The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-05-19
A JUST JUDGE.


FEATED.
Judge Miltenberger Ignores Act NO. o..
and says that the Case Is Ono
To BE Tried by Jury.
The case of the State against p Saloy and A..
Saranda. for selling illegal lottery tickets and
violating act No. oof 1874, came up before Judge
Mltenberger yesterday: Messrs. G.. H. Braqghn
and @. F. Buck represented the State and A,
Sambola. ESQ, the defense. After hearing ar
guments of counsel on both sides the Judge
took the case under advsement. and adjourned
until 9 o'clock, when the decision was rendered
on the reopenng OF the court.
We append below the full text OF Judge Mil
tenberger's decision:
OPINIONS ON THE LOTTERY ACTS.
As magistrate am daily ray hourly, called
upon to enforce laws which, in one form or an
other, are recognized throughout the Civilized
world as necessary for the protection Of society
the human family, as against the wicked, tur~
bulent and dishonest portion Of it. But, aot-
hsf ,h9 aesosfs f is %
| an unpleasant, IL not q sad and painful duty, to
| pass sentence upon, those Of my fellow men
laws and | feel satisfied that tha t8atned and
| distinguished gentleman who. in part. repre-
the ion IL the ea before the
highest criminal tribunal Of the state. wv ''
What then would his feelings be. If, occupy
ing the humble position Of committing magis-
| trate, he W called upon to punish by 6ue OR
Imprisonment I tive g.. Of bis felowmen for an
| ing the graVest doubt as to his power under the
| constitution to perform such an act. And such
cused committed Have they Violated crimi.
| nal law :. Have they violated o"4 law or ordi-
nance adopted for M The p Gommon good Hays
They eay 5ars s Ii
r ~
| ing done on q very small scale what others are
! hourly permitted to do throughout the city and
State. and United States maj. add, on a very
| large scale. Why this impunity ON proseeu-
ton In favor OF the latter 2 Because these have
had the mears and Influence to cause one Of o,.tr
| General Assemblies to enact laws not only to
| protect them In the undertaking whereby they
are said to aInass fortune almost daily, but
poor wretch who tries by similar means to earn
| what at best iss but miserable living for him
/ know. and In this particular case, I thank
God that am not responsible for the laws
which rule US; but under the constitution OF
| matters other than those which may arise
under the police regulations of this city {artiele
| "a OF the constitutiont.
AM CONVINCED
that one Of tbe most delicate questions which
the courts, from the highest to the lowest, .are
called upon TO decide is regarding the constitu"
sembly, and am clearly Of the opinion. and
have so declared in this court at different times.
that committing magistrate should leave
law which be is called upon to. execute. is so
| fragrant violation of the constitution that it
would be criminal on his part to ignore It. In
the latter case his duty is plain, and he must
take the responsibility of declaring that he has
\ 40 right to assume power which the constitn-
m md bnt . q otfItn al rFNf
such power upon him.
Let US now examine the case before the court
law of The state relative to the unlicensed sale
OF lottery tickets in the city of New Orleans
and an this court Is called upon to enforce the pen
s25 tine. or In default Of payment Of the same
fye t, days impris9nment. T is clear that unless
os Of tbs y f5Ss hs aW Is a2 n1f9
and this court is without Jurisdiction for If It be
State tat ofense the court has no power to pass
N recent decision of our present Supreme
Court in the case Of the State ex rel. H. Geale
fns b ge nsog hs f Il e gear
ished that the State has the power to enact laws
for g, corporation and to provide fine OF pen
soc, after careful perusal Of the decision, any
thing in it to shoY that the Supreme Court has
decided said act 70. 9 TO be constitutional.
oFsnse mentioned in said act No. 8 can be con-
siae,ed police regulation, then the act is con
40 not see however GiHt LhE9. laf-p
ter point was passed upon, and under the cir
cumst@nCes and in view Of the diversity Of
opinion and deeisions as to the eonsttutionaIity
compelled to enforce it. were it not for g. snbse-
auent act mo. 10, passed on. the same day as
act M No. 3 and relative to the same offense. This
act No 10 o0aStitntes The OfGpss q n1isde7ne0nofa
HTo"gfso51 the state, the clty OF New Orleans
and therefore it's inhabitants are not exempt
think that the learned gent iemaR for the prose-
eutlon was IN error in st&ting the contrary in
After maturely considering both acts have
come to the conclusion that the people Of this
city are entitled under the constitution, article
?. to the same rights and privileges, and subject
to the same pains and penalties which the State
c9nfers upon the other inhabitants Of the State
and especially when the statute does not sbecif-
cally state that the city is excluded from its
provisions,
I therefore contend that the, statute under
.hole state The right of trial BY Jury for COM
hitting the offense created by said law, and In
Il ndskng a sas hs ons or nj d d.
has taken from the court the power to pass
finally upon the offense.
Having como to this conclusion. deem it un-
necessary to go any further into the case, and
have, ID consequence, determined to dismiss
the affldayits before me. but, previous to 50
time to mako the proper affidavits against the
i accused fOr thg y9faTion. of act No 10; and In
henceforth ignore entirely act No. of the
Under this decision humby think that no
one can com plain. for neither the State nor the
defendants can object to fair and i'm partial
trial by jury Of our countrymen II con
victed. the defendants would still have the
privilege to call upon the highest tribunal Of
the State to determi inc whether or not the law
Whieh. they shall have been found guilty OF
tional rights and privileges, and Deither tha
state nor the defendants can ask more from
this court.
THE ACCUSED WERE RELEASED
on parole until Monday when they will be dfa-
charged II the proper afffdavits under fhis
dacIsion. for violating act No 10 Of 1874 are not
CAPITOL NOTES.