Horner v. United States

143 U.S. 570, 12 S. Ct. 522, 36 L. Ed. 266, 1892 U.S. LEXIS 2041
CourtSupreme Court of the United States
DecidedJanuary 25, 1892
Docket2; 1473
StatusPublished
Cited by78 cases

This text of 143 U.S. 570 (Horner v. United States) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horner v. United States, 143 U.S. 570, 12 S. Ct. 522, 36 L. Ed. 266, 1892 U.S. LEXIS 2041 (1892).

Opinion

Me. Justice Blatcheobd

delivered the opinion of the court.

On the 10th of August, 1891, a post-office inspector of the United States made complaint on oath before John A. Shields, a United States commissioner for the Southern District of New York, that, on the 29th of December, 1890, Edward H. Horner, of New York City, unlawfully deposited, and caused to be deposited in the post-office at that city, in the State of New York, and in the Southern District of New York, a certain circular, to be conveyed and delivered by mail, which, in the contents thereof, thereafter .set forth in the complaint, concerned a lottery, and which was then and there addressed to Joseph Ehrman, 70 Dearborn Street,- Chicago, Illinois, and was enclosed in an envelope, with postage thereon prepaid, and carried by mail, and that the circular contained, among other things,, what is set forth in the margin, 1 the further contents of the complaint being' also set forth therewith.

*572 On the same day the commissioner issued a warrant to the marshal,.commanding him to arrest Horner and bring him before the commissioner. This was done, and Horner demanded an examination on the charge, which was had and completed; and the commissioner then certified that it appeared to him, from the testimony offered, that there was probable cause to believe Horner guilty of the offence charged in the warrant, and he committed Horner to the custody of the marshal, in default of $5000 bail, to await the action.of the grand jury. ■ By consent,"Horner was then discharged, .on his own recognizance, until a day named, for the purpose'of giving bail, and was subsequently discharged on bail, to await trial.

*573 On the 17th of November, 1891, Horner was surrendered by his surety, and was committed by the commissioner, in *574 default of $5000 bail, to the custody of .the. marshal on the warrant, to awajLt the action of the grand jury. On the same *575 day, on the petition of Horner, presented to the Circuit Court of the United States for the Southern District of New York, an order was made by that court that writs of habeas .corpus and certiorari issue to the marshal and the commissioner, returnable on that day. [Returns were’made to the writs, and on the same day, after counsel were heard, the court, held by Judge Wheeler,--made an order dismissing the writ of habeas corpus and remanding Horner to the custody of the marshal. Horner thereupon took an appeal to this court, on November 17, 1891, and was discharged on bail to abide the further action of the' Circuit Court on the mandate of this court. ■

The complaint in this case is founded on § 3894 of the Revised Statutes of the United States, as amended by the act of September 19, 1890, c. 908, (26 Stat. 465,) which reads as follows: “ No letter, postal card or circular concerning any lottery, so-called gift concert or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretences, and no list *of the drawings at any lottery or similar scheme, and no lottery ticket or part thereof, and no cheek, draft, bill, money, postal note or money order for the purchase of any ticket, tickets, or part thereof, or of any share or any chance'in-any such lottery or gift enterprise, shall be carried in the mail or delivered at or through any post-office or branch thereof, or by any letter carrier; nor shall any newspaper, circular, pamphlet or publication of any kind containing any advertisement of any lottery or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing. any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail .or delivered by any postmaster or letter carrier. Any person who shall knowingly deposit or cause to be deposited, or who, shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation.of this section, or who shall knowingly cause to be delivered by mail anything herein forbidden to be carried by mail, shall be deemed guilty of á misdemeanor, and on conviction shall be punished by a fine of not more than five *576 hundred dollars or by imprisonment for not more than one year, or by both such fine and imprisonment for each offence. Any person violating any of the provisions of this section may be proceeded against by information or indictment and tried and. punished, either in the district at which the unlawful publication was mailed or to which it is carried by mail for delivery according to the direction thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed.”

There are 9 assignments of error1 in this case, 6 of which allege that the facts proved before the commissioner do not constitute a crime within § 3894, as amended; 2 of them are based on the claim that that section is unconstitutional; and the remaining one contends that that section is in violation of a treaty between the United States and Austria, and is therefore void.

It is contended on the part of the United States .that, as the appeal in this case was taken on November 17, 1891, after the act entitled An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of. the United States, and for other purposes,” ,c. 517, passed March 3, 1891, (26 Stat. 826,) went into effect, this court has no jurisdiction of this appeal, and that’ it ought to have been taken to the Circuit Court of Appeals' for the Second Circuit. But, as the constitutionality of § 3894, as amended, is drawn in question, an appeal in this case lies directly to this court from the Circuit Court, under § 5 of the act of March 3,' 1891, which gives such appeal “ in atay case in which the constitutionality of any law- of the United States ... is drawn in question.” This is in accordance with our decision in Nishimura Ekiu v. United States, 142 U. S. 651, 658, 659, where it was said: “ As this case involves the constitutionality of a law' of the United States, it is within the appellate jurisdiction of this court, notwithstanding the appeal was taken since the act establishing Circuit Courts of Appeals took’effect. Act of March 3, 1891, c. 517, § 5; 26 Stat. 827, 828, 1115.”

We are further of opinion that where an appeal "or writ ^ error is taken direct to this court under § 5 of the act of March 3, 1893,, in a case in which the constitutionality of a law of the *577 United States is drawn in question, this court acquires jurisdiction of the entire case,-and of all questions involved in it, and not merely of the question of the constitutionality of the law of the United States. This is shown by the fact that, under sec.

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Bluebook (online)
143 U.S. 570, 12 S. Ct. 522, 36 L. Ed. 266, 1892 U.S. LEXIS 2041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horner-v-united-states-scotus-1892.