The morning news. [volume] (Savannah, Ga.) 1887-1900, 1891-06-19
Is THE LOTTERY Law VALID -?
L COGENr ARGUMENT AGAINST
ITS CONS rITUTIONALITY.

An Exhaustive, Learned and Logical
Presentation of the Case Against the
Law-It is Argued That Congress
transcribed Its constitutional Pow
ers in Passing 1t.
Hon. James C. Carter, the eminent iurist
of New York city, has filed very able,
learned and interesting brief in the supreme
court of the United States on the question
of the constitutionality of the lottery law.
Mr.. Carriers 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 a news
paper containing an advertisement of a
lottery, contrary to the provisions of Sec
ton 1894 of Devised 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
supreme court praying for a 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, it
can exercise no power which has not been
conferred upon 1t by the constitution.
Second, it cannot exercise the powers which
have been thus bestowed in ways OF for
purposes which the constitution forbids.
His first proposition is that the statute in
question (R. s., sec. 1894 is Invalid, as be-
ing an attempt to exercise power not con-
ferred upon congress.
In support OF this proposition Mr.. Carter
says
at is not denied that congress, in the ex-
ercise of the power conferred upon it by the
constitution to establish postoffices and pos:
roads, is clothed with the full incidental
power of regulating such Offices and roads:
in other words, mail service Nor is it
denied that this incidental power of regula>
ton embraces the power of SO limiting the
carriage of matter by mail as to render that
service practicable, and consequently en-
braces power of excluding matter from
the mails for that purpose and to that ex-
tent. What we do assert is that any Incl
dental powers which congress may thus ex-
ercise must be such only as, in the
LANGUAGE OF THE CONSTITUTION,
"are necessary and proper for carrying
into execution a general power expressly
conferred: and that whether any such in
cidental power is necessary and proper
must be. as this court has always it, a judi
cial 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 i'll executing its admitted powers
are appropriate, and apparently conductive
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 end-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 people of the
United States. No argument will be ex-
pected from us 30 show that the power thus
bestowed upon congress was not one to fur
nlsh mail facilities to 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 enact
ment Of a law to prevent delivery from the
postoffices of alleged incendiary pubiica-
tons on the subject of slavery called forth
an earnest debate in the United States SEN
ate. Webster at once seized upon the es-
sential vice of such legislation. He declared
that congress had not the power, drawn
from the character of the paper, to decide
whether 1t should be carried in the mail or
not"
The same view was supported by Sena-
tors Davis of Massachusetts,, Calhoun of
South Carolina, Clay Of Kentucky and
others. There was no pretense made by
any one participating in the debate that
the measure was in anyway conducive to
the end of establishing a mail service.
MIR. Carter cites innumerable decisions 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 lot
teries any more than it has TO suppress any
other employment or pursuit. If congress
had enacted a 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
Inasmuch as denial of mail facilities to
persons wishing to carry on any particular
u
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.. Buchanans 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 exclusion9 Not certainly
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 demoralizing and
dangerous tendency of lotteries. Inasmuch
as no one pretends that congress may pass
law directly suppressing lotteries on the
ground that they have an immoral ten
dency 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 harrassing and OBJ
structing them by withdrawing from them
facilities which are under its control, for
no other reason than that it deems them
crimes which it would suppress il it had the
power
This question must be promptly answered
in the negative, for the power thus at