The herald., 1894-10-27
ABOUT LOTTERY TICK ETS
JUDGE SMITHS OPINION REGARD
ING THEIR POSSESSION.
Judgment of the Lower Court Affirmed
in the Max Kaufman APP
peal Case Yes-
terday.

A decision was rendered by Judge
Smith yesterday morning in the case of
Max Kaufman. appealed from the police
court, whore the defendant was con-
victsd of having lottery tickets in his
possession. The judgment of the lower
court is affirmed, and the reasons there
for are set forth In the following opinion:
The defendant was convicted in the
police court OF this city under an ordi-
nance which provides that sit shall be
unlawful for any person to have in his
possession, unlese it be shown that such
purpose is innocent, or for lawful pur-
poae, any lottery ticket. :"
The contention OF the appellant is that
the city has no power to pass the ordi-
nance. and that if it did have such
power the ordinance is void, for the rea-
son that it casts the burden OF proof on
the defendant, and is also unreasonsb bic
in fixing the maximum punishment at
$500.
The answer to the first contention is
found in article III, section IL OF the con-
stitution OF the state, which ia as fol>
lows: ANY county, city, town or town
ship may make and enforce within it's
limits all such local police, sanitary and
other regulations as are not in conflict
with general laws" Also section cub.
division % OF th- city charter authorizes
the city "to make and enforce within its
limits such local police, sanitary and
other regulations as are not in conflict
with general laws and are deemed expe-
dent to maintain the public peace, pros
tect property, promote the public morals
!, = rs sko hnh 10.
ants"
directly within the police powers of q
city. as much go as gambling or houses
OF prostitution. 1t ''goes without say
ing" and hae become the settled law OF
the states of the union that lotteries
cal to the we'll being OF the state, and
stringent laws in this and other etates
have been enacted for their suppression.
Doe, the ordinance cast the burden OF
proof on the defendant l think not.
The ordinance makee it q misdemealor
to have in ones possession lottery
ticke 1t will be seen that tho offence
consets in having lottery ticketa in pos-
session. Nothing Is said about having
them for an unlawful purpose what
ever; but the simple fact of having
such tickets in possession constitutes
the offenee. But there may be instances
when such possession might be for law
full purposes, hence the ordinance has
an exception reading:
'Unless it be shown that such pos-
session is innocent or for u lawful pur-
pose." This language mesns no more
than IL 1t had read Except for an inno-
cent or lawful purpose" and being in
the enacting clause must be negatived
in the complaint. By reference to the
complaint in this case, it appears that
as matter of TACT the burden OF proof
was not cast on the defendant in the
trial, and no rule of law or practice was
violated.
Ia the ordinance unreasonable in fix-
ing the maximum puniehment at $500?
Counsel tor appellant cites the case of
ex parte Solomon (9l Cal. 440) in sup
port Of bis contention under this head.
In that case the ordinance fixed the
minimum punishment at $3.50, and the
maximum at $1,000, for having in pos
session lottery tickets, and the supreme
court held that the ordinance was void
as unreasonable. But no minimum is
named, and the fine may be 81, SO that
the case cited iH not parallel. In the
former case the court had no discretion
to make the fine under $3.50, but here
the court has no such restriction. and
we may not suppose the court would
abuse the discretion with which the
ordinance clothes it, hence the concu-
sion is tnat the ordinance is not void on
that account"