Delaware State journal and statesman., 1861-11-29

opinion has been secured by thorough study
of the case.
In 1859 the Legislature of the State gave
the aid Of the State to certain corporations,
and appropriated to their use seven hundred
and twenty thousand dollars, and in the
same act declared that the amount should
be raised by Lottery or Lotteriesi and that
Richard France, his agent or assigns, should
have special liberty TO prepare schemes
and draw Lotteries for period of twenty
years, in order that this money might be raised
and paid to the State Treasurer in semi-an-
nnal instruments of $4,000. To secure these
payments, R. France was required and gave
bond for S720, 600 and as a further spoke OF
safety to these benefciaries, the Legislature
appended clause of forfeiture, that upon fail
ure to pay any one of these several payments
within thirty days after the same became due
and payable, all the grants liberties, and
privileges should, from th0nceforth cease and
be of no effect 1t matters but liltle.with what
language clause Of forfeiture is clothed, it
must under all circumstances, be guided by
the general law of forfeiture. In my opinion,
when Mr.. France failed to pay the s. 700 due
July lie incurred forfeiture, but optional
with the State. cannot recognize, in justice
to the State, the consequences which the es-
tablishing the transaction as an indictable
offence, would bring about. The Legislature
ject of indictment upon II delay Of payment, by
attaching the clause of forfeiture, but intend
ed IL as guarantee that the internal improve
ments, which they had recognized as beuefi-
cial to the State, should not be crushed for the
want of means occasioned by the failure Of the
lottery.
And again, if this is established it recog-
nizes in the grantee the right to abandon
contract lie has undertaken to perform, when
l.,,l "a e. g L., 1.
hadsimagined, Notwithstanding the State might
regard il as of vital Importance to her to en-
force that contract. unquestonably this
grant is vodable not void, and the State may
hold, at its option, this grantee TO the faithful
performance ofhis agreement. II certainly is
not sound doctrine that two powers of State
government should exercise the forfeiting func-
tion upon the same franchise. If were to af-
firm the forfeiture by an indictment, and sub
ject this grantee and his assgness to the odium
of criminal prosecution, and the Legislature
Judging that, for the benefit of these beneficial
ries it was necessary to hold these parties to
their contract, and enforce the payment, un-
doubtedly the interest of neither party nor the
intent of the General Assembly, would be car
ried out. In the construction of this clause of
forfeiture, they have not delegated to any Of
fetal the power of dissolying the contract,
certainly not to che Attorney General but the
discretion as To the forfeiture is reserved for
the Legislature. II is contract made be-
tween tlr General Assembly and Richard
France; the State is to be benefited by the re-
ceipt of the money, and Richard France, by the
exercise of the Lottery privileges The former
parties are the representatives of the people,
and supposed to act for the public good they
have seen proper to make this contract, and
now by the act Of the grantee, with them alone
rests the right and the power Of breaking It.
! certainly have no right to Interfere with their
privileges. In the discharge of public duties,
prejudice, and an opinion OF what Onght to be,
cannot change what is. These parties are not
the subject of indictment, from the fact that
before an indictment could he sustained the
forfeiture must be iudrially ascertsued and
declared by civil proceeding. 1t could not
he accomplished by or through criminal
court and party thus indicted would un-
questioriably plead the act which gives special
authority to draw the Lottery, aud the ques-
tion Of forfeiture could not he inquired into
in IL collateral proceeding, it must he ascer-
tanned and determined in some other way and
by some competent authority, The drawing a
Lottery under this law was not considered by
the Legislature AS injurious TO the State
Damage done is the ground and gisi Of all
criminal prosecutions whilst here on the con
trary, the drawing of the Lottery was author
lied by the Legislature, the law trainers of ihe
State, expressly for the benefit of the internal
Improvements. The act upon which you would
indict these parties was enacted to prevent
persons from setting up and drawing Lotte-
ries without paying the State for the privilege,
and consequently the drawing of Lottery
without any authority and without any benefit
resulting therefrom to the State, would be
very different as well on the ground of e1pe-
diency, as legality.
ALF, r. WOOTTEN,
Attorney General.