Ex Parte McClain

By ordinance No. 68 of the city and county of San Francisco it is made “ unlawful for any person to have in his possession any lottery ticket,” etc., and upon conviction of a violation of the terms of the ordinance the defendant may be punished by fine or imprisonment, or both. The petitioner here was convicted of a violation of this ordinance, and seeks his release under this writ, upon the asserted ground that the ordinance in question is unreasonable and void.

The United States government refuses the use of its mails to advertising lotteries, transmission of lottery tickets, the announcement of the winning numbers in lotteries,—in short, to the sending of any literature in aid of such gambling schemes, •— and it makes penal the violation of its laws in any of these respects. The state of California, by its penal laws, prohibits the setting up of a lottery, and declares it to be a misdemeanor for any person to sell a lottery ticket. There are, then, against all gambling devices of this kind, not only the public policy of the general government and of this state, but also the express mandate of their criminal laws, so that the avowed policy and the expressed intent is to stamp…

I concur in the judgment, but deem the language of Justice Field, cited in the main opinion, entirely too general to serve as authority in support of the conclusion here declared. Neither am I at all disposed to agree to the reasoning contained in the opinion of the court promulgated in Ex parte Lorenzen, 128 Cal. 431 . At the same time, I see no reason why the law-making power may not declare that the possession of a lottery ticket by a person shall constitute a misdemeanor. The statute clearly means a possession knowingly, and so construed, there is no legal objection to its validity. (Ford v. State, 85 Md. 465 ; Ex parte Mon Luck, 29 Or. 221 .)

79 Am. St. Rep. 47 . 60 Am. St. Rep. 337 .