enacting clause," of the act of April 5, 1822, as the said time had been calculated and estimated by the Comptroller. Had the managers, in the section under consideration, been limited to the time prescribed for drawing the other lotteries, without going further, there would have been room for a different construction from that which has been given; for the time in which they might continue those lotteries had two limitations: first, a period which could in no event be exceeded; and second, a restriction upon the amount of sales, which might greatly diminish the general limitation. But the act goes further, and expressly refers the time to that prescribed by the first section of the act of 1822, and the calculation and certificate which the Comptroller had made under it; and does not refer to the fifth section of the last mentioned act, which contains the restriction upon the amount of sales. If this be the true construction of the act of 1826, it follows not only that the lotteries already drawn have been authorised by law, but that the system may still be continued. The opinion has already been expressed in this report, that but for the act of 1826, all the lotteries authorised by law must have terminated more than two years since; this land lottery only excepted. And that would no doubt have remained as dormant in future, as it had during the six years that elapsed from the time it was first authorized, to the time it received its vital principle by the act under consideration. But by that act the land lottery was not only set in motion itself, but it acquired the power of carrying all the other lotries with it. It is important now to inquire how long this land lottery, and the others with which it is "mixed," may still be continued. The managers are understood to claim that their right extends through the whole period originally contemplated for the drawing of the literature lottery, as fixed by the Comptroller; and also to the additional time, which, upon the same principle, would have been required for completing the Historical Society and Fever Hospital grants: and legal opinions have been given to that effect. This period as it has been calculated on the part of the managers, would not expire until the year 1840; but as it has been estimated in this report, would terminate in October, 1837. The construction of the act of 1826, upon which this claim is founded, cannot be admitted. It is true that the second section speaks of "the time now limited by law," for closing the other lotteries, in reference to the continuance of the lottery under this act. But this is so far from making out the claim set up, that had the section proceeded no further, this land lottery, with all the others, would now be at an end. The time then limited by law was a period beyond which the lotteries could not extend; subject however to an earlier termination, by means of the restriction upon the amount of sales. The restriction upon sales was as much a limitation of time, as was that provision which fixed the utmost period for the continuance of the system; with only this difference, that the one might be calculated in advance, while the other depended upon the course of events. But it cannot be doubted that the sale of the amount of tickets authorized by law to be sold, would as effectually close the lottery, as would the other limitation, which has been mentioned. The true time for the continuance of this lottery, is believed to be that contemplated by the first section of the act of 1822, and fixed by the Comptroller's certificate for the duration of the literature lottery, without embracing any portion of the period allotted to the Historical Society, or the Fever Hospital grants. The second section before mentioned is very explicit upon this question. It provides that tickets in these schemes of mixed prizes might be sold; not during the time allowed for all the lotteries, but only "during the time contemplated and prescribed for finishing the drawing of the present lotteries, in and by the first enacting clause of the act" of 1822. That clause had no concern with any other than the literature lotteries. But to render the matter still more certain, the section not only speaks of the time contemplated and prescribed in and by the first enacting clause of the act of 1822, but it continues, "as the said time is calculated and estimated by the Comptroller in his certificate made under, and by virtue of said enacting clause, on file in the office of the Secretary of this State." This certificate, as we have before seen, fixed the time at eleven years. A second certificate (that made by the deputy comptroller in 1823) is also mentioned, as either restricting or extending this time. That certificate has already been considered. It may be mentioned in confirmation of this opinion, that a committee of the Assembly gave the same construction to the act in 1829. (Laws 1829, p. 580.) The committee say, "the time limited for mixing land with money prizes is confined to the term fixed for closing the literature lottery, and does not extend to the Fever Hospital lottery." And the managers themselves, in the stipulation made at that time, assign the same period for the termination of the Albany land lottery and the literature lottery, without taking the Fever Hospital grant into the account. Lotteries in schemes of mixed (money and land) prizes, may then be continued for the period of eleven years from the time the literary institutions filed their assent to the act of 1822; which will expire on the twenty-first day of April 1834: and beyond that time, in the opinion of the Attorney-General, there is no warrant of law for drawing any lottery within this State. The arrangement made with the managers in 1829, (Laws 1829, p. 576,) has not been overlooked. Near the close of the session of the Legislature in that year, a stipulation was filed by the managers, a report was made by a committee of the Assembly, and a concurrent resolution of the two Houses was adopted upon this subject. In these proceedings, the end of the year 1835 is spoken of as a period for closing the lotteries; which would extend the system something more than one year and eight months beyond the time above mentioned as the limit assigned by law for terminating all the grants. It is not now designed to go into an examination of the report made by the committee, but only to consider very briefly the nature of the transaction, and whether it imposed any obligation either upon the managers or the State. The managers, in their stipulation, after mentioning that the time for completing the several lottery grants would extend into the year 1840, proceed as follows: "We declare if we shall be permitted to continue the lotteries unmolested by proceedings of any sort, unless for any charge of misecnduct in the management of lotteries, until the end of the year 1835, that we will surrender all our right to the remainder of the term of time which shall then be left." What possible obligation did this impose upon the managers? If they had any rights extending beyond the year 1835, the promise to surrender them was without any legal consideration, and was nothing more than the promise of a gift, which is utterly void. And if they had no such rights, this promised surrender would furnish but a slender basis for any engagement on the part of the State. The managers have themselves consulted counsel on this subject, and have been furnished with an opinion corresponding to the one above expressed. That opinion also states other good reasons why the arrangement of 1829 did not bind the managers; and if it was not obligatory upon them, there is no principle upon which it can bind the State. But what was done by the State on that occasion? A concurrent resolution passed the two Houses. This was not an act of the State: To make it such, it required the sanction of another branch of the government. But waiving this consideration, and regarding the transaction as an act of the State; still it was neither granted nor promised to the managers that the lotteries might be continued until the end of 1835, nor for a single day beyond the time previously limited by law for their termination. The resolution itself is too plain for comment. It is in the following words: "Resolved, That the Legislature hereby accepts the stipulation of Yates and M'Intyre set forth in the foregoing report, and that the same be filed with the Secretary of State; but the said Yates and M'Intyre shall not hereby be authorised to continue any lottery held by them for a longer period than they are now authorised by law to continue it, or to raise a greater sum of money by any such lottery than they are now authorised by law to raise." Should it be questioned that the whole amount of tickets authorised by law to be disposed of in the money lotteries have already been sold and drawn, and that but for the act of 1826 all those lotteries would now be at an end; the fact may be ascertained by requiring the managers to furnish a certificate of the whole amount of tickets which have been sold and drawn since August 1826, (the date of the last report of sales,) pursuant to the fifth section of the act of 1822, and a similar provision in the act concerning the Fever Hospital lottery. There is nothing in either of those acts, so far as they require this certificate from the managers, that is either "inconsistent or repugnant" to the act of 1826; and consequently the fourth section of that act has not repealed this provision. It is true upon the principles which have been advanced in this report, that the literature and Albany land lotteries may yet be continued for a limited time, without any reference to the amount of sales. But if after the lapse of that time, the right is claimed to continue the Historical Society and Fever Hospital lotteries, it must be upon the ground that those grants have not been legally satisfied; [A. No. 292.] 3 and the evidence which the law has prescribed for determining that fact, may properly be demanded. Should the Legislature concur in the opinion expressed in this report concerning the time for the legal termination of all lottery grants, and should the managers be disposed to yield their assent; it is respectfully submitted that the public interest might be promoted by the final settlement of the question in such a manner as to place it beyond all future doubt or controversy. This might be effected by a proper deed of acquittance on the part of the managers, releasing the State from all right and claim to continue the system beyond the agreed time; and by an act of the Legislature, fixing that period by law. In conclusion, the Attorney-General deems it proper to mention the reason why the making of this report has been so long delayed. When the reference to him was made, he was actively engaged in court; and when about to enter upon this investigation, he received an unexpected order to leave the State upon official business. And during the few days that have elapsed since his return, he has for the most part been prevented by illness from attending to the subject. Respectfully submitted, April 6, 1832. GREENE C. BRONSON, |