The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-12-22
THE NEW oRLEANs DEMOCRAT, SATURDAY. DEoEMBER

Judge Ok the First Recorders Court, rendered on
December 81. which order was given In pro.
oeeding before Judge Smith against Johnston,
for disposipg to one Daniel Turner Of ticket In
the lottery without 1.-THE consent Of the company.
The petition sets forth that the imprisonment
is illegal for this
ri. The facts set forth in the affidavit and in
the mittimus are not sufficient in law to eonsti-
tute an offense under the provisions OF the act
No. OF 1874, under which said proceedings were
had.
a. The affidavit and mittimus are vague and
uncertain, and do not set forth the precise Of
Tense, which 10 required by law.
o. Because the said court was without consti-
tutional jurisdiction in the case.
4. Because the General Assembly had
NO CONSTITUTIONAL POWER
TO confer jurisdiction on the Judge of the First
Recorders Court OF the city OF New Orleans to
try the offense charged.
s; That the said act No. 9 is unconstitutional,
null and void, for the following reasons:
That the act violates article 81 of the constitu-
ton Of the State In far az 1t attempts TO confer
judicial power on said court to try and punish
the offense therein stated.
That the act denies the right OF trial by jury
for q Etate offense, contrary to the constitution
OF the State and of the United States.
The statute IL partial and unjust in it's applica-
ton in violation OF article Of the State constitu.
ton.
terry Company
TO EXACT A LICENSE
or grant permit to sell tickets, or do lottery
business In any form in this State Ia an attempt
TO delegate the sovereign police power OF the
State, and is, therefore, unconstitutional.
the Legislature OF 1868 is the trustee of the
State for the purpose Of carrying out the public
policy of the State in the matter of lotteries and
the sale of lottery tickets, and IL without power
to
DELEGATE IT'S AUTHORITY,
or to part with it's franchises to any other COM
paDy or person.
:. That the general law of the State TACT No. rs,
1867 prohibits all lotteries except that Of the
Louisians Company, and II lie not oonstitutionslly
competent for the Legislature to suspend this
generel law and make an exception thereto in
favor OF any person.
That the evidence in the case did NOT support
the charge, which was admitted, although OBJ
ieoted to.
Last night Johnston was brought into court.
and his counsel, Ohss. 8. Rice, Esq, and II.
Hutchinson. Esq., soon followed. Judge g. r..
Brsughn represented the sheriff. After the read
ing OF the pleadngs by Mr.. Hutchinson and
STATEMENT OF THE POINTS INVOLVED,
Judge Whitaker asked to have the mittimus
read, after which be stated that 90 far as the
constitutional points were concerned they had
courts, and he did not feel inclined to pass upon
them at that time. He would hear the case 30
fer "a it referred to the question Of jurisdiction
OF the court by which the relator had been oom-
mitted, and the
FORM OF THE pfrTTIMUs,
Mr.. Hutchinson then argued that inasmuch az
the mittimus in lie allegation of the crime the
prisoner stood charged with read "sell, or barter
or transfer" the use Of the word 'or" was not
correct under the law, as IL should have been
''sell and barter etc.
Judge Whitaker ruled that tho mittimus fol-
lowed the statute exactly and was correct. He
said that he had released the relstor before,
because the mttimus did not set forth any crime
under the statutes, but the present commitment
was correct.
O. 8. Rice. Esq, then stated TO the court that
be presentation Of the constitutional points in
xelxed IL the case He ranognized the fact that
the constitutionalty Of the lottery sot
HAD BEEN PASSED UPON
very frequently, but he had Just learned that
some judges had rendered adverse judgments on
the question, and he would like to argue it.
Judge Braushn stated that one judge only had
(Judge Saucier), but subsequently had refused to
entertain applications for writs before him.
MIR. Rice then said that there was question ~
TO the jurisdiction Of the magistrates courts over
offenses under State laws. He urged the right Of
TRIAL By JURY.
Ane mAgisWAtes nad JURISDICTION only IN cases OF
violation OF city ordinances, and the State could
not make these. The charge was that Of violat-
ing State law, and hence trial by jury should
have been allowed.
The judge stated that he was satisfied az to
the consttutionality Of the lottery act, and 10 10
the point OF jury trial he thought the state
having the power to grant the city charter, rs
the creator OF the city had the right to pass ordi
nsnces Tor it's police regulation. In the slaughter
house case this was settled after able argument
on both sides. 10 conclusion he said that he
must refuse the writ and remand the prisoner.