New Ulm weekly review. [volume] (New Ulm, Minn.) 1878-1892, 1891-07-08
is THE LOTTERY LAW VALID
A Cogent Argument Against Its Constitu-
tionality-An Exhaustive, Learned
and Logical
Presentation of the Case Against the Law
It is Argued That Congress Transcribed
Its Constitutional Powers in t--4s
-& Passing 1t.

Honorable James Z. Carter, the eminent
jurist Of New York city, has filed very
able, learned and interesting briet in the
supreme court Of the United States on the
question Of the constitutionality OF the lot
terry law. Mr.. Carter's client, George w.
Dupre, was indicted Feb. 10, 1891, in the
circuit court Of the United States for the
eastern district of Louisiana, for mailing
newspaper containing an advertisement Of a
lottery, contrary to the provisions of section
1894 of Revised Statutes of the United States
He demurred to the Indictment, and his de-
murrer 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
prene court praying for habeas corpus
and certiorari to the end that he might be
discharged from his imprisonment The
ground OF his petition is that the statute
under which he was indicted is unconstitu-
tional and void.
The provisions Of the lottery law are so
we'll known to the public that they do not
need to be repeated here.
In his first point in presenting the case to
the court, 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.
Second, it 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 (R. S., Sec 3894) is invalid, as be-
ing an attempt to exercise power not con-
ferred upon congress.
In support of this proposition Mr.. Carter
says:
It is not denied that congress. in the ex-
ercise of the power conferred upon it by
the constitution to estab lish postoftices,
and post roads, is clothed with the full in.
cidental power of regulating such offices
and roads; in other words, mail service.
Nor is it denied that this incidental power
of regulation embraces the power of so
limiting the carriage Of matter by mail as
to render that service practicable; and con-
sequently embraces power OF excluding
matter from the mails tor that purpose and
to that extent, 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 carrying
into execution general power expressly
conferred; and that whether any such Incl.
dental power is necessary and proper
must be, as this court has always consid-
cred 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 inquiry
assumes is whether the means employed by
congress in executing its admitted powers
are appropriate, and apparently conducive
to the legitimate end. II they are SO, it
matters not whether or not they are the
best and most effective means. Congress
may tail in the effort to select these. But
thew 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
valid. This seems scarcely to admit OF de-
| bate.
The legitimate end is to furnish mail facil-
| this means to all the people of the United
States. No argument 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 any arbitrary mo-
tive, choose to grant them.
The attempt in 1886 to procure the en-
actment of a law to prevent the delivery
| from the postoffices OF alleged incendiary
publications. OH the subject OF slavery called
forth an earnest debate in the United States
senate. Webster at once seized upon the
clared that congress had not the power,
drawn from the characterize the paper, to
decide whether it should be carried in the
mail or not"
The same view was supported by Senat-
ors Davis of Massachusetts, Calhoun OF
others. There was no pretence made Ey
any one participating in the debate that the
measure was in any way conducive to the
end of establishing mail service.
Mr.. Carter cites innumerable decisions OF
the court in support of his propositions
and then goes OH 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. II con-
gress had enacted a law directly torbiddlng
| under penalties the carrying on OF the lot
terry business in any state, there would be
no hesitation in any court in declaring it
to be unconstitutional.
Inasmuch as a denial of mail facilities to
/ persons wishingto carry on any particular
pursuit must, OF necessity, so :ar impede it
as to greatly ahridge 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
i 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 mas the rlSnt, Oy
such action, to break up or impede any
business or employment. ..s -.
What power did congress really exercise
when enacting this exclusion? Not Ger.
tainly power OF regulating the mail serv-
ice in order to make that service practical
| BILE convenient and efficient. ~
1 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 de-
moralizing and dangerous tendencies
/ OF lotteries. Inasmuch as no one pretends
that congress may pass law directly
SURPRISING lotteries ON the ground that
they have an immoral tendency, or, indeed,
1 on any ground whatever, the question is
whether it can pass o law, NOT directly sup
pressing them by declaring them to be
crimes, but harassing and obstructing
them by Withdrawing from them facilities
! which are under its control, for no other
reason than that it deems them crimes
which it would suppressiti it had the power.
!. This question must be promptly answered
in the negative, for the power thus attempt
ed to be exercised is q power to suppress
lotteries and that alone. No such power
s can be derived from any express language