Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1881-05-02
SUPREME COURT DECISION.

We publish below the decision Of our
Supreme Court In the matter Of er parss
Blanchard e lottery easel. delivered In
the January tsrm Of 1874. Opinion was
delivered By Judge Bslknap:
The Nevada Benevolent Association"
Was authorised BY an Act Of the Lsgisls.
ture. approved March 8, 1871. 70 give not
sxceedipg three public Embellishments or
gift concerts. and 10 sell tickets Of admis-
sion to the same emitting the holder 70
participate In distribution Of awards "by
rsfie or other scheme Of like oharsctsr." "
The petitioner 10 the managing agent OF
the association. He has been arrested
and Il In custody for selling lottery tickets
contrary to the provisions OF the statute.
approyed March 4, 1873, entitled can aot
10 prohibit lotteries" The tickets sold
we're those Of the "Nevads Benevolent As
sociation."
tis clear that the Act Of March s. 1871,
sanctions lottery. The character OF the
scheme 10 In no wise changed BY the char
liable purpose expressed In Its title, nor
by calling the drawings entertainments
or Gift concerts." The hfth section Of the
Act declares that "nothing In this Act
contained shall be construed a. authorize
ing lottery In this State, or - allowing
the sale Of lottery tickets contrary TO the
provisions Of the Constitution.
The State government 10 divided oy the
organic law into executive, legislative and
Judicial departments. and no person
charged with the exercise Of powers prop
erly belonging to one Of these departments
shsll exercise any functions appertaining
TO either Of the others except In cases ex.
pressly directed or permitted. Const. Art.
tn. The construction TO be placed upon
this Act must be determined by the Court
alone. The attempted exercise of this
power by the Legislature Was an assump..
iion Of the functions Of the judiciary, and
must be disregarded. a.,
By statute 10 and II. W. III. Q. IL, all
lotteries are declared 10 be public nuis.
snces. 4Bl. Com. l6S. This statute re.
NAMED In force In England at the time Of
the declaration OF American independence,
and being applicable to our situation:
constitutes . part Of the common law OF
the United States. From the language
employed In the Constitution. II 10 evident
that this was the understanding OF its
trainers. In the restriction upon the
power Of the Legislature. 1t 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 be lawfully
created by authority OF the Legislature
only. Bat his authority ros rithhsid. and
the Act Of March 8. 1871. being In direct
violation Of the prohibition. 10 uneonstifH.
tionai. Since, then. this lottery is unau-
,horized by common law or valid statute.
II follows that the objection urged that the
Act Of 1873 impairs the obligation Of CON-
tracts 10 without force.
We are Of opinion that the act 10 pro-
hibit lotteries took effect, a. by the terms
Of its tenth section 1t 10 declared IL shall,
"from and after the frst day OF January.
one thousand eight hundred and seventy.
four" and 10 applicable TO tickets sold
under the act Of The Legislature Of March
3, 1871, entitled IAN act TO aid the Nevada
volent Association In providing means
to erect au insane asylum"
The petitioner 10 remanded to the Gus
tody whence he came.