Ex parte Blanchard

9 Nev. 101 | Nev. | 1874

By the Court,

Belknap, J.:

The “Nevada Benevolent Association ” was authorized by an act of the legislature, approved March 3, 1871, to give not exceeding three public entertainments or gift concerts, and to sell tickets of admission to the same entitling the holder to participate in a distribution of awards ‘ by raffle or other scheme of like character.” -The petitioner is the managing agent of the association. He has been arrested and is in custody for selling lottery tickets, contrary to the provisions of the statute, approved March 7, 1873, entitled “ An act to prohibit lotteries.” The tickets sold were those of the “Nevada Benevolent Association.”

It is clear that the act of March 3, 1871, sanctions a lottery. The character of the scheme is in no wise changed by the charitable purpose expressed in its title, nor by calling the drawings “ entertainments or gift concerts.” The fifth section of the act declares that “nothing in this act contained shall be construed as authorizing a lottery in this State, or as allowing the sale of lottery tickets contrary to the provisions of the constitution.”

The State government is divided by the organic law into executive, legislative and judicial departments, and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others except in cases expressly directed or permitted. Const. Art. III. The construction to be placed upon this act must be determined by the court alone. The attempted exercise of this power by the legislature was an assumption of the functions of the judiciary, and must be disregarded.

By statute 10 and 11, W. III. c. 17, all lotteries are declared to be public nuisances. 4 Bl. Com. 168. This statute remained in force in England at the time of the declaration of American Independence, and being applicable to our situation, constitutes a part of the common law of the United States. Erom the language employed in the constitution, it is evident that this was the understanding of its framers. In the restriction upon the power of the legislature, it is not said that lotteries shall be prohibited, but that " no lottery shall be authorized by this State.” This constitutional clause considered in the light of the common law implies that lotteries could be lawfully created by authority of the legislature only. But this authority was withheld, and the act of March 3, 1871, being in direct violation of the prohibition, is unconstitutional. Since, then, this lottery is unauthorized by common law or valid statute, it follows that the objection urged that the act of 1873 impairs the obligation of contracts is without force.

"We are of opinion that the act to prohibit lotteries took effect, as by the terms of its tenth section it is declared it shall, "from and after the first day of January, one thousand eight hundred and seventy-four,” and is applicable to tickets sold under the act of the legislature of March 3, 1871, entitled "An act to aid the Nevada Benevolent Association in providing means to erect an insane asylum.”

The petitioner is remanded to the custody whence he came.

Whitman, O. J., did not participate in the foregoing decision.