Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1881-05-12
SUPREME COURT DECISION.

We publish below the decision Of our
Supreme Court In ths matter Of ex parss
Blanchard 70 lottery easel. delivered In
the January term Of 1874. Opinion wss
delivered by Judge Belkuap:
The "Nevada Benevolent Association"
was authorized by an Act OF the Legisia.
ture, approved March s, 1871. to give not
exceeding three public entertainments or
Gift concerts, and to sell tickets OF admis-
sion to the same emitting the holder TO
participate In distribution OF awards "by
raffio or other scheme OF like charscter."
The petitioner IL the managing agent OF
the sssocistion. He has been arrested
and Is In custody for selling lottery tickets.
contrary to the provisions OF tho statute,
approved March 4, 1878. entitled "An act
10 prohibit lotteries" Tho tickets sold
were those Of the "Nsvada Benevolent A.
ISOLATION" .,,,
Il is clear that the ACT Of March 8. 1871.
sanctions . lottery. The character oi the
scheme 10 In no wise changed by the char.
liable purpose expressed In Its tue. nor
by calling the drawings entertainments
or Qiit conoerts." The 9th section OF the
Act declares that "nothing In this Act
contained shall be construed - authoris.
ing lottery In this State. or a. allowing
the sale Of lottery tickets contrary to the
provisions Of the Constitution"
The State government 10 divides 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
shall exercise any functions sPpertsining
TO either Of the others except in cases ex.
pressly directed or permitted. Const. Art
III. 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..
lion Of the functions Of the Judiciary and
must be disregarded.
By statute 10 and IL, W. III, Q. II, all
lotteries are declared TO be public nuis.
snces. Abb. Com. l68. This statute 70.
mained In force In England at the time Of
the declaration Of American Independence,
and being applicable to our situation.
constitutes Q part Of the common law Of
the United States. From the language
employed In the Constitution. IL 10 evident
that this was the understanding OF ita
trainers. In the restriction upon the
power Of the Legislature. IL 10 not said
that lotteries shall be prohibited, but that
"no lottery shall bo authorized by this
State" This constitutional clause con.
sidered In the light Of the common law
implies that lotteries could bs lawfully
created by authority Of the Legislature
only. Bat THE authority sas 'eiihhsId. and
the Act Of. March 3, 1871. being In direct
violation Of the prohibition, 10 "neonsfita'
tionai. Since, then. this lottery 10 unAu.
thorized by common law or valid statute
IL follows that the objection urged that the
Act Of 1873 impsirs the obligation Of con.
tracts 10 without force.
We are Of opinion that the act to pro.
hibit lotteries took effeot, - by the terms
Of ito tenth section 1t 10 declared 1t shall.
"irom and after the first day OF January,
one thousand eight hundred and seventy:
four" and II applicable to tickets sold
under the act Of the Legislature Of March
s, 1871, entitled IAN act TO aid the Nevada
Benevolent Association In providing means
to erect an insane asylum"
The petitioner 10 remanded 70 the GUS
tody whence he came.