Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1881-04-20
SUPREME COURT DECISION.

We publish below the decision OF our
Supreme Court In the matter Of er parss
Blanchard 10 lottery case). delivered In
the January term Of 1874. Opinion was
delivered BY Judge Belknap:
The "Nevsda Benevolent Association"
was authorized BY an Act Of the Legisla.
ture, approved March 8, 1871. to give not
sxceeding three public entertainments or
Gift concerts, and 70 sell tickets Of admis'
sion to the same emitting tho holder 70
participate In distribution OF awards "py
raiie or other scheme Of like character.
The petitioner IL the managing agent OF
The association. He has been arrested
and is In custody for selling lottery tickets
contrary 70 the provisions OF the statute.
Approved March Z. 1873. entitled "An aot
10 prohibit lotteries" The tickets sold
we're those Of the "Nsvsds Benevolent A.
II IL clear that the Act Of March 3, 1871,
sanctions lottery. The character OF the
schems II In no wise changed by the char.
table purpose expressed In its title, nor
bv calling the drawings entertainments
or eift conoerts." Tho hfth section OF the
Act declares that "nothing In this Act
contained shall be construed ~ suthoriz'
ing q lottery In this 6tate, or ssallowing
the sale Of lottery tickets CONTRARY TO the
provisions OF the Constitution"
The State government 10 divided by 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 orpermitted. Const' Arr.
III. Tho 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. 4,
By statute 10 and IL, w. III, Q. IL, all
lotteries are declared TO be public nuis.
snces. 4 Bl. Com. l6S. This statute 70.
mained In force In England st 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, II 10 evident
that this was the understanding OF ia
trainers. In the restriction upon the
power Of the Legislature, IL 10 not SAID
that lotteries shall be prohibited, but that
emo lottery shall DO authorized BY this
State" This constitutional clause con.
sidered In the light Of the common law
Implies that lotteries could DO lawfully
created by authority Of tho Legislature
only. Bet tkis authority Has eithhsid. and
the Act Of March 8, 1871. being In direct
violation Of the prohibition, % uneon'i'tu-
tonai. Since, then, this lottery 10 unau-
.horized by common law or valid statute,
IL follows that the objection urged that the
Act Of 1878 impairs the Obligation OF oon'
tracts IL without force.
We arc Of opinion that the act 70 pro-
hibit lotteries took effect, a. BY the terms
Of its tenth section II 10 declared II SHALL
"irom and after the hrst day OF January,
one thousand eight hundred and seventy.
four" and Ia spplicable to tickets sold
under the act Of the Legislature OF March
5, 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.