Lottery Case

Me. Chief Justice Fullee,

with whom concur Me. Justice Beewee, Me. Justice Shieas and Me. Justice Pecicham,

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 iri 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-lie health, good order and prosperity is a power originally and always belonging to the States, not surrendered by them to the General Government nor directly restrained by the Constitution of the United States, and essentially exclusive, and the suppression of lotteries as a harmful business falls within this power, commonly called of police. Douglas v. Kentucky, 168 U. S. 488.

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 powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The ground on which prior acts forbidding the transmission of lottery matter by the mails was sustained, Avas 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 Avhat 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 Avhen thr Constitution Avas adopted, consisting of letters, and of newspa pers and pamphlets, when not sent as merchandise; but further than this its power of prohibition cannot extend.” And this was repeated in the case of Rapier.

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 po.wer 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, 166 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, howrever 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 General Government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce and not to matters of internal police.” This case was adhered to in Addyston Pipe and Steel Company v. United States, 175 U. S. 211, where it was decided that Congress could prohibit the performance of contracts, whose natural effect, when carried out, would be to directly regulate interstate and foreign commerce.

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 tieket'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 Staie, 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 thé 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 commerce in any proper meaning of the word. They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different States. The policies do not take effect — -are not executed contracts — until delivered by the agent in Yirginia. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the States any more than a contract for the purchase and sale of goods in Yirginia by a citizen of New York whilst in Yirginia would constitute a portion of such commerce.”

This language ivas 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 another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce.” And see Collins v. New Hampshire, 171 U. S. 30, and other cases.

Tested by the same reasoning, negotiable instruments are not instruments of commerce; bills of lading are, because they 'sta,nd 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 Article I, § .9, cl. 5, of the Constitution of the United States, that “ No tax or duty shall be laid on articles exported from any State.” Fairbank v. United States, 181 U. S. 283.

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 commérce, 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 mind of Congress was not directed to any provision for the sale of the tickets beyond the limits of the corporation.”

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 commórce ?

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 chang’e their character from an obligation for the payment of a certain sum of money to a species of lottery tickets condemned by the police regulations of the State, the prohibition of their sale did not violate treaty stipulation or constitutional provision. Such bonds with such conditions and stipulations ceased to be vendible under the law.

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 TTtah, 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 eifect 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 Confedera tion the States might have interdicted interstate trade, yet when they surrendered the power to deal with commerce, as between themselves to the General Government it was undoubtedly in order to form a more perfect union by freeing--, such commerce from state discrimination, and not to transfer the power of restriction.

“ 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 nainful 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,”

And so Chief Justice Taney, referring to the extent and limits of the powers of Congress: “ As the Constitution itself does, not draw the line, the question is necessarily one for judicial decision, and depending altogether upon the words of the Constitution.”

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.

“ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” This clause of the second section of Article IY was taken from the fourth Article of Confederation, which provided that “ the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and egress to and from any other State, and shall enjoy therein all the ■privileges of trade and commerce;” while other parts of the same article were also brought forward in Article IY of the Constitution.

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 separating Indian territory from that of the State, and providing that intercourse and trade with the Indians should be carried on solely under the authority of the United States.”

I regard tins 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, find my brothers Beeweb, Shieas and Peckham concur in this dissent.