Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-09-18
FIGHT ON LOTTERIES.
Attorney General Miller's Brief Ready
for the Supreme Court.
POWERS OF CONGRESS- DEFINED.
Shall Government Employees Act as the
Agents of Lotteries?
THE PRINCIPAL QUESTION AT ISSUE

WASHINGTON, Sept 1.-THE case of the
United States against. John L. Rapier and
the two cases of the United States versus
George W, Dupre will come up for argu-
nnent at the October term of the United
States Supreme Court. Each of these cases
is an application for the discharge by writ
| of habeas corpus from arrest for an alleged
violation of the anti-lottery legislation of
the United States. The charge against
Rapier and against Dupre in one Indictment
was the mailing of a newspaper containing
an advertisement of the Louisiana Lottery,
aud the other indictment was for the mail
ing of a letter concerning the lottery.
The judgment of the lower court was
against the defendants, and the cases were
appealed to the Supreme Court. Attorney
General Miller has prepared the brief
which he will submit in behalf Of the Gov
ernment when the cases are heard, and he
has given it out for publication.
THE BRIEF OF MILLER.
He begins his brief by saying that nearly
Is years ago the exact question mooted in
these cases, arising in the same way. was
fully considered and unanimously decided
| by the Supreme Court. Since that time the
by the people, by Congress, by the execu-
tive officers of the Government and by the
courts as the settled law of the land. I'M
making that decision this court said:
"The only question for our determination
relates to the constitutionality of the act,I
and of that we have no doubt"
Ordinarily under such circumstances, the
Attorney General saws, it would seem that
the question of constitutionality of the legI
islation involved should be deemed settled
1t seems however, otherwise. The revenues
poured into the Golfers of the Louisiana Lott
terry Company by its witless victims are tod
large to be surrendered without another
struggle. As was to be expected in such Q
cause, the main effort of counsel for petit
tioners in each of the briefs seems to be to
cloud the issue To this end their entire
arguments assume that the refusal of the
General Government to be the instrument
ality for the circulation of lottery literature
is the same thing as forbidding the publica-
tion or circulation of such literature.
SERVANTS AND ERRAND BOYS.
The only escape fiom violation of the
prohibition in the first amendment to the
Federal Constitution against making "a
law abridging the freedom of the press" is for
every official of the Postoffice Department
errand boy of the Louisiana Lottery Com
pany. ',-#'.. .-.. .'
They totally ignore the fact that the sole
effect of the act of Congress is that the Gen
agencies shall in no way aid or abet this
business; that its mail bags and the hands of
its servants shall not be used in spreading
and manipulating snares for its unwary
oenls ofssms; Hands hhas It simply says to Federal
The Attorney General then says that as
the same questions substantially are
for each of the defendants, his argument
will be addressed to that of Mr.. Carter, the
most elaborate. The argument of tile first
ID pages of Mr.. Carters brief, he says, cul-
inmates in the proposition that because
Congress has no power directly to deal with
q particular crime within one of the States,
therefore 1t cannot deny those engaged in
mails, because that would be doing indirect
ly what might not be directly and in this no
distinction between mala prohipita and
mala in Sc.
POWER OF CONGRESS. |
If Congress may forbid the use of the mails |
for literature tending to promote mala in Sc,
which it could not legislate against directly,
thereby disfavorfng,-a and If possible, supres-
sing the same what becomes of the principle |
that Congress cannot enact laws that indi- |
rectly touch offences they could not punish
directly? :, - .s,
Regarding the assumption of counsel for
defense that the right to operate lottery is |
one of the fundamental rights of man. like |
the right to exercise a profession as a physi- |
clan, or trade, as as.aslaundryman, the At |
torney General says it hardly seems worth |
while to spend time upon an argument rest
ing upon such assumption. If it can be |
that to prey upon ones fellow |
men by means of lottery Is fundamental |
human right, the Decalogue and the Sermon /
on the Mount, not to mention the Declara- |
tion of Independence, ought to be rewritten |
at once.
With reference to the contention of coun- |
sci that the only plausible defense of the |
lottery legislation Is that lottery is alleged |
to be of an immoral and I'M curious tendency, |
the Attorney General SAYS that in doing this |
he again assumes as HIS fundamental propo-
sition that inasmuch as Congress cannot |
pass a law directly suppressing lotteries in |
the States therefore .,is II cannot indirectly
them in the transaction of their business |
through the mails.
-". A WEAK POSITION
We have already seen this position is |
wholly untenable, because it is conceded |
that Congress may refuse the use of the
mails and thus indirectly ."disfavor and IL |
possible suppress" many practices against
which it cannot legislate directly. There
fore, clearly if Congress cannot refuse mail /
facilities to lotteries, its inability to do so
must rest upon some other principle than is
involved in this case-of direct or indirect |:
legislation. T.
lin briet" said the Attorney General, Il
without successful contradiction
that whatever acts and enterprises Con-
yress has the power to make criminal in the
District OF columbia Sor the Territories it
may refuse directly or indirectly to aid, en-
courage or abet in any State without viola
ting any obligation, either to citizen or
state. Any State may make the practices of
this lottery company or even the possession
II It's tickets within its borders with intent
20 sell a crime. in the exercise of this power
,f legislation" In regard to the mails in
5hc exercise of any of its other legislative
powers, the Attorney General holds that
whether it shall act at all, or if SO, whom and
% what extent, and Tor what purposes it
hall act. -
.. BOUND BY THE RULES