The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-09-23
IS THE LOTTERY LAW VALID?
A C0gGlt Argument Against Its
C0lStitlti0laHty.

C0lStitlti0lality.
THEPOWERS OF CONGRESS-.
An Exhaustive, Learned and Logical Pressn-
tation of the Case Against the Law
by Judge ]. c. Carter
Honorable James C. Carter, the eminent
jurist 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 conStitutiODaity of the lot
terry law. Mr. Carriers client George w.
DuDre, was indicted February 10, 1891, in
the Circuit Court OF the United States for
the eastern district of Louisiana, for mail
ing newspaper containing an advertise
ment of a lottery contrary 10 the provisions
of Section 1894 OF the Revised Statutes Of
the United States lie demurred to the in
dictment and his demurrer was, upon argu-
ment, overruled, and he was ordered to
plead thereto, and was thereupon surren-
dered by his bail and committed to the Gus
tody of the United States Marshal, TO be
held until discharged in due course of law.
He thereupon filed his petition in the Su-
preme 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
well known to the public that they do not
need TO he 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 il by the Constitution. Sec
ond, it cannot exercise the powers which
have been thus bestowed in ways or for
purposes which the Constitution fOrDids.
His first proposition is that the statute in
question (R. s., Sec. $500 is invalid, as being
an attempt to exercise power not conferred
upon Congress.
In support Of this proposition Mr.. Carter
says:
TT is not denied that Congress, in the ex-
ercise of the power conferred upon Ii by the
Constitution to establish postofficeS and post
roads, is clothed with the full incidental
III otaer words, mail service Nor is 1t de-
MED that this incidental power of rpgula-
ton embraces the power OF so limiting the
carriage OF matter by Nail 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,
! Ara necessary and proper for carrying
into execution a general power expressly
! conferred; and that whether any such Incl
| dental power is necessary and proper must
| be, as this court has always held, a judicial
| question"
| The last above-stated proposition was
1 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. If they are so, 1t
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-sotne
| 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 fa-
| cilities t. the people Of the United States;
| and this means to all the people OF the
| United States. No argument VIII be eX-
pected from us to show that the power thus
! bestowed upon Congress was not one to fur
| nsh 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 10 procure The enact
| meut of law TO prevent tae delivery from
| the p0stoflices OF alleged incendlary publica-
| tons 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 de-
| clared that Congress had not tie 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 Sen
! ators 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 any way conducive to the
end of establishing a mail service.
Mr.. 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
| Geries any more than 1t has to suppress any
| other employment or pursuit. II Congress
| had enacted a law directly fOrbidding under
| ! enalties the carrying on OF the lottery busi-
| ness in any State there would be no hesl-
! tatOn in any court in declaring it to be I'M
| constitutional.
| Iuasmuch as the denial Of mail facilities
! to persons wishing to carry on any particu-
| lar pursuit must, OF necessity, so lar I'M
| pede it as to greatly abrldge the extent to
| which 1t may be carried on, and in many
| instances render 1t imDOssl0le; and as the
| argument under notice asserts the absolute
| right of Congress, in its uncomfortable dis
| erection. to refuse the facilities in any case
| (and such was Mir. Buchanan's view, it in
wolves the assertion that Congress has the
! right. by such action, to break up, or in-
! pede any business or employment.
What power did Congress really exercise
| when eXacting this exclusion? Not GER
taiuly power of regulating the mail service
| in order to make that service practicable,
convenient and efficient
The real power which Congress attempted
! to exercise was to hamper aud impede and,
! if possible, to destroy the lottery business,
in order to protect the people of the United
| States from the assumed demoralfzlng
and dangerous tendency of lotteries. mas
much 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 10 be crimes, but harassing 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 II would suppress II 1t 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
| lust implication from any language in il.
| More than this, the possession of any such
! power by Congress is utterly inconsistent
with the whole theory of the