The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-02-14

the States, would have been an enterprise as
strikingly surprising to strain OF argument In
that line. Therefore IL the State has the greater
right to entirely and effectively prohibit the sale
Of lottery tickets within its boundaries, without
violating that article Of the Consultation OF the
United States has foTfior5 the lesser right OF
allowing 1t to such persons as 1t pleases. and IN.
der such restrictions, privileges and conditions a.
IL may please TO impose.
+ The authorities referred to by counsel for de-
fendsnts on this point are good Law, and conclu-
sive, as far as they go but they have no spphca
ton, in the opinion Of the court, to the case ct
bar for the reasons already assigned by the court
on the merits OF that point. $3.50
The next point Is that said act, II permitted to
have effect, creates Pernicious and dangerous
monopoly, and Is contra b0n0s naoTes. - 81
There Is no doubt In the mind of the court. as
the court has just demonstrated by the preceding
reasoning, that as far the selling and dsp0sing
of lottery are concerned, the Legislature having
the right 10 prevent that sale IA toto, and has
therefore the lesser right 10 Its wisdom to modify
that right, TO grant It under such conditions as the
court thinks best, and to such individuals, or sets
OF individuals as Il may think proper. creating
monopoly, IL Ia true-but then the legislators are,
In such q case, accountable to none but to 600
and their conscience-for the power OF the Legls.
lsiure IL supreme 1t can do everything which Il
IL not expressly or implicitly prohibited from do.
ing by virtue OF the Constitution OF the United
States and the Constitution of this State, not even
restricted In its legitimate functions by the laws
Of morality There are but two bounds ,ss 70 ID
States. Second, that of the State. When not re-
stricted by these two, 1t is an omnipotent as the
sutocrst Of Russia. l6ee page 2s)
The next point II that that act Is contra 6onos
nOres. That point would not avail counsel for
defendants for If the court could be led TO decide
prof prohiSs the parties from exercising the right
sell lottery tickets. But this court cannos decide
such thing. As an individual. the judge of this
| court has his own ideas of morality. AZ judge,
his code of morality is the law. What the law
allows the court will judIcisy decree to be legally
moral. though i may not be legally moral IN Sc,
| must end. The law is' his morality and II he
attempts to 20 beyond the law, he can but substi
tute his own ideas Of morality. or those that he
has got from some philosophical thinkers, aud the
doctrine of the higher law which the judge OF this
court was once unfortunate enough to hear advo-
Gated by an eminent member OF the bar.
| So true, correct and legal Is the opinion OF this
court the question OF eIctuSlUe right conferred
/ by the act of the 18th Of August, 1868, on the
plaintiffs in this case, that the learned judge OF the
Sixth District Court concurs IN IT, as 1t can be seen
| by the following extract taken from q charge
delivered by him to the jury In the case OF MART
| net vs. City Railroad, pending before his court.
| The last point is, that said writs Of Injunction
| have been Issued unsdvisedly and without ausho
| ity oflsw.
| The court having decided the act Of 18th Al
gust 1863 constitutional II will strike the common
sense OF every body, that there is no necessity oil
| deciding those two other writs Of injunction
which were merely incidental to the main suit
| However, the point Ia made, and should be looked
| into. The court understands an injunction to bt
| mandate obtained from competent court, pro-
hibiting one from impairins right which ht
| claims. II such be the case, there is no doub
that upon the allegations OF certain right veste6
| in party, the court must protect him, and pre-
vent any impsiring of that right, until final hear
ing. And, il after final hearing, the court feel
convinced that the party, alleging 10 have right
has II In reality. why then the injunction mus
stand forever. Bat that is not the main point; the
| question to be decided is, whether this court hs
the right to issue its writs OF injunction, as II did
this case. to prevent the other party from bring
| ing q suit. There Is no doubt in the mind OF thu
court that II has that right; and without enterini
| into q discussion Of the merits OF the case, tn
court would refer to several GASES establishing
thst fact beyond the possibility OF doubt.
| The first case is that Of beaumont vs.. Vfavant
before the Sixth District Court In which the judg
OF that court issued an order directed to the DC
PENDANT in that case prohibiting from bringing
suit before any State court against the plaintiff !
that case. Another case before the same court
that OF Lee and al. vs.. Thiberge, and case re
ported In lsth Annual, page IS, wherein defend
anita In IN Injunction suit were eDjoined fror
bringing any suit at law to enforce the payment G
| mortgage notes.
| The act of the Legislature of l7th August, 1855
entitled /" an act," etc., being constitutional Il
the reasons above set forth.
| Its therefore ordered that both rules to quas
the injunction In this case be dismissed Of the cos
OF plaintiff In rule.