Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-06-28
is THE LOTTERY LAW vALID2
A coGeNT ARGUMENT AGAINST
ITS coNsTlTuTIoNALiTY.
An Exhaustive, Learned and Logical Pre-
sentation of the Case Against the Law.
1t IL Argued That Congress Tran
scended Its Constitutional
Powers In Passing It.

COurG Ol ~OultcQ oUdltS VI tLC 4uCStion
of the constitutionality of the lottery law.
Mr.. Carter's Client George w. Dupre, was
indicted February 10, 1891, in the circuit
court of the United States for the Eastern
district of Louisiana, for mailing newspa-
per containing an advertisement OF lot
terry, 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,
overruled, and he was ordered to plead
thereto and was thereupon surrendered by
his bail and committed to the custody of
the United States marshal, to be held until
discharged in due course OF law.
He thereupon filed his petition in the SUI
preme court praying for habeas corpus
and certiorari, to the end that he might be
discharged from his Imprisonment. The
ground for his petition is that the statute
under which he was indicted is unconStitu-
tional and void.
The provisions of the lottery law areso
well known to the public that they do NOT
need to be repeated here.
In his first point in presenting the case to
thetcourt, Mr.. Carter defines the power OF
congress as limited in two ways. First, 1t
can exercise no power which has not been
conferred upon it by the constitution. Sec
ond, il cannot exercise the powers which
have been thus bestowed in ways or for
purposes which the constitution forbidS.
His first proposition is that the statute
in question Or. S., sec. 1884, is invalid, as
being an attempt to exercise power not con-
ferred upon congress.
In support of this proposition Mr.. Carter
says: "a
''It is not denied that congress, in the ex-
the constitution to establish ostOft1ceS and
post roads, is clothed with the full in
cidental power of regulating SUCH offices
and roads; in other words, mail4seryice.
Nor is it denied that this incidental power
OF regulation embraces the power of so
limiting the carriage of matter by mail Is
to render that service practicable; and conss
Sequently embraces q power OF excluding
matter from tho mails for that purpose and
to that extent. What we do assert Is that
any incidental powers WHICH congress may
thus exercise must be suchoply as, in the
Language of the Contribution,
care necessary and proper }or carrying
into execution general power sexpressly
conferred; and that whether any snch Incl
dental power is necessary HRld proper
must be, as this court has alwayssit e jul
dicial question. 49, 3
The last above stated propositions gas
early settled by one of the most celebra&R
judgments of Marshall.
The first form which the judicial inqulrys
assumes is whether the means employed by
congress in executing its admitted powers
are appropriate, and apparently conducive
to the legitimate end. If they are so, it
matters not whether or not they are the
best and most effective means. Congress
may fail in the effort to select these. But
they must be means: in other words, they
must have some relation to thes end-some
tendency to accomplish it. Applying this
test the statute in question is plainly in
valid This seems scarcely to admltof de-
bate.
The legitimate end is to furnish mail
facilities to the people of the United Statesss
and this means to all the people OF the
United States. No argument will be ex-
pected from US to show that the power thus
bestowed upon congress was not one to fur
nish mail facilities to such persons as con-
gress might. from caprice or fav0For any
arbitrary motive, choose to grant theHt$
The attempt in 1886 to procure the'Ap-
actment of law to prevent. the delivef55s
from the postoffices of alleged incendiary'
publications on the subject OF slavery
called forth an earnest debate in the United
States senate. Webster at once seized upon
the essential vice of such legislation. He
declared ''that congress- hadHo the power,
drawn from the CHARACTER of the paper, to
decide whether it SHOULD be carried in the
mail or uot.'
The same view was Supported by Sena-
tors Davis of Massachusetts,, CalhouneQf
South Carolina, ClaA of Kentucky and.
L
by any one participatinain the debate that
the measure was in any way conducive to
the end of establishing a ntRil service.
Mr. Carter cites innumekable decisions
of the court in support of hfk propositions,
and then goes on to say that M one will as
sert that congress has power q suppress
lotteries any more than it has 6Asuppress
any other employment or pursuit. Mi con-
gress had enacted a law directly SNrbid-
ding under penalties the carrying on OfShe
lottery business in any state, there wouNls
be no hesitation in any court in declaring it
to be unconstitutional.
Inasmuch as denial of mail facilities to
persons wishing to carry on any particular
pursuit must, of necessity, so far impede it
as to greatly abridge the extent to which it
may be carried on, and in many instances
render it 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. Buchanan's view,) it involves the
assertion that congress has the right, by
such action, to break up, or impede, any
business or employment.
What power did congress really exercise
when enacting this exclusion? Not certainly
a power of regulating the mail service in
order to make that service practicable, con-
venient and efficient.
The real power which congress attempted
to exercise was to hamper and impede, and,
if possible, to destroy, the lottery business,
in order to protect the people of the United
States from the assumed demorallZing and
dangerous tendency of lotteries. Inasmuch
as no one pretends that Congress may pass
a law directly suppressing lotteries on the
ground that tney.have an immoral tendency,
or, indeed, on any ground whatever, the
question is whether it can pass law, not
directly suppressing them by declaring
them to be crimes, but haraSSing and OBJ
structing them by withdrawing from them
facilities which are under its control, for
no other reasonthan it deems them crimes
which it would suppress if it had the
power.
This question must be promptly answered
in the negative, for the power thus at
tempted to be exercised is power to sup
press lotteries and that alone. No such
power can be derived from any express
language in the constitution, nor by any
just implication from any language in it.
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 in the lottery
business. or with a lottery, is, in every in
stance, an act done within state, and the
power to declare such acts crimes, or to
punish them as such, or to obstruct or i'm
pede them because they are crimes, is
lodged exclusively with the state govern
ments. They possessed this power before
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