LOTTERY CASE.
No. 2
SUPREME COURT OF THE UNITED STATES
February 23, 1903
188 U.S. 321
This case comes within the rule there laid down and the writ of error must be
Dismissed.
MR. JUSTICE MCKENNA took no part in the decision of this case..
LOTTERY CASE.1
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 2. Argued December 15, 16, 1902.—Decided February 23, 1903.
Lottery tickets are subjects of traffic among those who choose to buy and sell them and their carriage by independent carriers from one State to another is therefore interstate commerce which Congress may prohibit under its power to regulate commerce among the several States.
Legislation under that power may sometimes and properly assume the form, or have the effect, of prohibition.
Legislation prohibiting the carriage of such tickets is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress.
THE general question arising upon this appeal involves the constitutionality of the first section of the act of Congress of March 2, 1895, c. 191, entitled “An act for the suppression of lottery traffic through national and interstate commerce and the postal service subject to the jurisdiction and laws of the United States.”
The appeal was from an order of the Circuit Court of the United States for the Northern District of Illinois dismissing a writ of habeas corpus sued out by the appellant Champion, who in his application complained that he was restrained of his liberty by the Marshal of the United States in violation of the Constitution and laws of the United States.
He was arrested at Chicago under a warrant based upon a complaint in writing, under oath, charging him with conspiracy with others, at Dallas, in the Northern District of Texas, to commit the offence denounced in the above act of 1895; and the object of the arrest was to compel his appearance in the Federal court in Texas to answer the indictment against him.
The first section of the act of 1895, upon which the indictment was based, is as follows: “§ 1. That any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same, or deposited in or carried by the mails of the United States, or carried from one State to another in the United States, any paper, certificate or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert or similar enterprises, offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried by the mails of the United States, or transferred from one State to another in the same, shall be punishable in [for] the first offence by imprisonment for not more than two years or by a fine of not more than one thousand dollars, or both, and in the second and after offences by such imprisonment only.”
The indictment charged, in its first count, that on or about the first day of February, A. D. 1899, in Dallas County, Texas, “C. F. Champion, alias W. W. Ogden, W. F. Champion and
The indictment further charged that “in pursuance to said conspiracy, and to effect the object thereof, to wit, for the purpose of causing to be carried from one State to another in the United States, to wit, from the State of Texas to the State of California aforesaid, for the purpose of disposing of the same, papers, certificates and instruments purporting to be and representing tickets, chances and shares and interests in and dependent upon lot and chance, as aforesaid, as they then and there well knew, said W. F. Champion and Charles B. Park did then and there, to wit, on or about the day last aforesaid, in the year 1899, in the county aforesaid, in the Dallas division of the Northern District of Texas aforesaid, unlawfully, knowingly and feloniously, for the purpose of being carried from one State to another in the United States, to wit, from Dallas, in the State of Texas, to Fresno, in the State of California, for the purpose of disposing of the same, deposit and cause to be deposited and shipped and carried with and by the Wells-Fargo Express Company, a corporation engaged in carrying freight and packages from station to station along and over lines of railway, and from Dallas, Texas, to Fresno, California, for hire, one certain box or package containing, among other things, two whole tickets or papers or certificates of said purported Pan-American Lottery Company, one of which said whole tickets is hereto annexed by the grand jury to this indictment and made a part hereof.”
It thus appears that the carrying in this case was by an incorporated express company, engaged in transporting freight and packages from one State to another.
The Commissioner who issued the warrant of arrest, having found that there was probable cause to believe that Champion was guilty of the offence charged, ordered that he give bond for his appearance for trial in the District Court of the United States for the Northern District of Texas, or in default thereof to be committed to jail. Having declined to give the required bond the accused was taken into custody.
Mr. William D. Guthrie for appellant, his brief being also entitled in Francis v. United States, p. 375, post.
This case was first argued at the October term, 1900, but a reargument was directed to be heard at the October term, 1901, at the same time as the hearing in Francis v. United States. The two cases were argued in October, 1901, and at the commencement of the present term were ordered to be again set for reargument as one case before a full bench.
The two cases present substantially the same question as to the power of Congress to suppress lotteries by prohibiting any person from causing lottery tickets to be carried from one State to another, and alike involve the constitutionality of a provision in the act of Congress of March 2, 1895, c. 191, § 1,
The courts below erred in sustaining the prohibitory legislation in question because—
1. The suppression of lotteries is not an exercise of any power committed to the Congress by the Constitution of the United States, and is, therefore, in contravention of
2. The sending of lottery tickets or policy slips does not constitute or evidence any transaction belonging to interstate commerce and is not within the scope of the power of the national government to regulate commerce among the States.
3. The power to regulate lotteries, and to permit or prohibit
I. It cannot be reasonably doubted that the intention and purpose of Congress, in the legislation now before the court, was to suppress lotteries. There is no necessity to resort to the proceedings in Congress in which this purpose was openly avowed, for it appears on the face of the act itself expressly in its title and impliedly in its natural and reasonable effect. Holy Trinity Church v. United States, 143 U. S. 457, 462; Henderson v. Mayor of N. Y., 92 U. S. 259, 268; United States v. Fox, 95 U. S. 670, 672; Minnesota v. Barber, 136 U. S. 313, 320.
Yet hitherto no one has asserted that Congress has power to suppress lotteries any more than it has power to suppress insurance or speculation or other business between residents of different States not relating to interstate commerce. The suppression of lotteries or of any other harmful business is essentially an exercise of the police power exclusively within the domain of and expressly reserved to the several States. In re Rahrer, 140 U. S. 545, 554; United States v. E. C. Knight Co., 156 U. S. 1, 13.
Yet, on behalf of the United States it is now urged, in support of the legislation before the court, that there is a Federal police power of the broadest scope to be administered by Congress in its absolute discretion, and not reviewable by the courts.
No such absolute power in respect of police regulations was ever intended to be vested in Congress. On the contrary, it is well settled that there is no such thing as a Federal police power except in respect of those specific subjects delegated to Congress, such as treason, counterfeiting, piracies and felonies on the high seas and offences against the laws of nations. Of course, in exercising its delegated powers, Congress may create crimes and add the sanctions without which law exists but in name. Authority to legislate on a given subject necessarily includes authority to punish any one by whom the laws so made are violated. But this incidental power to enforce its legislation cannot extend the jurisdiction of Congress to subjects not delegated to the national government or support legislation not
Lottery tickets at most, are mere evidences of contracts made wholly within the boundaries of a State, which contracts are valid or invalid according to the municipal law of the State where made or attempted to be enforced. If the given subject thus attempted to be regulated be not commerce, it is not easy to perceive whence Congress derives the power to regulate it. Congress cannot conclusively determine what is or what is not an article of commerce. That inquiry is essentially judicial. Otherwise, Congress could determine for itself the extent and limit of its own powers and enlarge them at will. The License Cases, 5 How. 504, 574.
A legislative fiat cannot make that a commercial commodity which in its essential nature is not such. A transaction which is not commercial in its nature, cannot become so merely by the declaration of Congress. Ex parte Jackson, 96 U. S. 727, 735; In re Rapier, 143 U. S. 110, 133. In France v. United States, 164 U. S. 676, 683, this question arose but was not necessary to the decision and was left undecided.
In the case of Cohens v. Virginia, 6 Wheat. 264, a conviction under a statute of Virginia for selling lottery tickets for the national lottery authorized by the act of Congress of May 4, 1812, was sustained. But see Welton v. State of Missouri, 91 U. S. 275; Webber v. Virginia, 103 U. S. 344.
A lottery ticket, in all its aspects, is of the same nature as an insurance policy, which represents an analogous form of wagering contract. Both forms of contract depend upon chance and uncertain events, and in principle cannot be distinguished in their nature. Pothier‘s Obligations, Evans’ Transl. vol. I, pp.
In the case of Paul v. Virginia, 8 Wall. 168, 183, it was distinctly held that the issuing of insurance policies in New York and sending them to Virginia, to be there delivered to the insured on payment of premium, was not interstate commerce. See also Hooper v. California, 155 U. S. 648, 653, 655; New York Life Insurance Co. v. Cravens, 178 U. S. 389, 401.
These insurance cases cannot be distinguished on the ground that the transaction was not interstate commerce, because the agent of the foreign insurance company negotiated the contract of insurance in the State where the contract was to be finally completed and the policy delivered. See, however, Robbins v. Shelby County Taxing District, 120 U. S. 489, 497; Hopkins v. United States, 171 U. S. 578, 601; Collins v. New Hampshire, 171 U. S. 30, 32; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 46; Williams v. Fears, 179 U. S. 270, 276.
In so far as the law now under consideration is aimed against the lottery ticket or policy slip, either at the place where the paper started or delivery was made, or at the place where the paper will find itself, or where the contract may take effect at the end of its journey, it is an attempt to interfere with the local municipal laws and police regulations of either place. Lotteries, wherever found, are not interstate commerce, but at most interstate wagering, such as insurance and other forms of speculation or gambling. It is true that lotteries, which were once popular and extensively engaged in, have gradually fallen into disrepute and have become the subject of prohibition by most of the States. But the gradual prohibition of lotteries under state police powers did not make them interstate commerce, or diminish the power of the respective States to permit, regulate or prohibit them.
II. The argument on behalf of the United States as to the scope of the word intercourse, found in some of the opinions of the court, tends to prove altogether too much. It would make the power to regulate commerce embrace not merely “the entire sphere of mercantile activity in any way connected with trade between the States,” but all the relations of life in so far as they involved intercourse between residents of different States.
The appellants do not dispute the proposition that the business of carriage for hire from one State to another or of facilitating such transportation or the transit of persons is a branch of interstate commerce within the authority of Congress to regulate, but it does not follow that Congress may, therefore, determine what may or may not be carried, irrespective of the nature of the thing carried. The broad powers claimed in the government‘s brief would enable Congress to regulate or prohibit every form of domestic intercourse and contractual relation between residents of different States, and to prohibit the transfer of promissory notes, of deeds, of bonds, of contracts for personal service, etc. It is submitted that no such power was intended to be delegated to Congress by the grant of authority to regulate commerce among the several States.
Further, if the Constitution delegated to Congress the express power to prohibit interstate commerce, that grant would not confer the power to prohibit directly or indirectly what was not interstate commerce. If Congress may prohibit the transportation of diseased animals or infected goods or obscene literature, it is because they are essentially commercial in their nature, and hence they are dealing with subjects of commerce.
In reply to the government‘s brief, undoubtedly the State could not tax the transportation of the box of lottery matter from one State to another, because that would be taxing the business of interstate commerce and not because it would be taxing lottery tickets as such.
Whilst the State is concededly impotent to tax the business of interstate carriage for hire of lottery tickets, that fact does not in any degree militate against its power to tax or prohibit dealings in lottery tickets under the exercise of its reserved powers. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, distinguished, and United States v. E. C. Knight Co., cited.
III. As to the suggestion that commerce means intercourse in the broadest sense of that term, and includes all forms of transactions or intercourse among the people of the several States, what has been ruled is, not that commerce is the equivalent or synonym of intercourse, but that commerce is synonymous with “commercial intercourse,” which no one could dispute. Gibbons v. Ogden, 9 Wheat. 1, 189.
It is always necessary to bear distinctly in mind that, when adopting the Federal Constitution, the people of the United States deliberately “reserved to the States respectively or to the people” many objects which might have been appropriate for Federal legislative action. The student of the history of that critical period cannot fail to be impressed with the conviction that a grant to the Federal government of police powers, such as the regulation and suppression of lotteries, could not have been secured, and that the Constitution itself would not have been ratified if any attempt had been made to give greater scope to Federal legislation. Hooper v. California, 155 U. S. 648; United States v. Fox, 95 U. S. 670; Trade-Mark Cases, 100 U. S. 82; Nathan v. Louisiana, 8 How. 73; United States v. Dewitt, 9 Wall. 41; United States v. Boyer, 85 Fed. Rep. 425; Williams v. Fears, 179 U. S. 270, 277; Ex parte Milligan, 4 Wall. 2, 120; In re Debs, Petitioner, 158 U. S. 564, 591.
If the argument of expediency could be adopted, in its last analysis it would vest in Congress power to legislate in all criminal matters whenever the state laws were not duly enforced as to any acts or transactions arising from or affecting directly or indirectly intercourse among the inhabitants of the several States.
The reasoning of this court in the Rahrer Case, 140 U. S. 545, shows that it was by no means the idea in that opinion that Congress might prohibit all interstate traffic in liquors.
It must be evident that any attempt by Congress to prohibit interstate traffic in liquor, notwithstanding the wishes of the various States and their local preferences, would be a departure which would cause much astonishment and opposition and be
The significance of this episode lies in the fact that Congress was grappling with the proposition to regulate the transmission from State to State of documents which lacked entirely the quality of merchandise. It was admitted throughout the debate that, if Congress could not regulate this matter indirectly through the mails, it could not regulate it at all; and no suggestion was ever made that such a bill could be passed under the commerce clause.
IV. In reply to the question in the government‘s brief why may not the prohibitive power exercised in respect of foreign nations be applied to interstate commerce, and to the question why the same prohibitive power exercised in regulating trade with the Indian tribes may not be applied to interstate commerce, it should be sufficient to answer that there is nowhere in the Constitution or any of the amendments thereto a reservation of police powers or of any power either to any foreign nation or to any Indian tribe, and, therefore, the power of Congress over commerce with both is exclusive and absolute. Citing as to extent of powers of Congress: United States v. 43 Gallons of Whiskey, 93 U. S. 188, 194; 2 Tucker on Constitution, 528-533; Groves v. Slaughter, 15 Peters, 449, 503; Passenger Cases, 7 How. 283, 406; Crandall v. Nevada, 6 Wall. 35, 44, 48; Slaughter-House Cases, 16 Wall. 36, 75, 119; Paul v. Virginia, Hooper v. California and New York Life Ins. Co. v. Cravens, cited supra; Head Money Cases, 112 U. S. 580, 591.
The source and scope of this power to regulate international commerce are, in their very nature, essentially different from the source and scope of the power to regulate domestic commerce. In the case of international commerce, there is no limitation whatever upon the power of Congress and no implied or reserved power in the States. In the case of internal or interstate commerce, the only power Congress exercises is that expressly delegated.
It may, therefore, be conceded that Congress, under the plenary power to regulate our relations with foreign countries, may well exclude persons, commodities, or printed matter of any nature whatsoever, whether or not relating to or connected with commerce. The power of Congress—the legislative power of a sovereign nation—to exclude foreign persons or commodities or printed matter in its judgment and discretion need not be challenged in the slightest degree. But no one would seriously suggest that any class of American citizens could be excluded or deported under the same power which enables Congress to exclude or deport aliens. Nishimura Ekiu v. United States, 142 U. S. 651, 659; Fong Yue Ting v. United States, 149 U. S. 698, 707, 712; United States v. Brigantine “William,” 2 Hall‘s Am. Law Journal, 255; Gibbons v. Ogden, 9 Wheaton, 1, 191, 192; United States v. Wong Kim Ark, 169 U. S. 649, 653.
That this attribute of sovereignty under the treaty power has been surrendered by and does not belong to the States cannot for a moment be doubted, for the States are expressly forbidden to enter into any form of treaty.
The power to regulate commerce among the several States, it is true, is given in the same section and in the same language as the power to regulate foreign or international commerce, but the scope of the power is not the same in both cases and may
Mr. John G. Carlisle, with whom Mr. Miller Outcalt and Mr. Thomas F. Shay were on the brief, appeared for John Francis and others, appellants in No. 80, which was argued simultaneously with this case. In that part of the brief relating to the constitutionality of the act of March 2, 1895, they argued:
The validity of the first section of the act of March 2, 1895, can only be sustained as a regulation of commerce “among the several States” under the powers conferred upon Congress by the Constitution, as embraced in
Having in mind, therefore, at all times the rules by which in our judgment, a proper construction and interpretation of this act of March 2, 1895, is to be determined, we contend that there are but two interpretations of the words of the Constitution, “carried from one State to another in the United States,” namely:
First. That the act of carrying an article must be in furtherance of some commercial transaction, otherwise Congress would have no power under the commerce clause of the Constitution or otherwise, to make such act of carriage or transportation from one State to another, a crime; and,
Second. The article carried must be a recognized article of
Lottery tickets cannot in any sense be held to be legitimate articles of commerce. Douglass v. Kentucky, 168 U. S. 458; Stone v. Mississippi, 101 U. S. 814.
We understand this language to emphasize the declaration that the States of the Union are at all times clothed with the exclusive power to suppress and prevent by proper legislation, at any time that they see fit, at their discretion, acts or things affecting the morals or welfare of the communities of the several States, and that the suppression of lotteries is declared to be within the category of subjects to be controlled by state legislation.
If what we contend for in regard to lottery tickets is true, how much more forceful does the argument bear upon “lottery advertisements,” the subject of the concluding paragraph of section 1, of the act in question. Can there, in the nature of things, be any “commercial intercourse” in advertisements?
Mr. Assistant Attorney General James M. Beck for the United States.
1. The proceedings of the Convention of 1787 clearly show that the purpose of the framers was to vest in the Federal government control, not merely over traffic, but over all intercommunication between the colonies themselves, or either of them, and the outside world.
Profoundly as the framers differed in other respects, it is clear that the absolute power which each constituent State had theretofore had over its external relations, of whatsoever nature, and which was denominated by the comprehensive word “commerce,” should pass to the Federal government. No residuum was left in the States. The purpose clearly was to empower Congress “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” 2 Madison Papers, 859.
To remedy these evils the constitutional convention of 1787 was called, and so clearly were all delegates agreed as to the
The power, therefore, that was taken from the States and vested in the United States was the power of each constituent State over its external relations, and in its transfer to the Federal government it was in no respect diminished, except by certain express limitations in the Federal compact, such as the prohibition of any preference of the port of one State over the port of another State (art. 1, sec. 9, par. 6) and the prohibition of duties upon exports (art. 1, sec. 9, par. 5) and of clearance duties (art. 1, sec. 9, par. 6).
With these minor limitations the delegated power was as exhaustive and plenary as that which it was intended to supersede. The question, therefore, as to what commerce is under the Federal Constitution necessarily depends upon what commerce was regarded to be by the colonies prior to the formation of the Constitution. Commerce meant the intercourse or intercommunication of a colony with the other colonies and the rest of the world, either by the importation or exportation of goods or by the ingress or egress of individuals, and was not confined to mere traffic in purchasable commodities.
This view of the nature of commerce was accepted by this court in the leading case of Gibbons v. Ogden, 9 Wheat. 1, and, far from being weakened, has been supported and confirmed by subsequent adjudications until it should be regarded as beyond controversy.
In that case, Marshall defined commerce as “intercourse.” This is doubly true of this age of steam and electricity, when the States of the Union are indissolubly bound together by shining paths of steel, aggregating two hundred thousand miles in length. These lines of communication are the arteries through which the life blood of the nation courses, and the
This leading case, therefore, clearly established that commerce was more than traffic; that it was intercourse, and comprised intercommunication between the peoples of one country and another, whether by shipment of commodities, the transmission of intelligence, or by personal ingress and egress, and the sovereign power which each State formerly possessed over such external communication was the power which it delegated, subject to the limitations above averted to, to the Federal Government. Passenger Cases, 7 Howard, 282; County of Mobile v. Kimball, 102 U. S. 691; Gloucester Ferry Company v. Pennsylvania, 114 U. S. 196, 203; Pickard v. Pullman Southern Car Company, 117 U. S. 34.
If any doubt existed whether the transit of individuals was commerce, irrespective of the means of locomotion, it was set at rest by this court in the case of Covington Bridge Co. v. Kentucky, 154 U. S. 204, 218, where it was held that the mere passage of foot passengers from one side of the Ohio River to the other side is commerce. It is no answer to suggest that that involved an interstate highway in the form of a bridge, for it is obvious that the passage of citizens did not become commerce because they crossed an interstate highway, but the bridge was an instrumentality of commerce because of the transit of the people. Indeed, neither the transit of individuals nor the transportation of goods are essential to commerce. The mere transmission of intelligence is also commerce. Pensacola Telegraph Company v. The Western Union Telegraph Company, 96 U. S. 1; Western Union Telegraph Company v. Pendleton, 122 U. S. 347. There is no essential difference between foreign commerce and interstate commerce except as to the terminus a quo and the terminus ad quem. In both instances the idea of commerce is the same. Nothing is clearer than that the mere transit of
If the transit of persons from a foreign country to our country is commerce without respect to the purpose of their entrance into this country, then the same must be true of the transit of persons from State to State, assuming that foreign commerce is the same as interstate commerce, with the exception of the locus in quo. That they are identical is clearly established by the decisions of this court. Brown v. Houston, 114 U. S. 622; Bowman v. Chicago, 125 U. S. 465; Crutcher v. Kentucky, 141 U. S. 47; Pittsburg Coal Co. v. Bates, 156 U. S. 577.
2. Transportation of property for hire from State to State is commerce. The method of transportation is wholly unimportant. Conveyance of property for hire by a rowboat is as much commerce as by the largest steamship, and a wheelbarrow may be as completely an instrument of commerce as an express train. Transportation may be by hand and still be commerce. The telegraph boys, who deliver messages by hand, are engaged in commerce. See Western Union Telegraph Co. v. Pendleton, supra. In the cases at bar the carriage of things from State to State for hire is involved. The subject of the transportation is unimportant. Transportation is per se commerce.
A fair test of the soundness of the appellants’ contention is to ask whether the State of California could lawfully have passed a law taxing the transportation of the box of lottery matter from Dallas, Texas, to Fresno, California, or could the State of Ohio have taxed the carriage of the policy ticket from Newport, Kentucky, to Cincinnati, Ohio. Their impotence to do so is predicated on the theory that such carriage is commerce.
3. But, assuming that the character of the thing conveyed or transported is an important question, I submit that lottery tickets—title to which passes by delivery and which from time immemorial have been subject of barter and sale—are articles of commerce. Congress has held them to be articles of com-
Without regard to this legislative declaration, however, it seems clear that lottery tickets are articles of commerce in the sense that they are things which have been for many generations the subjects of barter and sale. It is true that under the stress of repressive legislation the traffic in them in this country has materially lessened, but the necessity of legislation under consideration clearly manifests that the traffic has by no means ceased, and is already of sufficient magnitude to justify the National Legislature in closing the channels of foreign and interstate commerce to this merchandise.
The fact that the United States and the various States have seen fit to make that illegal which was before legal cannot in any way affect the character of lottery tickets as articles which have been for centuries the subject of purchase and sale. Whether an article is or is not an article of commerce is dependent, not upon the question of its noxiousness or usefulness, nor upon the question whether the States have prohibited it within their borders in the exercise of their police power, but upon the fact as to whether such articles have been, in the ordinary and usual channels of trade, the subjects of purchase and sale. It is not a question of opinion as to their utility or mo-
The commercial power of the Union can extend to written instruments, where they effect or are instruments of the purchase and sale of property interests. Almy v. California, 24 Howard, 169; Woodruff v. Parham, 8 Wall. 123; Fairbanks v. United States, 181 U. S. 283.
The insurance cases, carefully read, are not authority for the proposition that a written instrument, like a bond or lottery ticket, which passes title to property upon delivery, may not be a commercial commodity. It will be noticed that this court has never had the question squarely presented whether Congress may enact legislation regulating the interstate insurance business. In reading the court‘s opinion upon these insurance cases the question actually presented to the court must be kept in mind. Woodruff v. Parham, 8 Wall. 123, 138. The precise point decided is that the insurance business is not so commercial in character that a State is obliged to admit such foreign insurance corporations. The foundation of all these decisions was that such corporations, being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created, and that, therefore, their right to do business in another State depends upon the grace of such State, which can impose terms or restrain altogether.
All these cases were predicated upon the fact that the method of transacting the business made the transactions intra-state and not interstate. The contract of insurance was completed within the borders of the State in which the insured had his domicil, the insuring company acting through a local representative, of whom Mr. Justice White said, in Hooper v. California, 155 U. S. 648, that “in the discharge of his business he is the representative of both parties to a certain extent.” See also Paul v. Virginia, 8 Wall. 168.
4. That the power to prohibit is absolute, and the legislature is the final judge of the wisdom of its exercise, seems to be clearly established upon both principle and authority.
The most familiar exercise of the power to regulate commerce in the minds of the men who framed the Federal Constitution was, doubtless, the total or partial prohibition of traffic in particular articles. This was often accomplished by duties; and those duties, so far as they were laid for prohibition, total or partial, and not for revenue, were regarded as regulations of commerce. Refer to the journals of the Continental Congress, vol. 1, pp. 28, 175, 176; vol. 2, p. 189; the examination of Dr. Benjamin Franklin at the bar of the House of Commons on February 7, 1776 (1 Bigelow‘s Life of Franklin, pp. 478, 479); John Dickinson‘s “Letters from a Farmer,” published in 1768, pp. 15, 18-19, 37-42, 43 (note), 60, 61, 66; Dr. Franklin‘s letter to Joseph Galloway of February 25, 1775 (8 Spark‘s Franklin‘s Works, p. 146); John Adams‘s letter to Jay of July 19, 1785 (Works of John Adams, vol. 8, pp. 282, 283). The same view was maintained by the leading jurists and statesmen of the first two generations after the adoption of the Constitution; and with practical unanimity they based the protective tariff duties on the commerce clause of the Constitution. 1 Story on the Constitution, sec. 963; 2 Story, 1080 et seq.; James Madison‘s letter to Joseph C. Cabell of March 22, 1827 (Writings of James Madison; vol. 3, p. 571); his letter to Cabell of September 18, 1828 (3 Madison, p. 636); Henry Clay‘s reply to Barbour, March 31, 1824 (Annals of Congress, p. 1994); Gulian C. Verplanck‘s letter to Drayton, New York, 1831, pp. 21-23; Speech of Thomas Smith Grimké, etc., Charleston, 1829, p. 51. Apart from the history of the period and the utterances of contemporaneous writers, the Constitution itself affords the most convincing proof that the right to regulate included the right to prohibit. This is shown beyond question when we consider the great compromises of the Constitution. So clearly did the framers recognize that the power to regulate commerce would include the power to prohibit, that they inserted an express exception to such power.Then followed the passage by Congress of the act of August 8, 1890, 26 Stat. 313, c. 728, providing “that all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein for use, consumption, sale or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” That act was sustained in the Rahrer case as a valid exercise of the power of Congress to regulate commerce among the States.
In Rhodes v. Iowa, 170 U. S. 412, 426, that statute—all of its provisions being regarded—was held as not causing the power of the State to attach to an interstate commerce shipment of intoxicating liquors “whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and delivery there to the consignee.”
Thus under its power to regulate interstate commerce, as in-
It is said, however, that if, in order to suppress lotteries carried on through interstate commerce, Congress may exclude lottery tickets from such commerce, that principle leads necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the States any article, commodity or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one State to another. It will be time enough to consider the constitutionality of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the States. We may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress to regulate commerce among the States, although plenary, cannot be deemed arbitrary, since it is subject to such limitations or restrictions as
The whole subject is too important, and the questions suggested by its consideration are too difficult of solution, to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the commerce clause. We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them; that the carriage of such tickets by independent carriers from one State to another is therefore interstate commerce; that under its power to regulate commerce among the several States Congress—subject to the limitations imposed by the Constitution upon the exercise of the powers granted—has plenary authority over such commerce, and may prohibit the carriage of such tickets from State to State; and that legislation to that end, and of that character, is not incon-
The judgment is
Affirmed.
MR. CHIEF JUSTICE FULLER, with whom concur MR. JUSTICE BREWER, MR. JUSTICE SHIRAS and MR. JUSTICE PECKHAM, dissenting.
Although the first section of the act of March 2, 1895, 28 Stat. 963, c. 191, is inartificially drawn, I accept the contention of the Government that it makes it an offence (1) to bring lottery matter from abroad into the United States; (2) to cause such matter to be deposited in or carried by the mails of the United States; (3) to cause such matter to be carried from one State to another in the United States; and further, to cause any advertisement of a lottery or similar enterprise to be brought into the United States, or be deposited or carried by the mails, or transferred from one State to another.
The case before us does not involve in fact the circulation of advertisements and the question of the abridgement of the freedom of the press; nor does it involve the importation of lottery matter, or its transmission by the mails. It is conceded that the lottery tickets in question, though purporting to be issued by a lottery company of Paraguay, were printed in the United States, and were not imported into the United States from any foreign country.
The naked question is whether the prohibition by Congress of the carriage of lottery tickets from one State to another by means other than the mails is within the powers vested in that body by the Constitution of the United States. That the purpose of Congress in this enactment was the suppression of lotteries cannot reasonably be denied. That purpose is avowed in the title of the act, and is its natural and reasonable effect, and by that its validity must be tested. Henderson v. Mayor &c., 92 U. S. 259, 268; Minnesota v. Barber, 136 U. S. 313, 320.
The power of the State to impose restraints and burdens on persons and property in conservation and promotion of the pub-
It is urged, however, that because Congress is empowered to regulate commerce between the several States, it, therefore, may suppress lotteries by prohibiting the carriage of lottery matter. Congress may indeed make all laws necessary and proper for carrying the powers granted to it into execution, and doubtless an act prohibiting the carriage of lottery matter would be necessary and proper to the execution of a power to suppress lotteries; but that power belongs to the States and not to Congress. To hold that Congress has general police power would be to hold that it may accomplish objects not entrusted to the General Government, and to defeat the operation of the Tenth Amendment, declaring that:
The ground on which prior acts forbidding the transmission of lottery matter by the mails was sustained, was that the power vested in Congress to establish post offices and post roads embraced the regulation of the entire postal system of the country, and that under that power Congress might designate what might be carried in the mails and what excluded. In re Rapier, 143 U. S. 110; Ex parte Jackson, 96 U. S. 727.
In the latter case, Mr. Justice Field, delivering the unanimous opinion of the court, said: “But we do not think that Congress possesses the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and prevent rival postal systems, it may perhaps prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted, consisting of letters, and of newspa-
Certainly the act before us cannot stand the test of the rule laid down by Mr. Justice Miller in the Trade-Mark Cases, 100 U. S. 82, 96, when he said: “When, therefore, Congress undertakes to enact a law, which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several States, or with the Indian tribes. If not so limited, it is in excess of the power of Congress.”
But apart from the question of bona fides, this act cannot be brought within the power to regulate commerce among the several States, unless lottery tickets are articles of commerce, and, therefore, when carried across state lines, of interstate commerce; or unless the power to regulate interstate commerce includes the absolute and exclusive power to prohibit the transportation of anything or anybody from one State to another.
Mr. Justice Catron remarked in the License Cases, 5 How. 504, 600, that “that which does not belong to commerce is within the jurisdiction of the police power of the State; and that which does belong to commerce is within the jurisdiction of the United States;” and the observation has since been repeatedly quoted by this court with approval.
In United States v. E. C. Knight Company, 156 U. S. 1, 13, we said: “It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality. It will be perceived how far reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the
It cannot be successfully contended that either Congress or the States can, by their own legislation, enlarge their powers, and the question of the extent and limit of the powers of either is a judicial question under the fundamental law.
If a particular article is not the subject of commerce, the determination of Congress that it is, cannot be so conclusive as to exclude judicial inquiry.
When Chief Justice Marshall said that commerce embraced intercourse, he added, commercial intercourse, and this was necessarily so since, as Chief Justice Taney pointed out, if intercourse were a word of larger meaning than the word commerce, it could not be substituted for the word of more limited meaning contained in the Constitution.
Is the carriage of lottery tickets from one State to another commercial intercourse?
The lottery ticket purports to create contractual relations and to furnish the means of enforcing a contract right.
This is true of insurance policies, and both are contingent in their nature. Yet this court has held that the issuing of fire, marine, and life insurance policies, in one State, and sending them to another, to be there delivered to the insured on payment of premium, is not interstate commerce. Paul v. Virginia, 8 Wall. 168; Hooper v. California, 155 U. S. 648; New York Life Insurance Company v. Cravens, 178 U. S. 389.
In Paul v. Virginia, Mr. Justice Field, in delivering the unanimous opinion of the court, said: “Issuing a policy of insurance is not a transaction of commerce. The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of com-
This language was quoted with approval in Hooper v. California, 155 U. S. 648, and it was further said: “If the power to regulate interstate commerce applied to all the incidents to which said commerce might give rise and to all contracts which might be made in the course of its transaction, that power would embrace the entire sphere of mercantile activity in any way connected with trade between the States; and would exclude state control over many contracts purely domestic in their nature. The business of insurance is not commerce. The contract of insurance is not an instrumentality of commerce. The making of such a contract is a mere incident of commercial intercourse, and in this respect there is no difference whatever between insurance against fire and insurance against ‘the perils of the sea.‘” Or, as remarked in New York Life Insurance Company v. Cravens, 178 U. S. 389, “against the uncertainty of man‘s mortality.”
The fact that the agent of the foreign insurance company negotiated the contract of insurance in the State where the contract was to be finally completed and the policy delivered, did not affect the result. As Mr. Justice Bradley said in the leading case of Robins v. Shelby County Taxing District, 120 U. S. 489: “The negotiation of sales of goods which are in an-
Tested by the same reasoning, negotiable instruments are not instruments of commerce; bills of lading are, because they stand for the articles included therein; hence it has been held that a State cannot tax interstate bills of lading because that would be a regulation of interstate commerce, and that Congress cannot tax foreign bills of lading, because that would be to tax the articles exported, and in conflict with
In Nathan v. Louisiana, 8 How. 73, it was held that a broker dealing in foreign bills of exchange was not engaged in commerce, but in supplying an instrumentality of commerce, and that a state tax on all money or exchange brokers was not void as to him as a regulation of commerce.
And in Williams v. Fears, 179 U. S. 270, that the levy of a tax by the State of Georgia on the occupation of a person engaged in hiring laborers to be employed beyond the limits of the State, was not a regulation of interstate commerce, and that the tax fell within the distinction between interstate commerce or an instrumentality thereof, and the mere incidents that might attend the carrying on of such commerce.
In Cohens v. Virginia, 6 Wheat. 264, 440, Congress had empowered the corporation of the city of Washington to “authorize the drawing of lotteries for effecting any improvement in the city, which the ordinary funds or revenue thereof will not accomplish.” The corporation had duly provided for such lottery, and this case was a conviction under a statute of Virginia for selling tickets issued by that lottery. That statute forbade the sale within the State of any ticket in a lottery not authorized by the laws of Virginia.
The court held, by Chief Justice Marshall, that the lottery was merely the emanation of a corporate power, and “that the
The constitutionality of the act of Congress, as forcing the sale of tickets in Virginia, was therefore not passed on, but if lottery tickets had been deemed articles of commerce, the Virginia statute would have been invalid as a regulation of commerce, and the conviction could hardly have been affirmed, as it was.
In Nutting v. Massachusetts, 183 U. S. 553, 556, Mr. Justice Gray said: “A State has the undoubted power to prohibit foreign insurance companies from making contracts of insurance, marine or other, within its limits, except upon such conditions as the State may prescribe, not interfering with interstate commerce. A contract of marine insurance is not an instrumentality of commerce, but a mere incident of commercial intercourse. The State, having the power to impose conditions on the transaction of business by foreign insurance companies within its limits, has the equal right to prohibit the transaction of such business by agents of such companies, or by insurance brokers, who are to some extent the representatives of both parties.”
If a State should create a corporation to engage in the business of lotteries, could it enter another State, which prohibited lotteries, on the ground that lottery tickets were the subjects of commerce?
On the other hand, could Congress compel a State to admit lottery matter within it, contrary to its own laws?
In Alexander v. State, 86 Georgia, 246, it was held that a state statute prohibiting the business of buying and selling what are commonly known as “futures,” was not protected by the commerce clause of the Constitution, as the business was gambling, and that clause protected interstate commerce but did not protect interstate gambling. The same view was expressed in State v. Stripling, 113 Alabama, 120, in respect of an act forbidding the sale of pools on horse races conducted without the State.
In Ballock v. Maryland, 73 Maryland, 1, it was held that when the bonds of a foreign government are coupled with conditions and stipulations that change their character from an
So lottery tickets forbidden to be issued or dealt in by the laws of Texas, the terminus a quo, and by the laws of California or Utah, the terminus ad quem, were not vendible; and for this reason also not articles of commerce.
If a lottery ticket is not an article of commerce, how can it become so when placed in an envelope or box or other covering, and transported by an express company? To say that the mere carrying of an article which is not an article of commerce in and of itself nevertheless becomes such the moment it is to be transported from one State to another, is to transform a non-commercial article into a commercial one simply because it is transported. I cannot conceive that any such result can properly follow.
It would be to say that everything is an article of commerce the moment it is taken to be transported from place to place, and of interstate commerce if from State to State.
An invitation to dine, or to take a drive, or a note of introduction, all become articles of commerce under the ruling in this case, by being deposited with an express company for transportation. This in effect breaks down all the differences between that which is, and that which is not, an article of commerce, and the necessary consequence is to take from the States all jurisdiction over the subject so far as interstate communication is concerned. It is a long step in the direction of wiping out all traces of state lines, and the creation of a centralized Government.
Does the grant to Congress of the power to regulate interstate commerce impart the absolute power to prohibit it?
It was said in Gibbons v. Ogden, 9 Wheat. 1, 211, that the right of intercourse between State and State was derived from “those laws whose authority is acknowledged by civilized man throughout the world;” but under the Articles of Confederation the States might have interdicted interstate trade, yet
“But if that power of regulation is absolutely unrestricted as respects interstate commerce, then the very unity the Constitution was framed to secure can be set at naught by a legislative body created by that instrument.” Dooley v. United States, 183 U. S. 151, 171.
It will not do to say—a suggestion which has heretofore been made in this case—that state laws have been found to be ineffective for the suppression of lotteries, and therefore Congress should interfere. The scope of the commerce clause of the Constitution cannot be enlarged because of present views of public interest.
In countries whose fundamental law is flexible it may be that the homely maxim, “to ease the shoe where it pinches,” may be applied, but under the Constitution of the United States it cannot be availed of to justify action by Congress or by the courts.
The Constitution gives no countenance to the theory that Congress is vested with the full powers of the British Parliament, and that, although subject to constitutional limitations, it is the sole judge of their extent and application; and the decisions of this court from the beginning have been to the contrary.
“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” asked Marshall, in Marbury v. Madison, 1 Cranch, 137, 176.
“Should Congress,” said the same great magistrate in McCulloch v. Maryland, 4 Wheat. 316, 423, “under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”
It is argued that the power to regulate commerce among the several States is the same as the power to regulate commerce with foreign nations, and with the Indian tribes. But is its scope the same?
As in effect, before observed, the power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothed Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the States. The laws which would be necessary and proper in the one case, would not be necessary or proper in the other.
Congress is forbidden to lay any tax or duty on articles exported from any State, and while that has been applied to exports to a foreign country, it seems to me that it was plainly intended to apply to interstate exportation as well; Congress is forbidden to give preference by any regulation of commerce or revenue to the ports of one State over those of another; and duties, imposts and excises must be uniform throughout the United States.
Mr. Justice Miller, in the Slaughter-House Cases, 16 Wall. 36, 75, says that there can be but little question that the purpose of the fourth Article of the Confederation, and of this particular clause of the Constitution, “is the same, and that the privileges and immunities intended are the same in each.”
Thus it is seen that the right of passage of persons and property from one State to another cannot be prohibited by Congress. But that does not challenge the legislative power of a sovereign nation to exclude foreign persons or commodities, or place an embargo, perhaps not permanent, upon foreign ships or manufactures.
The power to prohibit the transportation of diseased animals and infected goods over railroads or on steamboats is an entirely different thing, for they would be in themselves injurious to the transaction of interstate commerce, and, moreover, are essentially commercial in their nature. And the exclusion of diseased persons rests on different ground, for nobody would pretend that persons could be kept off the trains because they were going from one State to another to engage in the lottery business. However enticing that business may be, we do not understand these pieces of paper themselves can communicate bad principles by contact.
The same view must be taken as to commerce with Indian tribes. There is no reservation of police powers or any other to a foreign nation or to an Indian tribe, and the scope of the power is not the same as that over interstate commerce.
In United States v. 43 Gallons of Whiskey, 93 U. S. 188, 194, Mr. Justice Davis said: “Congress now has the exclusive and absolute power to regulate commerce with the Indian tribes,—a power as broad and free from restrictions as that to regulate commerce with foreign nations. The only efficient way of dealing with the Indian tribes was to place them under the protection of the General Government. Their peculiar habits and character required this; and the history of the country shows the necessity of keeping them ‘separate, subordinate, and dependent.’ Accordingly, treaties have been made and laws passed
I regard this decision as inconsistent with the views of the framers of the Constitution, and of Marshall, its great expounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions, the form may survive the substance of the faith.
In my opinion the act in question in the particular under consideration is invalid, and the judgments below ought to be reversed, and my brothers BREWER, SHIRAS and PECKHAM concur in this dissent.