Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-09-18

The ease OF the United States against
John l. Rapicr and Two cases Of the Cnited
States vs.. George Dupree viii come up Tor
argument al the October term OF TIE United
States supreme court. Each of these cases
in IN application Cor discharge by writ OF
habeds corpus from arrest for an alleged
violation of the anti-lOttery legislation Of
the United states.
Tine charge against Rapicr and against
Dupree in one indictment was the mailing
of a newspaper containing an advertisement
OF the Louisiana lottery. and the other in
dictment for mailing letter concerning the
lottery. The judgments of the lower court
We're against the defendants. AMI the
eases Were appealed 10 the supreme
court. Attorney General Miller has pre-
pared Il brief which he will submit IN be-
half of the government when the cases ara
heard, and he has given il out for publica-
ton
He begins his brief by saying that nearly
fifteen 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 principle of that decision has
been accepted by the people. by congress.
by the executive officers OF the government
and by the courts as the settled law of tho
land. In making thar decision this court
said: 's,Fhe only question for our determina-
ton relates to the constitutionality of the
act. and of that we have no doubt.
Ordinarily under such circumstances
the encouragement says il would seem
that the question OF the constitutionality Of
legislation involved should be deemed set
tied. 1t seems, however. otherwise. Rev
enueS poured into the Golfers of the Louisi-
ana lottery company by its widest victims,
are too large to be surrendered without
another struggle. As was to be-
expected in such case, the main effort Of
the counsel for the petitioners III each OF
the briefs seems to be to becloud the issue.
To this end their entire arguments
assume that the refusal of the
general government to be the in
strumentality for the circulation of lot
terry literature is the same thing as
forbidding the publication or circulation OF
such literature. That the only escape from
the violation of the prohibition in the first
amendment TO the Federal constitution
against making IA law abridg-
ing the freedom of the press is
for every official of the postoffice
carrier the GRAND boy of the Louisiana lor-
terry company. They totally ignore the faca
that the sole effect of the act of congress IS
that the general government, its officers,
employees and agencies shall IN no way
ali or abet this business, that its mail bags
and the hands of its servants shall not be
used in spreading and manipulating snares
Tor its unwary victims, that it simply says
to federal officers, Hands OFF.
The encouragement then says that as
the same questions substantially are pre-
scented iii the briefs of the counsel for each
of the defendants. his argument wall be aG-
dressed to that OF MIR. Carter, the most
elaborate.
The argument of the first fifteen pages OF
the brief, he says, eliminates i'll the Propo-
sition that because congress has no
power directly to deal with Il par
ticular crime within one of thu
states. therefore it cannot deny those
engaged in the preparation of that crime
The use of the mails. because that would Da
doing indirectly what might not be done di-
l.actly and in this there IS no distinction
between mala prOhiblta and mala in "a
If congress may forbid the use Of the mails
for ill-literature tending to promote ma!a
in 81, which it could not ieeislate against
directly. thereby disfavOring. and if posi-
BILE suppresSing the same, what becomes OF
the principle that congress can not enact
laws that indirectly touch Ofenses they
could NOT punish directly Regarding
the assumption of counsel for tina
defense that the right to operate
lottery is one Of the fundamental rights Of
man. like :: right TO exercise MS profession
as Il physician, as Il trade, as Il laundryman,
the attorney general says it would seem
hardly worth while TO spend time upon
argument resting upon such an assumption.
upon ones feilowmen by means of lottery
is Fundamental human right, the decalogUs
and sermon on the mount. not TO mention
thd Declaration of Independence ought TO
be rewritten atsonce. With reference to the
contention of the counsel that the only
plausible defense OF lottery legislation is
that lottery is alleged to be of
an immoral and injurious tendency,
the encouragement says that in
doing this counsel again assumes
as his fundamental proposition
that inasmuch as congress cannot pass a
law directly suppressing lotteries in a
state. therefore it cannot indirectly sup
press them, and therefore it must aid them
in the transaction of their business through
the mails We have already seen that this
position is wholly untenable, because it Is
conceded that congress may refuse the use OF
the mails and thus indirectly ''disfavor and
if possible suppress many practices against
which it cannot legislate directly, there
fore clearly il congress cannot refuse mall
facilities to lotteries. its inability TO do so
must rest upon some other principle than is
involved in this argument OF direct or IN
direct legislation.
IN brief; says the encouragement. II
maintain without fear of successful contrib
diction, that whatever acts or enterprises
congress has power to make criminal in the
District of Columbia or the territories, it
may refuse directly or indirectly to aid, en-
courage or abet in any state without VIOLA
ton of any obligation to either citizen or
state. Any state may make the practice OF
this lottery company or even the possession
Of its ticket within its borders
- intent 10 sell. I. crime.
N the exercise of this power OF legislation
in regard to mails, as in tie exercise q