The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-03-24
Superior Court-special fern.
JAMES GORDON BENNETT vs.. THE AMERICAN ART



UNION.
Before Judge Duer
MAReH 2S-Mr SANFORD counsel Cor plaintiff. con-
n~ed his argument in support OF tho motion for an In
function order perpe tualy restraining the Art Union
disposng Of works Of art and other property
He called the attention Of the Court argument adj
drsed 10 the manager. Of the Art Union by his Honor
Judge DAILY 81 their number the occasion Of his
rrxirng from his scat q member of their BODY and
which was published in Of the papers Monday
morning bearing with great force and clearness the
views entertained by that distinguished individual and
also the views which the managers inclined to
adopt the basis which their proceedings are trans
acted This argument ne would proceed consider and
reply to There two points involved in the oonsde-
ration Of this question First whether the Legislature
did by an express or implied act confer authority
this association to distribute any portion Of their pro-
pery ty lot and then whether the Legislature had
the power to egalize this distribution The important
question a. whether the Legislature intended to
peal the provisions Of the Revised Statutes against lot
tsries and gambling in force when this act passed
This the important inquiry here and the court for the
ferent what be the ground Of in
vesation in determining whether the act could take
any effect at all In respect to the question whether
subsequent statute should be deemed TO be repeal of
previous relating TO the subject he would
refer to Gin Johnson's Reports. page 1, where the
general doctrine stated that If laws and statutes
TO be contrary to one another yet by Interpretation
they may stand together they shall stand. The
question for consideration here is did the Legislature,
far their intent BIO discovered from the
manner in which the statute is passed, intend to
repeal, far this association is concerned the
previous legislation Of this State on tho subject
Of rafiing and lotteries, In considering this subject
counsel traced the legislation against gambling from an
act passed by the Colonial Parliament in 172l another
passed by tho Parliament in 1877 another 1859
down 10 the Revised Statutes Of 1880 ALSO va
rious acts of Parliament designed to repress gambling
in Great Britain lie contendcd that Inference could
be drawn from the act OF l44 that tho Legislature in
tended 10 cgnlize the distribution by lot and that on
the contrary the only result the court could arrive
respect TO that the trainers of the the
managers Of the association attempted to get sort Of
implied sanction to Of illegal proceeding which
they having carried on from 1910 to
1S and under the apprehension that tho Legislature
would not grant any authority to make dstri
button OF property this way they sought to obtain
covertiy of implied sanction by making use of the
expression that the time Of annual distribution should
take place certain day which named This was
change of time for the distribution which the
Legislature it would seem, had been induced suppose
had been already authorized conducted in a way
not prohibited by law. But there intention Of
departing from that great design, strongly manifested
ana rgidy enforced for preventing the distribution of
property by any such contrvance He therefore submit
ted that the law of 1874 did Not attempt make any
change in the provisions of the Revised Statutes nor to
create any power in this association dispose it's pro-
perry in prohibited by the laws The learned
Judge. in the argument adycrted to- saws 1.-The
act Of 1874 declares that the annual distribution
provided for in the Constitution shall take place upon
day certain, which is named This clause the Recorder
declares is void for uncertainty lie has not said in
what respect it is but it is to be presumed that he
means that II Is because it does not specify tho
in which the distribution is to be made Now it is fla.
miar rule that when statute refers in this an
caisfisg Poon that the prorton referred much
OF as may be necessary TO the full understanding of
the statute, becomes much part Of the as if
had been cced or enacted in many words and it may
always he established by extrnsc proof for the purpose
of showing what the Legislature intended and meant
The whole scope of the Legislature in passing this
Of lS44 been the change of the time
OF doing act which they considered as authorized
to he done; but il is different question whe-
ther the Court will hold that there has been an
intentional departure Of the Legislature from that
long course of previous legislation and that strong
y established course of public policy Counsel referred
for the rule of construction to Smiths Commentaries on
The Statute Law sec 5 s. whore it stated that repcs
OF existing statutes by implication greatly favor
ed The question then arises whether il the legislature
had repealed 10y implication the Revised Statutes so far
as thus association concerned they had the constitu-
tional authority to do soy In approaching the
tion OF this question the learned Judge proceeds to re-
mark-Whcn the constitution OF 1921 declared that no
lottery should thereafter authorized in this state il
referred 10 thing then existing well known and special
ly authorized and regulated by law / dissent from
these premises, though admit that when that consttu-
tlon was adopted. there was but thing known aud
recognized by law but utterly deny that because there
was hu' one evil remaining which to be extingushcd
that the intention permit the Legislature to re-
vc these evils which had been extnguished by previous
Legislation This is the argument used by the learned
Judge that because in 1S2l there lottery exist
ing public lotteries authorized by laws in the State
and under the management Of the State, there
intention TO prevent legislation from afterwards ere
ating all those species OF private lotteries which had been
hitherto deemed be pubic nu'sances This i tho basis
on which the arguntn is kidd aud submit that IL only
necessary to state the ground which such argumo mt
must ret TO show it entire and absolute fallacy The
broad principle of the constitution OF 1921 proven
this spirit Of gaming and TO preclude the Legislator,
from authorizing any gaming which would dispose
auSc
only one species of lottery then known there
intention the part Of tho trainers Of the constitution
permit the Legislature to isgaize other forms l deny
tbs pr misses When the of the constitution in
serted this prohibition in the fundamental law they design
ed 70 prevent the Legislature from authorizing such
Of property whether regulated by State a,
thSity put up 10y belonging to one
acquired by several individuals by common con
trbution The learned Judge proceeds 10 remark These
lotteries the existence Of which to period rs
The DAYS If the Romans which have existed in
nearly Every ciyzSd country, and stn exist in some
Of the States Of this Union believed to be injurious
to public morals" Now, ! have gone back to the
day. Of the Re do | know. can dis over
from what source he obtained his information of
the practices Of the Romans except he refers TO that
incident. known to all Of Us, when the Roman
soldiers made partition Of certain garments by
I0 IL is undoubtedly enough to prove the remark
THAI cries existed in the days Of the Romans refer
To tina: wei known and memorable occason but II ought
not corainy to commend this vice that il was exercised
on that occasion among the Romans The learned
Judge goes to say with reference to lotteries That
their natural tendency. in fact. to lead men TO
squander their substance in the dclusye anticipation of
acquiring sudden and enormous wealth which in the
great majority Of instances could but end in disap
POINTING mt. poverty. ruin The objection to them,
sir Is broader than that 1t Is the general demoraliza
ton II the community which they tend that renders
them rcprehensibc but the learned Judge seeks a
higher aud more cxraneou example to illustrate the
evils which this prohibition Intended 10 prevent lie
says =" The frauds pracccd by the getters Of lot
tcres nado necessary in country to subject them
10 public regulation and in many countries they
and are stu carried on BY government Such was the
caSe in this State They placed under the control
managers appointed ty The state who were allowed
Is per cent upon the sum raised The price OF tickets
was regulated by certain scheme The prizes paid
under the warrant the Comptroller and the proceeds
or profits applied by the State to various purposes
This very true respects the lotteries existing 1871
but it applies with with far greater power to other pe
ccs Of ettories and have shown that the evils were
deemed TO b. far more wide and pernicous than those
which the learned Judge here refers TO. We have hero
all hese schemes and the only difference in them is that
the profit 20 into the pockets Of the managers
lie goc on to ray But though their management by the
State prevented frauds. the evil TO the community
manned The temptation was still held out TO the people
to sopandr their substance in the deusvc hope Of
curing wealth. II was in fact. system Of gambling,
regulated by law wise different in its effect in upon
indiyiduals than the stalking Of Of money pro-
perty upon the hazard Of card in the nightly he'll
gaming house II 1t this perncious system that the
cons utiona prohibition aimed TO prevent the state
thereafter from lcgaznC this mode Of sdyenturng for
wealth. IL IL not merely for accession Of wealth tina
men indulge In this vice Men play for very small stakes
and think THAT innocent because Ii do not risk much
and not peril all their interests in It He says -
lottery fund raised by individuals by the State"