eq.) 19 Atl. 668.

Ostrander, J., delivered the opinion of

People v. Elliot, 74 Mich. 264, L. R. A. the court: 403, 16 Am. St. Rep. 640, 41 N. W. 916.

Where skill or judgment is exercised in determining the result there is no lottery, but where pure chance determines we have one of the elements of a lottery.

Barclay v. Pearson [1893] 2 Ch. 154; Caminada v. Hulton, 17 Cox, C. C. 307; Stoddart v. Sagar [1895] 2 Q. B. 474; People ex rel. Lawrence v. Fallon, 152 N. Y. 12, 37 L. R. A. 227, 57 Am. St. Rep. 492, 46 N. E. 296; Re Dwyer, 14 Misc. 204, 35 N. Y. Supp. 884; Reg. v. Dodds, 4 Ont. Rep. 390; Reg. v. Jamieson, 7 Ont. Rep. 149; Hudelson v. State, 94 Ind. 426, 48 Am. Rep. 171.

A lottery is a scheme for distributing prizes by lot or by chance.

19 Am. & Eng. Enc. Law, 2d ed. p. 588; State v. Clarke, 33 N. H. 329, 66 Am. Dec. 723; Wilkinson v. Gill, 74 N. Y. 66, 30 Am. Rep. 264; People v. Noelke, 94 N. Y. 137, 46 Am. Rep. 128; State v. Willis, 78 Me. 73, 57 Am. Rep. 784, 2 Atl. 848; Com. v. Sullivan, 146 Mass. 142, 15 N. E. 491; Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 62 L. R. A. 97, 97 Am. St. Rep. 177, 44 S. E. 320; United States v. Wallis, 58 Fed. 942; United States v. McDonald, 59 Fed. 563; United States v. Fulkerson, 74 Fed. 627.

A scheme where inequality in payment or distribution is to result from chance is a lottery.

Dunn v. People, 40 Ill. 465; Meyer v. State, 112 Ga. 20, 51 L. R. A. 496, 81 Am. St. Rep. 17, 37 S. E. 96; United States v. Wallis, 58 Fed. 942; Ballock v. State, 73 Md. 1, 8 L. R. A. 671, 25 Am. St. Rep. 559, 20 Atl. 184; United States v. Politzer, 59 Fed. 273; Horner v. United States, 147 U. S. 449, 37 L. ed. 237, 13 Sup. Ct. Rep. 409; Reg. v. Harris, 10 Cox, C. C. 352; Sykes v. Beadon, L. R. 11 Ch. Div. 170; State ex rel. Atty.

Asso. 11 L. R. A. 430; Long v. State, 12 L. R.
A. 89, and note. 12 L. R. A. 425; Thornhill v.
O'Rear, 31 L. R. A. 792; Lynch v. Rosenthal,
31 L. R. A. 835; People er rel. Lawrence v.
Fallon, 37 L. R. A. 227; Meyer v. State, 51
L. R. A. 496; State ex rel. Sheets v. Interstate

At the conclusion of the testimony in this case, counsel on both sides asserted that there was no issue of fact to be determined, and requested the court to direct a verdict either of conviction or acquittal, according to his opinion of the law. The court instructed the jury that, under the testimony, they should render, and they did render, a verdict of guilty as charged, and the case comes here upon exceptions before sentence.

Respondent is charged in the information with setting up and promoting a lottery for merchandise, and that he did dispose of merchandise by way of lottery and gift enterprise, contrary to the form of the statute. He is a merchant tailor doing business at the city, of Sault Ste. Marie, and, in connection with, or as a part of, the regular business, he conducted what is known as a "tailor suit club," or "suit club." This suit club had 30 members, who each paid to respondent $1 a week. Respondent gave receipts for the money, dated, and in the following form: "$1.00. Received of one dollar, club dues. M. J. McPhee." To each members a number was allotted by the members themselves. These were put in a cigar box, thoroughly mixed and shaken, and a drawing was made from this box by one of the members according to some plan agreed upon among themselves. The drawings took place each Saturday night, and some member, as a result of the drawing. received for whatever he had paid in a suit of clothes or an overcoat valued at and worth $20, made to order by respondent. If a member won, he drew out of the club, and a new member was taken in. It might occur that one who had paid in but $1 would get the suit of clothes or overcoat, and it might occur that a member would pay $20

Sav. Invest. Co. 52 L. R. A. 530; State ex rel. Prout v. Nebraska Home Co. 60 L. R. A. 448: Equitable Loan & Security Co. v. Waring, 62 L. R. A. 93; Winston v. Beeson, 65 L. R. A. 167; People ex rel. Ellison v. Lavin, 66 L. R. A. 601.

and participate in 20 drawings without securing either as a result of the drawing. It was a part of the agreement, however, and was the practice, to permit a member of the club to withdraw at any time, and upon such withdrawal he was entitled to receive from respondent clothing of the value of the money he had contributed to the club, or let the sum of money he had paid in stand as a credit and as part payment for clothing pur-phers, some by judges, and particularly to chased of respondent. That is to say, if a member had paid $1 a week for twenty weeks, he had a credit of $20. If he had paid but six weeks, he had a credit of $6, which he could use with the respondent in the purchase of garments.

.

mischief. The word "lottery" is generic. | fle," or "gift enterprise," or by any other No sooner is it defined by a court than in-name. The court held the term "lottery" genuity evolves some scheme within the mis- to have no technical meaning; but under the chief discussed, but not quite within the let- statute it was to be construed in the popu ter of the definition given. This is made lar sense, and with the view to remedy the very apparent in the large number of cases mischief intended to be prevented. "The which we have examined in which various statute is intended to reach all devices which methods of distributing money or goods by are in the nature of lotteries, in whatever chance are examined and discussed. It is form presented, and the courts will tolerate said by counsel for respondent in their brief no evasions for the continuance of the misthat this court, in People v. Elliott, 74 Mich. chief. Of the fact that the holder had the 264, 3 L. R. A. 403, 16 Am. St. Rep. 640, option to receive in goods the amount he had 41 N. W. 916, laid down a definition which paid, it was said that it would probably did not include a possibility of loss. In that operate only as an additional incentive to case, as in others, the language of the opin- aid the lottery scheme. "It does not take ion is addressed to the facts before the the scheme out of the statute. They were court, and the contentions presented for de- not bought in order to get their face value cision. We approve the language used in the opinion in Ballock v. State, 73 Md. 1. 8 in goods. The vicious element still inheres L. R. A. 671, 25 Am. St. Rep. 559, 20 Atl. in the transaction. . . . The sale of a 184, where it is said: ticket "Our statute does gave the purchaser the chance to obnot justify a court in deciding a tain something more than he paid for, and thing is not a lottery simply because there that became an extra inducement for the can be no loss, when there may be very large purchase." Counsel for respondent say that contingent gains, or because it lacks some the Minnesota statute differs from ours, and element of a lottery according to some parthat the court had before it what we have ticular dictionary's definition, when not, a statutory definition of the word it has all the other elements, with all the "lottery." The definition, however, is very pernicious tendencies which the state is broad, and cannot be said to contain any seeking to prevent." In that case it was language which would make the decision on contended that no blanks were drawn, and that account inapplicable here. Upon the the scheme considered provided for the ulti- facts and the construction placed by the mate return of the entire investment, with court upon the statute, the case is decisive. interest; the time of such return to certain holders of the bonds depending upon chance, and the inducement for investment being the possibility of getting a bonus, also determined by chance. See also State ex rel. Atty. Gen. v. Interstate Sav. Invest. Co. 64 Ohio St. 283, 52 L. R. A. 530, 83 Am. St. Rep. 754, 60 N. E. 220; Den ex dem. Wooden v. Shotwell, 23 N. J. L. 465; United States v. Olney, 1 Abb. (U. S.) 275, Fed. Cas. No. 15,918; State v. Mumford, 73 Mo. 647, 39 Am. Rep. 532; MacDonald v. United States, 12 C. C. A. 339, 24 U. S. App. 25, 63 Fed. 426; Reg. v. Harris, 10 Cox, C. C. 352. For a considerable collection of cases and general discussion, see Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 62 L. R. A. 93, 97 Am. St. Rep. 177, 44 S. E. 320. The case of State v. Moren, 48 Minn. 555, 51 N. W. 618, is in its essential facts precisely like the case at bar. The only question considered by the court was whether the evidence was sufficient to bring the case within the condemnation of the statute. The Minnesota statute defines a lottery to be a scheme for the distribution of property by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance, whether called a "lottery," "raf

It cannot be denied that the respondent sought to, and presumably did, increase his business by a device or scheme, the feature of which, so far as securing patrons and customers was concerned, was the chance to obtain $20 worth of clothing for some sum of money less than $20. It was calculated to, and did, appeal to the gambling propensity of men, was within the mischief at which the legislation is aimed, was within the terms of the statute, and, in our opinion, a disposition of property by way of lottery. We are referred by counsel to no case which sustains their contention.

We have not lost sight of the fact that the charters of various cities permit ordinances forbidding lotteries and punishing promoters of them, treating them as minor offenders, nor that the statute before us warrants the imposition of a considerable penalty, and makes a second offense a felony. The statute is general, as it must be, and applies to big and to little lotteries. The extent of the mischief done by respondent is not a consideration which ought to affect our determination.

We are of opinion that the court below was right, and the conviction is therefore affirmed.

MINNESOTA SUPREME COURT.

*1. It is the duty of a common carrier known, but whether it used that degree of to whom goods are delivered for transportation to forward them promptly, and without unreasonable delay, to their

Wald v. Pittsburg, C. C. & St. L. R. Co. 35 they are such as reasonably to awaken ap