Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1881-05-04
SUPREME COURT DECISION.

We publish below the decision OF our
Supreme Court In the matter Of e. parts
Blanchard 70 lottery cass). delivered IN
the January term Of 1874. Opinion was
delivered by Judge Belknap:
The Nevada Benevolent Association"
was authorized BY an Act Of the Legisla.
ture. approved March 8. 1871. 70 give not
exceeding three public entertainments or
Gift concerts, and 10 sell tickets Of admis-
sion 70 the same emitting the holder 70
participate In distribution Of awards "by
rsfie or other scheme Of like character"
The petitioner 10 the managing Agent OF
the association. He has been arresno
and u In custody for selling lottery tickets
contrary to the proyisions OF the sasute.
approved March 4. 1873. entitled IAN aes
TO prohibit lotteries" The tickets sold
we're those Of the "Nsvsda Benevolent As
sociAtion."
It's clear that The Act Of March 8, 1871.
sapctions lottery. The character OF the
scheme Is 10 no wise changed BY the char
liable purpose expressed In its title, nor
by calling the drawings embellishments
or eift concerts" The fifth section OF the
Act declares that "nothing In this Act
contained shall be construed ~ authorize.
ing lottery In this State, or % allowing
the sale OF lottery tickets contrary TO tho
provisions Of the Constitution"
Tho 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
shall exercise any functions appersainins
to either Of the others except In cases e1'
pressly directed or permitted. Const. Art.
III. The construction to DO placed upon
this Act must be determined BY the Court
alone. The attempted exercise OF this
power by the Legislature was An assump..
tion Of the functions Of the Judiciary and
must be disregarded.
BY statute 10 and II, W. III. Q. IL, all
lotteries are declared 10 be public nuis.
snces. 4 Bl. Com. 1853. This statute re.
msined 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. II 10 evident
that this was the understanding OF ih
trainers. In the restriction upon the
power Of tho Legislature. 1t 10 not said
that lotteries shall be prohibited. but that
..uo lottery shall be authorized BY this
State" This constitutional clause con.
sidered In the light Of the common law
implies that lotteries could be lawfully
created by authority Of the Legislature
only. Bat his authority eds rithhsld. and
the Act Of March 8. 1871, being In direct
violation Of the prohibition, 80 uneoHstitu.
tionai. Since, then. this lottery is unsu.
,horized by common Law or valid statute.
IL 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 70 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
8, 1871, entitled IAN act TO aid the Nevada
volent Association In providing means
to erect an insane asylum"
Tho petitioner 10 remanded to the Gus
tody whence he came.