Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1881-04-12

We publish below the decision Of eur

We publish below the decision OF eur
Supreme Court In the matter Of sr pdrte
Blsuchard (a lottery case). delivered In
the January term Of 1874. Opinion was
delivered by Judge Bslknap:
Tho :" Nevada Benevolent Association"
was authorized by an Act OF the Legisla.
turs, approved March 8, 1871. to give NOT
exceeding three public entertainments or
gift concerts. and to sell tickets OF aamis-
sion to the Same emitting the noidef 70
participate In distribution of AWARDS "py
raffie or other scheme Of like character. !.
The petitioner 10 the managing agent OF
the Association. He has been arrested
and is In custody for selling lottery tickets
contrary to the provisions Of the statute.
approved March Z, 1873. entitled IAN ACT
10 prohibit lotteries" The tickets sold
were those Of the Nevada Benevolent AZ
mi clear that the Act Of March 8, 1871.
sspctious a lottery, The character Of the
scbeme Ia in no wise changed by the char
table purpose expressed In Its title. nor
by calling The drawings entertainments
or eift coucerts." The ffth section OF the
Act declares thst "nothing In this Act
contained shall be construed ~ authorize.
ing q lottery in this State, or - allowing
the sale Of lottery tickets contrary 70 }ne
proyisious OF the Constitution"
The State government 10 divided BY tho
organic law into executive, legislative and
judicial departments. and no person
cb.rrrd with the exercise Of powers prop
erIy belonging to one Of these departments
shs,i exercise any functions appertaining
10 either Of the others except In cases ex'
pressly directed or permitted. Const. Art.
III. The construction to DO placed upon
this Act must be determined oy tne Court
alone. The attempted exercise Oh tnis
power by the Legislature Was an assump,
ton Of the functions OF tho judiciary anu
must be disregarded. ~
By statute 10 and II, W. III. Q: i1' AL
lotteries are declared TO be public NUS
ances. 4 Bl. Com. l6S. This statute 70.
NAMED in force In England at the time of
the declaration Of American Independence,
aud being applicable to our situation:
constitutes q part Of tho common law OF
the United States. From the language
employed in the Constitution. u 10 evident
that this was the understanding of its
trainers. In the restriction upon the
power OF tho Legislature. IL 10 NOT SAID
that lotteries shall be prohibited, but that
"no lottery shall be authorized BY this
State" This constitutional clause con-
sidered In the light Of tho common law
implies that lotteries could bs lawfully
created by authority Of the Legislature
only. Bat hi. authority ras ri'hhsfd, and
the Act Of March 8. 1871. being In direct
violation Of the prohibition. is r.eon''ifn'
tionai. Since. then, this lottery 10 unau.
thorized by common law or valid statute,
Il follows that the objection urged that the
Ac, Of 1873 impairs the obligation Of con-
tracts 10 without force.
We are Of opinion that the act to pro-
hibit lotteries took effect. a. by the terms
Of its tenth section 1t 10 declared II shall
"from and after the first day Of January
one thousand eight hundred and seventy,
four" and Is applicable to tickets sold
under the act Of the Legislature Of March
8, 1871, entitled IAN act to aid the Nevada
Benevolent Association in providing means
10 erect an insane asylum"
Tho petitioner 10 remanded 10 the Gus
tody whence he came.