This lawsuit was instituted when the New Jersey State Lottery Commission refused to honor plaintiff's claim that he was the $50,000 winner of the June 24, 1971 weekly lottery drawing. Unfortunately, plaintiff was unable to produce the winning lottery ticket. The Lottery Commission now moves to dismiss the complaint for failure to state a claim upon which relief can be granted, and, accordingly, the following factual allegations may be accepted as true for the purpose of the motion:
1. Prior to June 24, 1971 plaintiff purchased from Theodore McKeown, owner of the Edgar Diner, Linden, New Jersey, who was a lottery ticket sales agent, a strip of ten tickets for the weekly drawing to be held on June 24, 1971.
2. On said date the $50,000 winning ticket number was announced as 965321.
3. The next day plaintiff went to the diner in the morning and asked a waitress to check his string of tickets because he couldn't see the numbers clearly without his glasses. She examined the tickets and let out a joyous shout, exclaiming: "You've won $50,000." She detached the winning ticket, gave it to plaintiff and he verified the fact that it was the winning number, 965321. Six or seven persons, including the owner, were in the diner at that time, all witness to the event.
4. Later in the day plaintiff brought the ticket home to his mother and asked her to hold it for safekeeping until he could get some tax advice as to how to claim and report the winnings.
5. On July 3, 1971 it was reported in the Elizabeth Daily Journal that plaintiff had won the top prize at the June 24, 1971 drawing after purchasing the ticket at the Edgar Diner.
6. Some time later it was discovered that plaintiff's mother had inadvertently thrown away the winning ticket along with an accumulated batch of old worthless tickets.
7. On August 31, 1971 the executive director of the Lottery Commission rejected plaintiff's claim without physical production of the winning ticket.
8. The records of the Lottery Commission indicate that ticket number 965321, worth $50,000, is still outstanding.
Although plaintiff's lamentable predicament evokes much sympathy, there is a lack of legal precedent to support his contention that the Lottery Commission must honor his claim. Because this is a case of first impression a review of the organic and legislative provisions is in order.
N.J. Const. (1947), Art. IV, § VII, par. 2, prohibited gambling of any kind from being authorized by the Legislature unless the specific kind had first been submitted to the people and approved by a majority vote at a statewide general referendum. In 1969 that clause of ...