EN BANC for the transmission of communications relative

thereto, representations were made by Caltex with the

G.R. No. L-19650             September 29, 1966 postal authorities for the contest to be cleared in
advance for mailing, having in view sections 1954(a),
CALTEX (PHILIPPINES), INC., petitioner-appellee, 1982 and 1983 of the Revised Administrative Code, the
vs. pertinent provisions of which read as follows:
ENRICO PALOMAR, in his capacity as THE POSTMASTER
GENERAL, respondent-appellant. SECTION 1954. Absolutely non-mailable matter.
— No matter belonging to any of the following
CASTRO, J.: classes, whether sealed as first-class matter or
not, shall be imported into the Philippines
In the year 1960 the Caltex (Philippines) Inc. through the mails, or to be deposited in or
(hereinafter referred to as Caltex) conceived and laid carried by the mails of the Philippines, or be
the groundwork for a promotional scheme calculated to delivered to its addressee by any officer or
drum up patronage for its oil products. Denominated employee of the Bureau of Posts:
"Caltex Hooded Pump Contest", it calls for participants
therein to estimate the actual number of liters a Written or printed matter in any form
hooded gas pump at each Caltex station will dispense advertising, describing, or in any manner
during a specified period. Employees of the Caltex pertaining to, or conveying or purporting to
(Philippines) Inc., its dealers and its advertising agency, convey any information concerning any lottery,
and their immediate families excepted, participation is gift enterprise, or similar scheme depending in
to be open indiscriminately to all "motor vehicle owners whole or in part upon lot or chance, or any
and/or licensed drivers". For the privilege to participate, scheme, device, or enterprise for obtaining any
no fee or consideration is required to be paid, no money or property of any kind by means of
purchase of Caltex products required to be made. Entry false or fraudulent pretenses, representations,
forms are to be made available upon request at each or promises.
Caltex station where a sealed can will be provided for
the deposit of accomplished entry stubs. "SECTION 1982. Fraud orders.—Upon
satisfactory evidence that any person or
A three-staged winner selection system is envisioned. company is engaged in conducting any lottery,
At the station level, called "Dealer Contest", the gift enterprise, or scheme for the distribution of
contestant whose estimate is closest to the actual money, or of any real or personal property by
number of liters dispensed by the hooded pump thereat lot, chance, or drawing of any kind, or that any
is to be awarded the first prize; the next closest, the person or company is conducting any scheme,
second; and the next, the third. Prizes at this level device, or enterprise for obtaining money or
consist of a 3-burner kerosene stove for first; a thermos property of any kind through the mails by
bottle and a Ray-O-Vac hunter lantern for second; and means of false or fraudulent pretenses,
an Everready Magnet-lite flashlight with batteries and a representations, or promises, the Director of
screwdriver set for third. The first-prize winner in each Posts may instruct any postmaster or other
station will then be qualified to join in the "Regional officer or employee of the Bureau to return to
Contest" in seven different regions. The winning stubs the person, depositing the same in the mails,
of the qualified contestants in each region will be with the word "fraudulent" plainly written or
deposited in a sealed can from which the first-prize, stamped upon the outside cover thereof, any
second-prize and third-prize winners of that region will mail matter of whatever class mailed by or
be drawn. The regional first-prize winners will be addressed to such person or company or the
entitled to make a three-day all-expenses-paid round representative or agent of such person or
trip to Manila, accompanied by their respective Caltex company.
dealers, in order to take part in the "National Contest".
The regional second-prize and third-prize winners will SECTION 1983. Deprivation of use of money
receive cash prizes of P500 and P300, respectively. At order system and telegraphic transfer service.—
the national level, the stubs of the seven regional first- The Director of Posts may, upon evidence
prize winners will be placed inside a sealed can from satisfactory to him that any person or company
which the drawing for the final first-prize, second-prize is engaged in conducting any lottery, gift
and third-prize winners will be made. Cash prizes in enterprise or scheme for the distribution of
store for winners at this final stage are: P3,000 for first; money, or of any real or personal property by
P2,000 for second; Pl,500 for third; and P650 as lot, chance, or drawing of any kind, or that any
consolation prize for each of the remaining four person or company is conducting any scheme,
participants. device, or enterprise for obtaining money or
property of any kind through the mails by
Foreseeing the extensive use of the mails not only as means of false or fraudulent pretenses,
amongst the media for publicizing the contest but also representations, or promise, forbid the issue or

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 payment by any postmaster of any postal and second, whether the proposed "Caltex Hooded
money order or telegraphic transfer to said Pump Contest" violates the Postal Law. We shall take
person or company or to the agent of any such these up in seriatim.
person or company, whether such agent is
acting as an individual or as a firm, bank, 1. By express mandate of section 1 of Rule 66 of the old
corporation, or association of any kind, and may Rules of Court, which was the applicable legal basis for
provide by regulation for the return to the the remedy at the time it was invoked, declaratory relief
remitters of the sums named in money orders is available to any person "whose rights are affected by
or telegraphic transfers drawn in favor of such a statute . . . to determine any question of construction
person or company or its agent. or validity arising under the . . . statute and for a
declaration of his rights thereunder" (now section 1,
The overtures were later formalized in a letter to the Rule 64, Revised Rules of Court). In amplification, this
Postmaster General, dated October 31, 1960, in which Court, conformably to established jurisprudence on the
the Caltex, thru counsel, enclosed a copy of the contest matter, laid down certain conditions sine qua
rules and endeavored to justify its position that the non  therefor, to wit: (1) there must be a justiciable
contest does not violate the anti-lottery provisions of controversy; (2) the controversy must be between
the Postal Law. Unimpressed, the then Acting persons whose interests are adverse; (3) the party
Postmaster General opined that the scheme falls within seeking declaratory relief must have a legal interest in
the purview of the provisions aforesaid and declined to the controversy; and (4) the issue involved must be ripe
grant the requested clearance. In its counsel's letter of for judicial determination (Tolentino vs. The Board of
December 7, 1960, Caltex sought a reconsideration of Accountancy, et al., G.R. No. L-3062, September 28,
the foregoing stand, stressing that there being involved 1951; Delumen, et al. vs. Republic of the Philippines, 50
no consideration in the part of any contestant, the O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al.,
contest was not, under controlling authorities, G.R. No. L-8964, July 31, 1956). The gravamen of the
condemnable as a lottery. Relying, however, on an appellant's stand being that the petition herein states
opinion rendered by the Secretary of Justice on an no sufficient cause of action for declaratory relief, our
unrelated case seven years before (Opinion 217, Series duty is to assay the factual bases thereof upon the
of 1953), the Postmaster General maintained his view foregoing crucible.
that the contest involves consideration, or that, if it
does not, it is nevertheless a "gift enterprise" which is As we look in retrospect at the incidents that generated
equally banned by the Postal Law, and in his letter of the present controversy, a number of significant points
December 10, 1960 not only denied the use of the mails stand out in bold relief. The appellee (Caltex), as a
for purposes of the proposed contest but as well business enterprise of some consequence, concededly
threatened that if the contest was conducted, "a fraud has the unquestioned right to exploit every legitimate
order will have to be issued against it (Caltex) and all its means, and to avail of all appropriate media to
representatives". advertise and stimulate increased patronage for its
products. In contrast, the appellant, as the authority
Caltex thereupon invoked judicial intervention by filing charged with the enforcement of the Postal Law,
the present petition for declaratory relief against admittedly has the power and the duty to suppress
Postmaster General Enrico Palomar, praying "that transgressions thereof — particularly thru the issuance
judgment be rendered declaring its 'Caltex Hooded of fraud orders, under Sections 1982 and 1983 of the
Pump Contest' not to be violative of the Postal Law, and Revised Administrative Code, against legally non-
ordering respondent to allow petitioner the use of the mailable schemes. Obviously pursuing its right
mails to bring the contest to the attention of the aforesaid, the appellee laid out plans for the sales
public". After issues were joined and upon the promotion scheme hereinbefore detailed. To forestall
respective memoranda of the parties, the trial court possible difficulties in the dissemination of information
rendered judgment as follows: thereon thru the mails, amongst other media, it was
found expedient to request the appellant for an
In view of the foregoing considerations, the advance clearance therefor. However, likewise by virtue
Court holds that the proposed 'Caltex Hooded of his jurisdiction in the premises and construing the
Pump Contest' announced to be conducted by pertinent provisions of the Postal Law, the appellant
the petitioner under the rules marked as Annex saw a violation thereof in the proposed scheme and
B of the petitioner does not violate the Postal accordingly declined the request. A point of difference
Law and the respondent has no right to bar the as to the correct construction to be given to the
public distribution of said rules by the mails. applicable statute was thus reached. Communications in
which the parties expounded on their respective
The respondent appealed. theories were exchanged. The confidence with which
the appellee insisted upon its position was matched
The parties are now before us, arrayed against each only by the obstinacy with which the appellant stood his
other upon two basic issues: first, whether the petition ground. And this impasse was climaxed by the
states a sufficient cause of action for declaratory relief; appellant's open warning to the appellee that if the

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proposed contest was "conducted, a fraud order will Nor is it accurate to say, as the appellant intimates, that
have to be issued against it and all its representatives." a pronouncement on the matter at hand can amount to
nothing more than an advisory opinion the handing
Against this backdrop, the stage was indeed set for the down of which is anathema to a declaratory relief
remedy prayed for. The appellee's insistent assertion of action. Of course, no breach of the Postal Law has as yet
its claim to the use of the mails for its proposed contest, been committed. Yet, the disagreement over the
and the challenge thereto and consequent denial by the construction thereof is no longer nebulous or
appellant of the privilege demanded, undoubtedly contingent. It has taken a fixed and final shape,
spawned a live controversy. The justiciability of the presenting clearly defined legal issues susceptible of
dispute cannot be gainsaid. There is an active immediate resolution. With the battle lines drawn, in a
antagonistic assertion of a legal right on one side and a manner of speaking, the propriety — nay, the necessity
denial thereof on the other, concerning a real — not a — of setting the dispute at rest before it accumulates
mere theoretical — question or issue. The contenders the asperity distemper, animosity, passion and violence
are as real as their interests are substantial. To the of a full-blown battle which looms ahead (III Moran,
appellee, the uncertainty occasioned by the divergence Comments on the Rules of Court, 1963 ed., p. 132 and
of views on the issue of construction hampers or cases cited), cannot but be conceded. Paraphrasing the
disturbs its freedom to enhance its business. To the language in Zeitlin vs. Arnebergh  59 Cal., 2d., 901, 31
appellant, the suppression of the appellee's proposed Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d.,
contest believed to transgress a law he has sworn to p. 869, to deny declaratory relief to the appellee in the
uphold and enforce is an unavoidable duty. With the situation into which it has been cast, would be to force
appellee's bent to hold the contest and the appellant's it to choose between undesirable alternatives. If it
threat to issue a fraud order therefor if carried out, the cannot obtain a final and definitive pronouncement as
contenders are confronted by the ominous shadow of to whether the anti-lottery provisions of the Postal Law
an imminent and inevitable litigation unless their apply to its proposed contest, it would be faced with
differences are settled and stabilized by a tranquilizing these choices: If it launches the contest and uses the
declaration (Pablo y Sen, et al. vs. Republic of the mails for purposes thereof, it not only incurs the risk,
Philippines, G.R. No. L-6868, April 30, 1955). And, but is also actually threatened with the certain
contrary to the insinuation of the appellant, the time is imposition, of a fraud order with its concomitant stigma
long past when it can rightly be said that merely the which may attach even if the appellee will eventually be
appellee's "desires are thwarted by its own doubts, or vindicated; if it abandons the contest, it becomes a self-
by the fears of others" — which admittedly does not appointed censor, or permits the appellant to put into
confer a cause of action. Doubt, if any there was, has effect a virtual fiat of previous censorship which is
ripened into a justiciable controversy when, as in the constitutionally unwarranted. As we weigh these
case at bar, it was translated into a positive claim of considerations in one equation and in the spirit of
right which is actually contested (III Moran, Comments liberality with which the Rules of Court are to be
on the Rules of Court, 1963 ed., pp. 132-133, citing: interpreted in order to promote their object (section 1,
Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, Rule 1, Revised Rules of Court) — which, in the instant
284 Pac. 350). case, is to settle, and afford relief from uncertainty and
insecurity with respect to, rights and duties under a law
We cannot hospitably entertain the appellant's — we can see in the present case any imposition upon
pretense that there is here no question of construction our jurisdiction or any futility or prematurity in our
because the said appellant "simply applied the clear intervention.
provisions of the law to a given set of facts as embodied
in the rules of the contest", hence, there is no room for The appellant, we apprehend, underrates the force and
declaratory relief. The infirmity of this pose lies in the binding effect of the ruling we hand down in this case if
fact that it proceeds from the assumption that, if the he believes that it will not have the final and pacifying
circumstances here presented, the construction of the function that a declaratory judgment is calculated to
legal provisions can be divorced from the matter of subserve. At the very least, the appellant will be bound.
their application to the appellee's contest. This is not But more than this, he obviously overlooks that in this
feasible. Construction, verily, is the art or process of jurisdiction, "Judicial decisions applying or interpreting
discovering and expounding the meaning and intention the law shall form a part of the legal system" (Article 8,
of the authors of the law with respect to its application Civil Code of the Philippines). In effect, judicial decisions
to a given case, where that intention is rendered assume the same authority as the statute itself and,
doubtful, amongst others, by reason of the fact that the until authoritatively abandoned, necessarily become, to
given case is not explicitly provided for in the law  (Black, the extent that they are applicable, the criteria which
Interpretation of Laws, p. 1). This is precisely the case must control the actuations not only of those called
here. Whether or not the scheme proposed by the upon to abide thereby but also of those in duty bound
appellee is within the coverage of the prohibitive to enforce obedience thereto. Accordingly, we entertain
provisions of the Postal Law inescapably requires an no misgivings that our resolution of this case will
inquiry into the intended meaning of the words used terminate the controversy at hand.
therein. To our mind, this is as much a question of
construction or interpretation as any other.
Page 3 of 6
It is not amiss to point out at this juncture that the Consequently as the appellant himself concedes, the
conclusion we have herein just reached is not without field of inquiry is narrowed down to the existence of the
precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., element of consideration therein. Respecting this
399, 117 A. 2d., 487, where a corporation engaged in matter, our task is considerably lightened inasmuch as
promotional advertising was advised by the county in the same case just cited, this Court has laid down a
prosecutor that its proposed sales promotion plan had definitive yard-stick in the following terms —
the characteristics of a lottery, and that if such sales
promotion were conducted, the corporation would be In respect to the last element of consideration,
subject to criminal prosecution, it was held that the the law does not condemn the gratuitous
corporation was entitled to maintain a declaratory relief distribution of property by chance, if no
action against the county prosecutor to determine the consideration is derived directly or indirectly
legality of its sales promotion plan. In pari materia, see from the party receiving the chance, but does
also: Bunis vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. condemn as criminal schemes in which a
2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. valuable consideration of some kind is paid
Scott, 15 N.J. Super. 124, 82 A. 2d., 903. directly or indirectly for the chance to draw a
prize.
In fine, we hold that the appellee has made out a case
for declaratory relief. Reverting to the rules of the proposed contest, we are
struck by the clarity of the language in which the
2. The Postal Law, chapter 52 of the Revised invitation to participate therein is couched. Thus —
Administrative Code, using almost identical terminology
in sections 1954(a), 1982 and 1983 thereof, supra, No puzzles, no rhymes? You don't need
condemns as absolutely non-mailable, and empowers wrappers, labels or boxtops? You don't have to
the Postmaster General to issue fraud orders against, or buy anything? Simply estimate the actual
otherwise deny the use of the facilities of the postal number of liter the Caltex gas pump with the
service to, any information concerning "any lottery, gift hood at your favorite Caltex dealer will dispense
enterprise, or scheme for the distribution of money, or from — to —, and win valuable prizes . . . ." .
of any real or personal property by lot, chance, or
drawing of any kind". Upon these words hinges the Nowhere in the said rules is any requirement that any
resolution of the second issue posed in this appeal. fee be paid, any merchandise be bought, any service be
rendered, or any value whatsoever be given for the
Happily, this is not an altogether untrodden judicial privilege to participate. A prospective contestant has
path. As early as in 1922, in "El Debate", Inc. vs. Topacio, but to go to a Caltex station, request for the entry form
44 Phil., 278, 283-284, which significantly dwelt on the which is available on demand, and accomplish and
power of the postal authorities under the submit the same for the drawing of the winner. Viewed
abovementioned provisions of the Postal Law, this from all angles or turned inside out, the contest fails to
Court declared that — exhibit any discernible consideration which would
brand it as a lottery. Indeed, even as we head the stern
While countless definitions of lottery have been injunction, "look beyond the fair exterior, to the
attempted, the authoritative one for this substance, in order to unmask the real element and
jurisdiction is that of the United States Supreme pernicious tendencies which the law is seeking to
Court, in analogous cases having to do with the prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291),
power of the United States Postmaster we find none. In our appraisal, the scheme does not
General, viz.: The term "lottery" extends to all only appear to be, but actually is, a gratuitous
schemes for the distribution of prizes by distribution of property by chance.
chance, such as policy playing, gift exhibitions,
prize concerts, raffles at fairs, etc., and various There is no point to the appellant's insistence that non-
forms of gambling. The three essential elements Caltex customers who may buy Caltex products simply
of a lottery are: First, consideration; second, to win a prize would actually be indirectly paying a
prize; and third, chance. (Horner vs. States consideration for the privilege to join the contest.
[1892], 147 U.S. 449; Public Clearing House vs. Perhaps this would be tenable if the purchase of any
Coyne [1903], 194 U.S., 497; U.S. vs. Filart and Caltex product or the use of any Caltex service were a
Singson [1915], 30 Phil., 80; U.S. vs. Olsen and pre-requisite to participation. But it is not. A contestant,
Marker [1917], 36 Phil., 395; U.S. vs. Baguio it hardly needs reiterating, does not have to buy
[1919], 39 Phil., 962; Valhalla Hotel anything or to give anything of value.1awphîl.nèt
Construction Company vs. Carmona, p.
233, ante.) Off-tangent, too, is the suggestion that the scheme,
being admittedly for sales promotion, would naturally
Unanimity there is in all quarters, and we agree, that benefit the sponsor in the way of increased patronage
the elements of prize and chance are too obvious in the by those who will be encouraged to prefer Caltex
disputed scheme to be the subject of contention. products "if only to get the chance to draw a prize by

Page 4 of 6
securing entry blanks". The required element of there is no sale of anything to which the chance offered
consideration does not consist of the benefit derived by is attached as an inducement to the purchaser. The
the proponent of the contest. The true test, as laid contest is open to all qualified contestants irrespective
down in People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. of whether or not they buy the appellee's products.
(Supp.) 788, is whether the participant pays a valuable
consideration for the chance, and not whether those Going a step farther, however, and assuming that the
conducting the enterprise receive something of value in appellee's contest can be encompassed within the
return for the distribution of the prize. Perspective broadest sweep that the term "gift enterprise" is
properly oriented, the standpoint of the contestant is all capable of being extended, we think that the appellant's
that matters, not that of the sponsor. The following, pose will gain no added comfort. As stated in the
culled from Corpus Juris Secundum, should set the opinion relied upon, rulings there are indeed holding
matter at rest: that a gift enterprise involving an award by chance,
even in default of the element of consideration
The fact that the holder of the drawing expects necessary to constitute a lottery, is prohibited (E.g.:
thereby to receive, or in fact does receive, some Crimes vs. States, 235 Ala 192, 178 So. 73; Russell vs.
benefit in the way of patronage or otherwise, as Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88;
a result of the drawing; does not supply the State ex rel. Stafford vs. Fox-Great Falls Theater
element of consideration. Griffith Amusement Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52).
Co. vs. Morgan, Tex. Civ. App., 98 S.W., 2d., But this is only one side of the coin. Equally impressive
844" (54 C.J.S., p. 849). authorities declare that, like a lottery, a gift enterprise
comes within the prohibitive statutes only if it exhibits
Thus enlightened, we join the trial court in declaring the tripartite elements of prize, chance and
that the "Caltex Hooded Pump Contest" proposed by consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142,
the appellee is not a lottery that may be 113 Colo., 326; D'Orio vs. Jacobs, 275 P. 563, 565, 151
administratively and adversely dealt with under the Wash., 297; People vs. Psallis, 12 N.Y.S., 2d., 796; City
Postal Law. and County of Denver vs. Frueauff, 88 P., 389, 394, 39
Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann. Cas., 521; 54
But it may be asked: Is it not at least a "gift enterprise, C.J.S., 851, citing: Barker vs. State, 193 S.E., 605, 607, 56
or scheme for the distribution of money, or of any real Ga. App., 705; 18 Words and Phrases, perm. ed., pp.
or personal property by lot, chance, or drawing of any 590-594). The apparent conflict of opinions is explained
kind", which is equally prescribed? Incidentally, while by the fact that the specific statutory provisions relied
the appellant's brief appears to have concentrated on upon are not identical. In some cases, as pointed out in
the issue of consideration, this aspect of the case 54 C.J.S., 851, the terms "lottery" and "gift enterprise"
cannot be avoided if the remedy here invoked is to are used interchangeably (Bills vs. People, supra); in
achieve its tranquilizing effect as an instrument of both others, the necessity for the element of consideration
curative and preventive justice. Recalling that the or chance has been specifically eliminated by statute.
appellant's action was predicated, amongst other bases, (54 C.J.S., 351-352, citing Barker vs. State, supra;
upon Opinion 217, Series 1953, of the Secretary of State ex rel. Stafford vs. Fox-Great Falls Theater
Justice, which opined in effect that a scheme, though Corporation, supra). The lesson that we derive from this
not a lottery for want of consideration, may state of the pertinent jurisprudence is, therefore, that
nevertheless be a gift enterprise in which that element every case must be resolved upon the particular
is not essential, the determination of whether or not phraseology of the applicable statutory provision.
the proposed contest — wanting in consideration as we
have found it to be — is a prohibited gift enterprise, Taking this cue, we note that in the Postal Law, the term
cannot be passed over sub silencio. in question is used in association with the word
"lottery". With the meaning of lottery settled, and
While an all-embracing concept of the term "gift consonant to the well-known principle of legal
enterprise" is yet to be spelled out in explicit words, hermeneutics noscitur a sociis — which Opinion 217
there appears to be a consensus among lexicographers aforesaid also relied upon although only insofar as the
and standard authorities that the term is commonly element of chance is concerned — it is only logical that
applied to a sporting artifice of under which goods are the term under a construction should be accorded no
sold for their market value but by way of inducement other meaning than that which is consistent with the
each purchaser is given a chance to win a prize (54 nature of the word associated therewith. Hence, if
C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th lottery is prohibited only if it involves a consideration,
ed., p. 817; Ballantine, Law Dictionary with so also must the term "gift enterprise" be so construed.
Pronunciations, 2nd ed., p. 55; Retail Section of Significantly, there is not in the law the slightest
Chamber of Commerce of Plattsmouth vs. Kieck, 257 indicium of any intent to eliminate that element of
N.W., 493, 128 Neb. 13; Barker vs. State, 193 S.E., 605, consideration from the "gift enterprise" therein
56 Ga. App., 705; Bell vs. State, 37 Tenn. 507, 509, 5 included.
Sneed, 507, 509). As thus conceived, the term clearly
cannot embrace the scheme at bar. As already noted, This conclusion firms up in the light of the mischief
sought to be remedied by the law, resort to the
Page 5 of 6
determination thereof being an accepted extrinsic aid in
statutory construction. Mail fraud orders, it is axiomatic,
are designed to prevent the use of the mails as a
medium for disseminating printed matters which on
grounds of public policy are declared non-mailable. As
applied to lotteries, gift enterprises and similar
schemes, justification lies in the recognized necessity to
suppress their tendency to inflame the gambling spirit
and to corrupt public morals (Com. vs. Lund, 15 A. 2d.,
839, 143 Pa. Super. 208). Since in gambling it is inherent
that something of value be hazarded for a chance to
gain a larger amount, it follows ineluctably that where
no consideration is paid by the contestant to
participate, the reason behind the law can hardly be
said to obtain. If, as it has been held —

Gratuitous distribution of property by lot or

chance does not constitute "lottery", if it is not
resorted to as a device to evade the law and no
consideration is derived, directly or indirectly,
from the party receiving the chance, gambling
spirit not being cultivated or stimulated thereby.
City of Roswell vs. Jones, 67 P. 2d., 286, 41
N.M., 258." (25 Words and Phrases, perm. ed.,
p. 695, emphasis supplied).

we find no obstacle in saying the same respecting a gift

enterprise. In the end, we are persuaded to hold that,
under the prohibitive provisions of the Postal Law which
we have heretofore examined, gift enterprises and
similar schemes therein contemplated are condemnable
only if, like lotteries, they involve the element of
consideration. Finding none in the contest here in
question, we rule that the appellee may not be denied
the use of the mails for purposes thereof.

Recapitulating, we hold that the petition herein states a

sufficient cause of action for declaratory relief, and that
the "Caltex Hooded Pump Contest" as described in the
rules submitted by the appellee does not transgress the
provisions of the Postal Law.

ACCORDINGLY, the judgment appealed from is affirmed.

No costs.

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