The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-02-16
COuru ~ gsonsrRI sessions.
Before the Recorder and Aldermen Tweed and Compton
THE HERALD AND THE AMERICAN ART UNION

Aldermen Tweed compton.
The HERALD AND TIKI AMERICAN ART UNION
MOTION TO QuAsH TnK INDICTMENT.
sAIrRDAr Feb n-In this case Mr. Inward Sandford
and MT dabraith appeared for tbs defendant and
moved to quah the indictment found by the LAST Grand
Jury aganst tho editor Of the HERALD, and wkish was
pubshed at length on Saturday The alleged libel said
action of the Board Of Directors and Managers Of the Art
Union and the complaint that certain persons
therein reflected upon and It seemed that two excep-
statement Of the amount OF funds received, and the
failure to make the distribution which by their byeaws
ought to be made secondly that the fund, which
ought to have been applied tothe purchase Of works
to be distributed had been apple to other purposes Tho
observations we're Of alleged libel rsad
and drgrsoe Of the said Robert Kelly and other persons
(naming tho director0 The iuducemsnt to tho libel
ten was incorporated. The first passed in l840
simple and innocent enc" To incorporate the Apollo
Association for the Promotion Of the Fine Arts in tho
United States.n The second, which passed ia
IS4s, changed the name. His first point would bs
that these aOts set out BY way Of induoement,
taken in connection with the proceedings had
der them, and which evidenced the purpose for
which they were obtained, and which acts
material parts of tha indictment for the sole pur
po.e Of obtaining an obi ct which WAS uion,
and Illegal and that this portion Of the in ictm.n could
never be made to sustain any proceeding Ia court OF
urge against this portion OF the indictment coua,e
would be compelled TO admit great ingenuity had been
exhibited In conceairg the real purpose Of the aot from
the view OF the Legislature aud obtaining the
in the dark Ii it had been exposed 1t was not at all pos
sible that any Legislature would have attem to
law so clearly In violation OF the constitution as this
Was at the tfna IL passed He would refer TO
the original act which lie face very innocent and
p.ssewortby far as 1t appeared 1t wss passed Th
May 1870 and authorized the Of tho ap,
10 Association foi the Promotion OF the Fine Arts How
the funds property to be distributed did not
pear at all. The Court would perceive there WAS no
power whatever to distribute dispose Of the funds
The corporation had mode of acquiring capital but
by voluntary contributions aud the admission OF such
members rs chose co subscribe. There nobing in
the law which appeared to contemplate a distribution
winding up the contrary II seemed TO point at great
pefmsnence aod accumulation OF Iuud for it authorizes
them beginning with capital to hold real ana perSons
tate of whion the iocomep sh juid not exceed ten
Thousand dollars thus looking to cap tai OF
drsd thousand At the timc that law passed the
constitution Of l82 In force ana in article
tion III, OF that constitution it was declared that no
lottery should thereafter be authorized Ia this Stats
and the Legislature should pass laws TO prevent the sale
of all lottery tickets within this State except in lotteries
slresdy provided for by such lawn That was the
stuton and the sw mentioned kind Of distrlousc
much sSs authorized this and the contrary eeemea
20 contemplate an ACCUMULATION In tho Revised
Statutes psge eos and section ~ it was enacted that
person ehoud "set up, or propose any money, goods
chattes or things in action TO be rslad for TO be
distributed by lot, chance TO any person who shall
have paid contracted to pay any valuable consdera
tim for ths chance OF obtaining euch money goods or
things in nction This statute was not intended co bs
repealed inringed upon by the incorporating the
Apollo Association Section a. of the same, enacted
that person unauthorized By special laws for that
purpose should within this State open set foot carry
on OF promote or draw publicly Or privately any lottery
game or device OF chance of any nature kind whas
soever or by whatever name 1t may be caled go This
lottery fell within the 22t section the 17h was aimed at
the persons who should act in carrying ont the
object Of such an association The Court would see
that the practise of the association had bsen In
violation OF the constitution and the laws Of the Stsa
and it after deemed necessary gain soms
sancton tf their proceedings, and here the ingsnu-
ity was shown. the dsouUent by which this
done beautiful specimen OF oonslomeration Of
phrases intended to conceal ths real object OF leai
tive enactment In 1s44 they obtained sct the rst
clause of which .m ply change the the
Apollo Association for the Promotion OF the Fine Arts in
the Urited States to the American Art Union To this
or course there objection; but the second causs
mi aimed the whole though ostensioy merely TO
change the time distribution and the election Of o
1t the one under which they assumed the dis
tibuaon by lot authorized Tbs words . rhe
of works Of art belonging to the association
provided for the thereof and this the
ret word in the statute book hintng st the mode Of dis
trbution Tho Legislature had, no doubt passed shi
act bindy without seeing what that constitution was
but they incorporate 1t In the act by thus referring to it,
He assumed for the honesty Of the Legislature that theg
did not know what that constitution was or the modso
provided for in order to shield them from
the cpprobrium which must rest upon them otnerwiss
for passing suoh law. The whole was an unnecessary
piece Of legslaton except for this concealed ebec-
1t rst simply changed the nams; secondly conferred
sanc tion the distribution which they had power
do and thirdly changed the time Of electirg officers
woud refer to the constitution Of the sssocs
tlon; from that the court would see in Article 10
MIR Blunt objected. The constitution Was not sst out
In the Indictment.
sttutiop, the Act which brought forward on the
Indictment and which could not be understood without
Tne Corstitutfou therefore, became materlei part
The court asssnting, he (Mr. 81 proceeded TO read
Article TO- as fellows -
The net OF the Institute shall be applied ars
WORK. american s snDa.y Which shah ss desrSated
equally 70 Al the members tsr eaeh year ssspsosysy
arr p,ns, 70 30 SsSascS ID M ::
each member having share for every avs dsilss
This introduction OF the constitution WAS the nrst
word that appeared the statutes In reference to the
mode OF distribution. In 1s7 ut the request OF this
association mother act was obtained to amend
these Actnot in reference TO the mode OF distribution
at slthat still covers-but the directors had sub
jected themselves 10 be voted for annually and, unless
they could preserve the confidence Of the subscribers
they wers liable TO be turned out They had now ac-
qured good deal OF property ana were at the head OF
institution with prosperous income aud y wa In
10 be to be oussd they Therefore
obtained prevent the minority Of ths directors
the shareholders diiSdgips them. Tne amcadnaess
was:--
The business cf tho said corporation shs be sonduds BY
. Tnitsse mAnagemsha 10 consist Of tseny ono
hers who not srtist who shall % chosen ~
meeting there shall 30 chosen wentI one
lo into Oss the dst class snail hold
ysst the sseeha osss saO yse an sS saa oas s.s
plsots.
Thu. the csntroi of the corporation was held IA their
hands muet pa yssGs before the mRjory CT ae
bosid when ary dissatisfaction mighs svse woui 90
This wss the last piece q eesiaton on ths suo
iect The fret aot was oetsusblF ior landaols pur-
pose disclosing illegal feature They tnen appear 20
b virlklt1u CI law. Ine ftcyuJ - W tAnCtp1
be mode of cs.rbutlopnot by describing itbu5 ssil
keeping = ceroe1d and only ny referring 20 tue
ttitptoa Nov, this act so far as tue o'trbu'ion n
coEcsrued Is utterly void contrary to tha constitution
" is2l--it strictly lottery, gaming legally and
morally The exception in the Kevi,ed Statutes a, -
lotteries suthozsd by special law only Intended -
.mbrsoe the exceptions thoss mentions la
the constitution ana had no aiGsioD 90 special law
passed afterwards In the OF the People vs. etny
yesent WendeE AIS the defendant WAS Indicted for
teli1g tickets lottery unauthorized by law aud tbs
jury fosnd pecia verdict that zoe lottery ws sathor'
iged by Stse OF Delaware. Upon this special
cict before the eupreme Court and Chief
Justice cited the constitution Of 1871 (as
ont aud held tbat the exception only extended to
oteres suthoriEed by laws then p force In this state
sHd tie words thereafter obligatory upoa the Leis
ature and that all Lotteries swept out by the ttst
1888 lie raid, thsn that this indictment ~ far
sct out nj tery failed in the iRducement winch
tssentis 10 the indictment 1his prinopls quite IA
miller BE- need oHiy aude to the OF Miller Max
well in 10 Wendell, iirst Gaze, where 10 iaia dogn
that where sxtinsio matter TO poin. H. 1t
ust be frch can be proved legally aud this ground
Ne tnbmitt d, the whole indictment mutt be qussIed
The publication Of which thty com pair sfger setpg up