Los Angeles herald., 1891-07-08
AN UNCONSTITUTIONAL ENACTMENT.

publishers OF the new Orledns otatoS, !" io""AHs
daily newspaper of that city, which probably
involves greater number of important legal
propositions than were ever presented tor tne
consideration of that tribunal
It is perhaps regrettable that these questions
should come up on what many may carelessiy
view as a side issue. Mr.. Dupre, relying upon
the unconstitutionality of what is known as
the Lottery act and having chosen to ignore Its
provisions, for which he was duly-and, as he
thinks unlawfully-called to account, is now
seeking the relief guaranteed by the constitu-
ton in such a case.
To Mr. Dupre, therefore, it is not a side issue,
but all important as indeed must be such an
issue to every citizen which involves individ,,
ual freedom, the rights OF d sovereign state anu
the liberty of the press
The most cursOrv examination OF the provls-
ions of this act, entitled IAN act to amend GER
tain sections of the revised statutes relating to
lotteries and for other purposes, demonstrates
the appropriateness of its title. IL II an act
''for other purposes" and very many ether pur-
statute is to break up the business of the Louis
lana State Lottery company, and if the trainers
of this Eew and certainly unprecedented legis-
lation had sought to do this directly honestly,
and fairly, there could not be any reasonable
objection to the charac er of the attempt. The
worst that could have been said OF such legis-
lation is that it is nugatory. You shan't run
a lottery Uncle Sam would cry, to which Lou
isana would not unnaturally reply, 81 shall. !"
And here the matter would rest until Louisiana
was ready. of her own accord, to agree with
her sister states.
For there is no principle of law better estab-
lished than that the general government has no
borders of q sovereign state other than those
which are committed in direct contravention OF
the special powers lodged by the constitution
in the general government.
1t is for the state exclusively, to declare what
is lawful or unlawful in the way OF lotteries
just as it is its prerogative to establlsh nleh
license or prohibition or to enforce or not en-
force, as the case may be, Sunday law.
The trainers of the statute knew this perfect
ly well and they have attempted to do by indi-
rection what they have no right to do at all
They have sought to lodge in the postothce de-
partment, powers wholly superior to the con-
stitution, the law of the land and the proper
tribunals for its enforcement; But the statute
goes even further; it expressly authorizes the
pettiest postmaster, nay eggs him on, to COM
nit acts which would, without the protection
of the statute, constitute Oenses OF the grayest
and most inexcusable character
These acts, he is not only encouraged, but
commanded to commit on all occasions which
may seem fit to his own good pleasure. 1t con-
fers therefore upon THIS mere s0fser 81 sn
| that claimed by the supreme court OF his own
state, the president of the United states and
his entire cabinet-alwayse excepting, OF course
| his chief, the postmaster general. II puts him
wholly outside Of the law, makes him totally
irresponsible even to his own conscience and
common sense, and to cap this climax OF ab-
out which our present form OF government
might as we'll be abandoned, completely at his
mercy.
These propositions are startling but true, and
being true, they are worth the careful atteu,
| ton of every citizen who observes the signs Of
| the times. Fortunately, IT is not conceivable
that the supreme court will, or can, give effect
| to them. However desirable may be the end In
| view it surely cannot be worth attaining at the
/ expense of liberty and justice; Yet this is, In
| exact terms, the issue involved
r. ,trtAC mo q
| training to detect the vice of such legislation
Like ali arbitrary and despotic enactments. il
| puts might above right, and justifes the unlaw
| full means it is compelled to employ, by the
conceived desirability of the end it seeks TO at
| tain.
Take section 1894 of the statute. "Any per
| son violating the provisions of this section
| (Which makes the mere mailing OF letter, OF
| in fact, any mail matter having the remotesl
connection with the business of the lottery
| company, misdemeanor) "may be proceeded
| against BY Information of Indictment"
| This section has at least one merit-it recog-
nizes the forms of the laws if, at the same time
supposes regular proceeding of some kind, 9
4 trial by jury with all the regular incidents o.
1 such trial. However, it Is wholly unconsti
tutional and upon ANALYSIS, absurd; the state
company. is debarred by law from maintaining
| mail service of her own yet the general gov
ernment, not only common carrier, carrier, but an @ ex
cept the mail matter of one state. be
cause in other states it is declared
contraband. Instead Of being neutra
| in the matter, and permitting the states to set
| tie their own differences, the government seek!
l to imprison or terrorize those who attempt t6
make it do its plain duty, which is, to do FOL
| all the states (and not for any chosen number @
them) what severally they cannot do so wei
| for themselves, provide a safe, speedy ano
| trustworthy service unimpa1red by such stal
chamber restrictions as those now being en-
| forced.
But if the denial of mail facilities to the pres.
| and the public because of differences of op1n
| ion with regard to new distinctions in morality
arising between the several states be depriya
ton of the rights of the state declared by the
law and the constitution, what shall we say o
| section 1929 which authorizes the postmaster
general ''upon evidence satisfactory to himself
| we quote and ltalicise the clause, TO instruct
| his postmasters to stamp with the word Fraud
ulent," letters which he thinks fall within thu
| provisions of this very act.
Whatever has been said of the Louisiana
| State Lottery company, its worst enemies have
never claimed it to be Fraudulent" The goot
faith of the company has never been called il
| question Even those newspapers which have
taken exception to its existence, have neye
denied the honesty of its methods nor OF tht
| gentlemen-such men as General Beauregart
and Early are among them-who have superin
tended the drawings.
The trainers of the statute knew th's-it wal
| fact of common notoriety-but this is jus
why they got up the rubber stamp scheme
Repeat the word Fraudulent enough, the,
reasoned, and perhaps after awhile the ide'
come to belieye the very opposite of what the!
had always believed before.
The device seems f1imsy enough, but in ii
general operation it is highly dangerous and OF
:. pressive.
For this enormous power is exercised by tn
postmaster ''upon evidence satisfactory to him
self" Yet, this evidence cannot be obtained
so the statuse is careful to say, by opening tn
letter. Oh no. that would be breach of conf
dence. and besides it is expressly prohibited b,
| law. Then how is the postmaster to obtain "evi
dence which is satisfactory to himself" He i
to GUESS, just guess A private citizen VIII
libels another cannot set up in justification o
his slander evidence of the truth of his state
If this were so, it would vastly simplify many
| libel case This evidence must be satisfactOr
also to a jury of twelve men, but it is differen
with the postmaster. He can brand the CORES
pondence of the most upright business man il
the land on the mere suspicion and be held no
| in the least accountable. The proprietor of
newspaper who fails, perhaps through th
death of witnesses or through some other acci
the interest of the public, from good motive
and for justifable ends, is none the less mulcte,
| in damages, but, your postmaster, no indeed
He can libel anybody from any motive or fO
any end. and when he is called to account, b
is sure to have "evidence satisfactory to him
self"
Again, the provisions of the statute are no
restricted to the mailing of lottery tickets, re
mittances or letters of inquiry; they cover
much wider category of any scheme" in fac
| through the mails, by means of false or fraudu
| lent pretences or promises is equally prohit
tied and all the subterfuges and devices of tn
statute are equally applicable in this as in tn
Now, at first blush, there seems to be wei
meaning provision. Lottery companies are nc
| necessarily fraudulent, whereas all suc
schemes" such as described in the section un
I t. L.