The opinion
McALLISTEB, C. J.,
dissenting.
The holding in McFadden v. Bain, 162 Or 250 , 91 P2d 292 (1989), is directly contrary to the holding of the majority in the case at bar. The parties have *291 stipulated that many of those who qualify for the drawings are customers of the .store and purchase groceries, 'both when they register and again when they return each week to have their tickets validated. The consideration for this lottery is paid by those who purchase groceries, just as in McFadden the consideration for the lottery was paid by those who purchased theatre tickets. In the case at bar, as in McFadden , opportunity was given to some to participate in toe drawings without buying anything, either groceries, or theatre tickets.
In McFadden , at 255 of 162 Or, this court said:
“To constitute a lottery, it is not necessary for all participants to pay for their chances, but it is sufficient if some do though many do not pay a valuable consideration. The legal effect of the transaction is not changed by the fact that some do not pay. If it is a lottery as to those who do pay, it necessarily is a lottery as to those who do not pay for their chances.
“As was said in Commonwealth v. Wall, supra [3NE2d28],‘* * * a game does not cease to be a lottery because some, or even many, of the players are admitted to play free, so long as others continue to pay for their chances. ('Citing authorities.) So here the test is not whether it was possible to win .without paying for admission to the theatre. The test is whether that group who did pay for admission were paying in part for the chance of a prize.’
“See also Glover v. Malloska, 238 Mich. 216, 219 , 213 N. W. 107 , 52 A. L. R. 77, where the above was quoted with approval.”
In my opinion McFadden v. Bain, supra, was properly decided and controls the disposition of the ease at bar. I dissent.
Sloan, J. concurs in 'this dissent.