The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-22
tt f ART UNION.


Tho Opinion or tho Court Of Appeals.
THE GOVERNORS OF THE ALMsHoUsE or THE CITY
AND COUNTY OF NEW YORK VS.. THE AMERICAN
RUGGLEs, Chief Judge, delivered the opinion Of
the cour-The plaintiffs overseers Of the poor OF
the city of New York claim to recover from the de-
PENDANTS penalty of three hundred dollars, being
three times the value Of picture numbered 70, and
entitled 1.-THE Huguenots going to worship In Charles
ton Harbor," together with the further sum OF ten
dollars The statute under which this recovery Is claim
ed is in these words:-"Sect g. No person shall set
up or propose any money goods chates, or things in
action to be ratified for or to be distributed by lot or
chance to any person who shall have paid or con-
tracted to pay any valuable consideration for the
chance of obtaining any such money, goods, or
things in action. Any person offending against this
provision shall forfeit three times the Of money
or vane OF the articles set up together with the
sum of ten dollars, to be recovered by and in the
of the of the poor Of the town where
the offence was committed" The picture above
mentioned, together with three hundred and nine
Others about to be distributed by lot or chance
in pursuance of the constitution and bylaws of the
corporation Of the American Art Union and were by
public advertisement announced and offered to be
distributed by lot as aforesaid among thirteen thou
sand members and subscribers This took place i'm
mediatey previous to the commencement of the legal
proceeding to recover the penalty in question The
picture No. 20 was Of the value of hundred dol
lars. Pictures are chattels The Art Union proposed
to distribute them by lot or chance among its sub
scribers. Each subscriber had paid five dollars,
which made him q member of the corporation, and
entitled him to chance, in such distribution, of OBJ
tanning the picture in question as a prize. The
tribute the pictures by lot is therefore, violation of
the statute above rected unless this association has
some special authority which exempts them from
its operation. The act Of January 20, 1874, en-
titled Gan act to amend the act to incorpo-
rate the apollo Association for the promotion
Of the fine arts, passed May Z, $780," Claws
OF le44 p -, is supposed to create such exemption,
and to operate as repeal of the statute against raf
fling and lotteries, SO far as respects the American
Art Union. The American Art Union was original
ly Incorporated by the name of the Apollo Associa
ton, with power, among other things, of making
such constitution, bylaws and regulations they
should judge proper for certain enumerated purposes
The fourth section Of the act directed the annual
election of officers, to be held on the third Monday
give, the cooperation the power Of distributing pic
lures other property by lot of regulating such
distribution by their constitution or bylaws. The
corporation made and adopted constitution on the
23d OF December, l843; and by its tenth section it
provided that at the annual meetings of the asso
citation in December the works of art purchased dur
ing the year, should become by lot, publicly deter
mined, the property Of individual members, each
member being entitled to one chance or share in
such distribution, for each five dollars by him sub
scrbed and paid. By the first section of the act of
January 70, 1874 the name of the Apollo Association
was changed to "The American Art Union" The
second section is as follows:-"The distribution Of
the works of art belonging to the association, pro-
vded for in the constitution thereof and the annual
election of officers shall be held on the Friday pre-
ceding the 25th day of December, in each year. in
stead of the time stated in the fourth section of the
act hereby amended" The defendants insist that
this statute reco nzes the distribution by lot Of the
works Of art belonging to the corporation, as law
full act and therefore repeats the statute against raj
fling and lotteries, first above quoted so far as it
would otherwise have made such distribution Illegal
But if the scheme of the association for the pur-
chase and distribution of its works of art by lot or
chance is lottery, within the meaning Of the State
constitution of 1921 which was in force at the time
of the passing of the statute above mentioned the
Legislature had no power to authorize or sanction IT.
and the second section of the act of 1874 is there
fore imperative, either as grant Of power, or re-
cognition of such grant, This brings u.s. therefore, to
the real question in the case, namely, whether the
plan or scheme Of the Art Union, above mentioned,
The 18th section of the 18th article of the Constitu
ton of 1921, is in these words: No lottery shall
hereafter be authorized in this State; and the Leg
lature shall pass laws to prevent the sale Of all lot
terry tickets within this State except in lotteries al
ready provided for by law" This prohibition is &C.
neral 1t must be held to embrace al lotteries unless
there be some very clear and satisfactory reason for
On he M puSs
cuniary prizes, as means OF raising revenue, were
alone within the contemplation of the trainers Of
the Constitution But lotteries have never been
ated within this State for the purpose of general
venue, and there is therefore no ground for believing
that the prohibition was intended to be limited to
lotteries for that object This would have been re-.
straning mischief which did not exist, and tolerat
ing that which did. Lotteries had been authorized
by the Legislature for the benefit of colleges for the
making Of roads, for the building of bridges, for the
improvement of ferries, for the creation Of hospitals
and beneficial. All these were clearly within the
prohibition. The prohibition was not aimed at the
objects for which lotteries had been authorized, but
at that particular mode Of accomplishing such OBJ
jects. 1t was founded on the moral principle that
evil should not be done that good might follow; and
upon the more cogent practical reason that the evil
consequent on this pernicious kind Of gambling,
greatly overbaanced, in the aggregate any good likely
doubleday commendable object; but the prohibition
contains no exception in its favor that ground.
Payment Of the prizes in money is not one of the
sential ingredients Of lottery. Whenever the
the prizes were in money it would be lottery, it
will be equally So although the prizes are payble in
lands or chattels. In 1920, the city OF Albany was
authorized by statute to dispose OF its public lands
BY lottery, not to exceed in amount two hundred
and fifty thousand dollars The distribution of these
lands by lot or chance, was denominated q lottery
III the title and in the body of the statute. claws
OF 1870, p. 224) Payment Of prizes in money,
therefore, is not essential to lottery within the
meaning of the word, as used by the Legislature
before the adoption of the constitution Of 1921.
The intention OF the trainers Of the constitu-
ton undoubtedly was to forbid the future grant
ing OF any such lotteries as had at any time pre-
viousy been authorized by law; and by requiring
the Legislature to pass laws to prevent the sale Of all
UcketS, 10 an emu SUCH
Of money or goods, by lot chance had thereto
fore been forbidden by the statute, under the name
of private lotteries. reference to the statutes of
the colony and the State, against private lotteries,
will show conclusivey that all schemes for the dis
trbution of private property Of any description by
lot or chance, were regarded by the Legislature as
coming within the denomination of private lotteries.
The sale or disposition of any goods, wares, and
merchandise, by way Of or in manner Of lottery
was prohibited in the province as early as l72l, by
act entitled An act 70 prevent private lotteries
in the province of New York" The same thing was
done by another colonial statute in ILL., with SINH
lar title (Van Schaacks laws pages ia and 674.)
The statute of 1883 contains a similar provision,
q X. & II. 35), and this is repeated in the act OF
1913, e Rev. Laws, 1857 That the prizes to be
distributed by the Art Union scheme had no fixed
market value, is of no importance in relation to the
point in question. To render it material it would be
necessary to show that they were of no value This
is by no means true. They are valuable, although