Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-07-02
is THE LOTTERY LAW VALID2
4 COGENT ARGUMENT AGAINST
ITS CONSTiTUTiONALITY.
an Exhaustive, Learned and Logical Pre-
sentation of the Case Against the Law.
1t Is Argued That Congress Tran
scepded Its Constitutional
Powers in Passing 1t.

of The constitutionality of the lottery law.
Mr. Carriers client, George w. Dupre, was
indicted February ~, 1891, in the circuit
ronrr of the United States for the Eastern
district Of Louisiana, for mailing a newspa-
per containing an advertisement of a lot
fery, contrary to the provisions of section
1894 of the Revised Statutes OF the United
states He demurred TO the Indictment,
and his demurrer was, upon argument,
cyerruled, and he was ordered to plead
hereto. and was thereupon surrendered by
his bail and committed to the custody of
the United States marshal, 10 be held until
discharged in due course of law.
Ne thereupon filed his petition in the su-
pr.ine court praying for a habeas corpus
aud certiOrari. TO the end that he might be
discharged from his Imprisonment. The
ground Tor his petition is that the statute
unuer which he was indicted is unconstitu-
Ioual and Toid.
The provisions of the lottery law are so
well known 10 the public that they do not
need 10 be repeated here.
In his first point in presenting the case to
Tie court, Mr. Carter defines the power of
congress as limited in two ways First, it
ran exercise no power which has not been
conferred upon it by the constitution. Sec
ond il cianot exercise the powers which
have been thus bestowed in ways or for
purposes wfish the constitution forbids.
His first Proposition is that the statute
En- question (R. -, sec. 1884, is invalid, as
being an attemptt exercise power not con
f"rred upon congre@
Ia support Of this goposi'ion Mir. Carter
1T IS not denied that aspgress, in the ex-
ercise OF the power conAsred upon it by
the constitution TO NEUTRALITY-SUSPICIOUS. and
POSI- roads, IS clothed witHthe full in
,!dcnta! power OF regulating Spch offices
end roads; in other words m& service
.al y. &c
- regulation embraces the powe of so
Uniting the carriage of matter by mail as
~ render THAT service practicable; andSon-
-rlUaHrly embraces a power Of excluding
matter from the nails for that purpose ah
0 that extent. What we do assert is than
any Incidental powers which congress N.Y.
mus exercise must DC such only as, in ~
Language of the ConstitufioH%
Are necessary and proper foEsErrying
into execution u genera! powaeSHXpressly
Conferred: and that whethers3Sy such Incl
dental power is 'nccessaSS and. proper
must DC, as this court highways it, a ju-
gicial question.
The last above sssTed proposition was
early settled by QstFof the most celebrated
judgments of AStfshall.
The first lsrfn which the judicial inquiry
assumes iSs@hether the means employed by
rongressJin executing its admitted powers
are appropriate, and apparently conducive
10 the Legitimate end If they are SO, it
matters not whether or not they are the
best and most effective means. Congress
MAJ fail in the effort to select these. But
they must be means; in other words. they
must have some relation TO the end-some
tendency TO accomplish it. Applying this
test. the statute in question is plainly in
Vaiid. This seems scarcely 10 admit of de-
pate.
The legitimate end is TO furnish mail
and this means 10 all the people of the
United States. No argument viii be eX-
Esctcd from us to show that the power thus
bestowed upon congress was not one TO fur
Hish mail facilities 10 such persons as con-
gress might, from caprice or favor or any
arbitrary motive. choose TO grant them.
The attempt in 1886 to procure the en-
actment of a law 10 prevent the delivery
from the pOStoffices OF alleged incendiary
publications on the subject of slavery
called forth an earnest debate IL the Emitted
States senate. Webster at once seized upon
The essential vice of such legislation. He
declared ''that congress had notthe power,
drawn from the character of fhe paper.itO
decide whether it should beycarried in the
mail osnot.'
The same view was supported by Sena
tors Davis Of Massachusetts, Calhous of
South Caroliaa, Clay Of Kentucky fand
others, There syas mo- pretence made
by amy ioHs7 partic5p in the debats that
the measure was ii afs3ssay conducive to
the cad of establishing mail serviceS = a
Mr.. Carter cites innumerable DECISIONS
of the court in support of his propositions,
ana then goes on to say that no one will as
Sert that congress has power 70 suppress
lotteries any more than it has SO Suppress
amy other employment or pursuit. II con-
gress had enacted q law directly forbid
ding under penalties the carrying on of the
lottery business in any state. there would
be 10 hesitation in any court in declaring il
70 be unconstitutional.
lnasmuch as denial of piail facilities to
persons wishing to carrXson any particular
pursuit must, of necessity, so far impede it
rs 10 greatly abrldge-the extent TO which it
may be carried on, and in many instances
render II impossible; and as the argument
under notice asserts the absolute right of
congress, IN its uncomfortable discretion. TO
refuse the facilities in any case land such
was Mr.. Buchandn's view,) il involves the |
assertion that congress has the right, by
such action, 10 break up, or impede, any
business or employment
What power did congress really exercise |
when enactlng this exclusion! Not certainly |
power Of regulating the mail service in |
order 10 make that service practicable, con- |
venieut ana efficient
The real power which congress attempted |
10 exercise was 10 hamper and impede. and. |,
Il possible 10 destroy, the lottery business, |
IN order 20 protect the people of the United |
states from the assumed demoralizing and |
dangerous tendency of lotteries Jnasmuch |
rs no one pretendS that Congress may pass |
law directly SuppreSsing lotteries on the |
ground that they.have an immoral tendency, |
or, indeed on any ground whatever the |
question IS whether II can pass 4 law. not |
directly SuppreSSlug them by declaring /
them to be crimes, but harasSing and OBJ |
strncting them by withdrawing from them |
facilities which are under its control. for
no other reason than it deems them crimes
which it would suppress if il had the |
power.
This question must be promptly answered !
in the negative, for the power thus at
tempted to be exercised is power 10 sup
press lotteries and that alone. No such !
power can be derived from any express
language in the constitution, nor 10y any
lust implication from any language in ii.
More than this. the possession of any such |
power by Congress is utterly inconsistent /
with the whole theory of the
Constitutional Relations
between the general government and the |
states.
Nothing is clearer than that the carrying |
on of lottery. or the dealing III the lottery |
business, or with 4 lottery, IS, in every in |
stance an act done within a state and the |
power 10 declare such acts crimes. or 10 |
punish them as such, or TO obstruct or i'm |
pede them because they are crimes, Is
lodged exclusively with the state govern |
nentS. They possessed this power before
the adoption of the constitution. They did |
Il. l. III Nd