The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1891-07-02
A COGENT ARGUMENT AGAINST ITS
CoNsTITUTIONALITY.
An Exhaustive, Learned and Logical Pre-.
sentation of the Case Against the Law
1t is Argued that Congress Tran
scended its Constitutional Pow
ers in Passing IL.

very able, learned and interesting brief
in the supreme court OF the United
States on the question of the con ltitu-
tionality of the lottery law. Mr.. Car
ter's client, George w. Dupress was in
dicted February 10, 1891, in the circuit
court of the United States for the
eastern district of Louisiana for mail
ing newspaper containing an adver-
tisement of lottery, contrary to the
provisions of Sec. 1894 of Revised
Statutes of the United States. He
demurred to the indictment, and his
demurrer was, upon argument, over
ruled, and he was ordered to plead
thereto, and was thereupon surren-
dered by his bail and committed to
the custody of the United States mar
shal to be held until discharged in due
| course law.
He thereupon filed his petition in
the supreme court, praying for q
habeas corpus and certiorari to tie
end that he might be dis charged from
| his imprisonment. The ground of his
petition is that the statute under
| which he was indicted was unconsti.
| tutional and void.
The provisions of the lottery law
are so well known to the pubic that
| they do not need to be repeated here.
In his first point i'll presenting the
case to the court Mr.. Carter defines
the power of congress as limited in
two ways. First, it can exercise no
power which has not been conferred
upon it by the constitution. Second,
| it can not 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 (R. s.. sec 1894 is invalid,
as being an attempt to exercise power
! not conferred upon Congress
In support OF this proposition Mr..
Carter says:
1T is not denied that Congress, in
the exercise of the power conferred
upon it by the constitution to estab-
fish postoffices, and post roads, is
of regulating such offices and roads; in
denied that this incidental power of
regulation embracing the power of so
limiting the carriage of matter by
mail as to render that service prac-
ticable; and consequently embraces a
power of excluding matter from the
mails for that purpose and to that ex-
tent What we do assert is that any
incidental powers which Congress
may thus exercise must be such only
as in the
Language Of the Constitution,
"are necessary and proper" for carry
ing into execution general power ex-
pressly conferred; and that whether
any such incidental power is ''neces-
sary and proper" must be, as this
court has always held it, judicial
question
The last above stated proposition
was early settled by one of the most
| celebrated judgments of Marshall.
The first form which the judicial in
quiry 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 the
eDd-some tendency to accomplish it.
Applying this test, the statute in
question is plainly invalid. This seems
scarcely to admit of debate.
The legitimate end is to furnish mail
facilities to the people of the United
States; and this means to all the peo-
pie of the United States. No argu-
ment will be expected from us to show
that the power thus bestowed upon
congress was not one to furnish mail
facilities to such persons as congress
might, from caprice or favor or INV |
arbitrary motive, choose to grant |
them.
Tie attempt in 1885 to procure the
enactment of a law to prevent the de
livery from the post offices OF alleged |
incendiary publications on the subject !
of slavery called forth an earnest de-
bate in the United States senate. |
Webster at once seized upon the es-
sential vice of such legislation. He de.
clared that congress had not the
power, drawn from the character of
the paper, to decide whether it should |
be carried in the mail or not"
The same view was supported by |
Senators Davis of Massachusetts,, Cal
houn of South Carolina, Clay of Ken
lucky and others. There were no pre-
tence made by any one participating
in the debate that the measure was in
any way conducive to the end OF es-
tablishing mail service.
MIR. Carter cites innumerahle decis-
ions of the court in support of his
propositions and then goes on to say
that no one will assert that congress |
has power to suppress lotteries any
more than it has to suppress any other
employment or pursuit. If congress
had enacted law directly forbidding |
under penalties the carrying on of the
lottery business in any state. there
would be no hesitation in any court in
declaring it to be unconstitutional.
lnasmuch as denial of mail facili-
tiles to persons wishing to carry on
any particular pusuit must, of neces-
sity, so far impede it as to greatly
abridge the extent to which it may be
carried on and in MANY instances rem |