The times. [volume] (Richmond, Va.) 1890-1903, 1892-02-02
IT IS CONSTITUTIONAL.
,x1rrorrERr Acr OF CONGRESS.
. p.cidc. the United states supreme Court.
synopsis Of tho opinion-Hoyd Wins
the Nebraska Case.

w,suNorov. ID. c.. Feb. 1.-The United
st.tes Supreme Court to-day upheld the con-
s,t,tonalty of the Ant-Lottery act Of last
CONGRESS. affirming the decision il the case Of
pe,ue and Bapier, publishers of the New
orleans States and Mobile Register. who were
Indicted on the charge Of sending through
fbe mails newspapers containing lottery adj
vertisemenis. By common consent these
cases were made test suits as to the constitu-
tonaGty Of the law.
Chief Justice Fuller announced that owing
20 the death OF Justice Bradley. 20 whom the
writing Of the opinion in the anti atterf cases
had been gwen. the Court would postpoue
aDv elaboration of its views and connAe lt9eH
O. an expression OF the general gIounlu On
which the decision proceeds. Inc Dv-It 'siou
sald that the opinion IN eX puie J"V 49, IN i."'
that power vested in Colg 20 o7'ao.isH
the postoilces and pOstroaos eih OI"ce" ia . .no
regulation of the entire p0s.A. ~ yale" "- '"9
country and designated Wnat i,iaS "lu
what may not be- eX lldel. Inc i'Nol
granted Congress was coalHelo az. 0"l'.
with 10 the power to forWo tAo uso VI .Io i....''
.r and of perDetrating crime oI lmmoraliJ'
fha courf saws there is no distinction De-
,-,eon NAL. nrohibitr and m8la ia Sc. and
tIaf n must ho left o. Congress. IN the eXer-
.fss If sound discretion 20 determine Whag
Shall be excluded There is no a.rdgment
Of the freedom of me press LOT lns reason
fhaf the Government d0la not prohbU com
,,l,ri.sf.ou bv other means but simply
tbrorph tho Government agencies which 1t
controls.
THg WANT or POWER.
rt is argued that in Jackson's case 1t was
not urged that Congress had no power to eX-
-.nde lottery matter from the mails. but il is
fI NJ Na ffft r of wa
ra.sel upon in the opinion. This was neces-
ar. el Tor the real question was the e1-
i.tarre o. the power and not the defective
exercise VI 10. IL ls o mistake TO suppose
f.t the conclusion there expressed was
arrived 40 without deliberate cOnsidera-
powers of Congress are limited
m tlolr exercise 60 the object
Qrheh they were entrusted, and that IN
cr1er.l Justify Congress IN exercis ng any IN
rl,rtl or implied powers 70 carry into elect
f'. express authority. 10 must appear that
ts-. S some relation between the means en-
r'rsl and the legitimate end This is true
I.t while the legitimate end of the exercise
r the power in question is TO furnish mail
facilities for the people Of the jnlted States
NIs also true that mail facilities are not re-
CURED to be furnished for every purpose
llo States before the mon was formed
could establish p0stoihces and post
r.ay the police power in the protection OF
their citizens from the use Of the means so
provided for purposes supposed 10 exert de-
m0rahzing influence upon the people. When
the power TO establish pOstOinces and post
TOads was surrendered to Congress 1t was
complete power, and the grant carried with 1t
the right o. exercise all the powers which
made that power effective. IL is necessary
fhat Congress should have the power 70 deal
with crime OF immortality within the state IL
order % maintain that II possesses power TO
forbid the use of the mails in aid Of the per
petTatiOn of crime or immortality.
REBUrrAL TO THE ARGUMENT.
The argument that there IS a distinction
between mala prOhib bita and mala IN Sc and
shat Congress might forbid the use of the
malls in promotion of such acts as are uni
gersally regarded as mala ~ Sc, including all
such crimes as murder, arson, burglary, NC.
the Ofense of circulating obscene books
and papers. but cannot do so IN respect of
other matters which IL might regard as crlml-
nal OF immoral but which 1t has no power
itself to prohibit, involves a concession which
is fatal 90 the contention of the petit
TONERS. since IL would be for Congress
o. determine what ere within and what with
out the rule: but we think there Is no room
for such a distinction here and that 1t must be
left 90 Congress IN the exercise Of sound
discretion to determine in what manner n will
exercise the power 20 operate lottery as
fundamental right infringed by the legisla-
ton in question. nor are we able TO see that
Congress can be held in its enactment to
have abridged the freedom of the press.
The circulation of newspapers Is not pro-
Ll0ited but the Government declines itself
g. become an agent IN the circulation of
printed matter which it regards as in
un0us 10 the people. The freedom of
.mmunicatiOn is not abridged within the in
tent and meaning of the constitutional pro
visions. unless Congress is absoluteydestitute
OF any discretion as 10 what shall or shall not
be carried in the mails and compelled arbitra-
ry 90 assist in the dissemination of matters
condemned by its judgment through the
governmental agencies which II controls.
THAT this power may be abused furnishes
DO ground for denial of its existence
81 Government is TO be maintained at
ELL Upon the whole. we do not find
sufficient grounds in the arguments of
counsel able and exhaustive as they have
been 90 induce us 20 change the views al
ready expressed Ia the case 20 which we have
referred We adhere 60 the conclusion
therein announced The writ Of habeas
co-pus prayed for will therefore be denied,
and the rules hereinbeiore entered dis
charged"
Tho cases on which the decision and Opin-
Ion were based are known in the court as ex
pnie John L.. Rapier ex parte George w.
Dupre and ex parte George w. Dupre.