Lottery Case, 188 U.S. 321 (1903)

Sai an-American Lottery Company were so divided as [p. 324] to be called whole, half, quarter and eighth tickets, the whole tickets to be sold for the sum of two dollars, the half tickets for the sum of one dollar, the quarter tickets for the sum of fifty cents and the eighth tickets for the sum of twenty-five cents.”

e power to regulate lotteries, and to permit or prohibit [p. 326] the sale of lottery tickets, is exclusively within the jurisdiction of the police power reserved to the States.

lottery ticket, in all its aspects, is of the same nature as an .nsurance policy, which represents an analogous form of wager-contract. Both forms of contract depend upon chance and certain events, and in principle cannot be distinguished in eir nature. Pothier’s Obligations, Evans’ Transl. vol. I, pp. [p. 328] 9-10; Louisiana Civil Code, act 1776; Civil Code of Spain of 1889, title XII, U. S. Govt. Transl. 1899, pp. 230-232; May on Insurance (4th ed.), vol. 1, p. 5 ; Clark on Contracts, pp. 405-406; Lawson on Contracts, secs. 284-287; Hollingsworth on Contracts, pp. 229-232; Anson on Contracts (2d Am. ed.), pp. 232-233; Angell on Fire and Life Insurance, pp. 12,14; Joyce on Insurance, vol. 1, secs. 2, 7; Emerigon, Meredith’s Transl. p. 13; Richards on Insurance, sec. 20.

urther, if the Constitution delegated to Congress the express ower to prohibit interstate commerce, that grant would not on er the power to prohibit directly or indirectly what was erstate commerce. If Congress may prohibit the transeratu (^sease(^ an^raals or infected goods or obscene litnatUrej F ^ecause theJ are essentially commercial in their ure, and hence they are dealing with subjects of commerce. [p. 330] Such prohibition may be necessary and proper in order to protect the instrumentalities of interstate commerce and to safeguard such commerce. But this would not sanction the prohibition of things not constituting commerce, any more than Congress could forbid a citizen to go from one State to another on any business he saw fit and whatever his purpose might be.

States and their local preferences, would be a departure lc would cause much astonishment and opposition and be [p. 332] of doubtful constitutionality because of interference with the rightful jurisdiction of the States, whilst the legislation discussed in the Rahrer case involved the exercise by Congress of a power which recognizes to the fullest extent the jurisdiction of any State to permit or prohibit, according to its local policy. As to attempt to prevent the circulation of anti-slavery publications from one State to another by excluding them from the United States mails, see 49 Niles’ Register, 228; North Carolina, 1830, Laws, vol. 14, p. 10, and Maryland, 1831; 49 Niles’ Register, 228. Cf. Rev. Sts. La. 1852 ; 48 Niles’ Register, 447-448 ; 49 Niles’ Register, 7-8; Cong. Globe, 24th Cong. 1st Sess. 10, 164, 165, 347; Cong. Globe, 24th Cong. 1st Sess. App. 348, 453, 454, 539.

Second. The article carried must be a recognized article o [p. 335] commerce, otherwise if the article has ceased to be such, Congress no longer has any power over it.

Was° these evils the constitutional convention of 1787 ca ed, and so clearly were all delegates agreed as to the [p. 336] wisdom of taking from the thirteen States all control over their external relations, whether intercolonial or foreign, that the clause of the Constitution which was designed to effectuate this (art. 7, sec. 1) was passed without a dissenting voice and with comparatively little debate. While they did not in this section define commerce, yet they threw a searchlight on their meaning in a subsequent section, whose history clearly reveals their purposes. Art. 1, sec. 9.

In that case, Marshall defined commerce as “ ^n^rcoal^11 This is doubly true of this age of steam and electricity, w the States of the Union are indissolubly bound toget er shining paths of steel, aggregating two hundred thousan in length. These lines of communication are the ar through which the life blood of the nation courses, an [p. 337] telegraph wires are the sensitive nerves of our complex social system. Commerce is the life blood of intercommunication, and comprehends every object to which the steamship, the railroad, the telegraph, or other form of conveyance can be applied, and the transportation of merchandise, which is intended for sale, is but one of many incidents to this comprehensive view of commerce, as Marshall’s clear insight saw it.

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 Corington Fridge 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 °t er side is commerce. It is no answer to suggest that that invo ved an interstate highway in the form of a bridge, for it s o vious that the passage of citizens did not become commerce ^ecause they crossed an interstate highway, but the bridge was instrumentality of commerce because of the transit of the doT t' ^n<^ee<^5 neither the transit of individuals nor the trans-mi 3 I01\0^ g°°ds are essential to commerce. The mere transCot On ° intelligence is also commerce. Pensacola Telegraph 1- V Western Union Telegraph Company, 96 IT. S. 374 Union Telegraph Company v. Pendleton, 122 U. S. and int n° essen^ai difference between foreign commerce terminu rS^e connnerce except as to the terminus a quo and the the §a S 0 ^em' b°th instances the idea of commerce is othing is clearer than that the mere transit of vol. clxxxviii—22 [p. 338] persons arriving at our ports of entry is, without reference to traffic, the subject of Congressional regulation, because it is commerce. People v. Compagnie, 107 U. S. 59 ; Head Money Cases, 112 U. S. 580 ; Henderson v. Mayor, 92 U. S. 259; Nishimura Ekiu v. United States, 142 U. S. 651.

3. But, assuming that the character of the thing conveye^ transported is an important question, I submit that o, tickets—title to which passes by delivery and which ^r0^?|eg immemorial have been subject of barter and sale-—are of commerce. Congress has held them to be articles o [p. 339] merce, and this court has ruled that the judgment of the legislative branch of the government is, in this respect, controlling upon the judiciary. In this respect there is a clear distinction between the effect of state statutes and acts of Congress. Unquestionably no state statute, by any declaration as to what is an article of commerce, could trench upon the supreme authority of the Federal government with regard to commerce, and therefore state statutes which have sought to prohibit altogether certain forms of traffic have been held not to divest the articles m question of their commercial character, or to forbid their importation into a State in the original package. But when Congress, by legislation, recognizes a traffic in a given form of property, the judiciary will not question the/W of such traffic • or the commercial character of the article thus bought or sold, but will simply consider whether Congress has exceeded its authority with reference to the subject matter of the legislation. Leisy v. Hardin, 135 U. S. 100 ; In re Rohrer, 140 U. S. 545.

Is not a question of opinion as to their utility or [p. 340] morality. It is a question of fact. Any article that men buy or sell is an article of commerce, and as such within the power of Congress when its exchange is interstate in its character. SMlenberger v. Pennsylvania, 171 IT. S. 1, 7, 8.

all the hJnf\er^° re^uiate did not include the right to prohibit, e iscussion in the Constitutional Convention on [p. 342] the prohibition of the slave trade was a case of “ much ado about nothing.”

The principle has in effect already been decided by t is co States have undertaken in the interests of the public hea [p. 343] exclude importations of a certain kind from other States, and their legislation has been held by this court to be unconstitutional. Railroad Co. v. Husen, 95 IT. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Rebman, 136 U. S. 78; Voight v. Wright, 141 IT. S. 62. These laws were not held to be void, because they in effect levied taxes upon imports ; for it is well settled that the word “ imports ” in the Constitution refers only to articles brought in from foreign countries. License Cases, 5 How. 504, 623; Woodruff v. Pa/rham, 8 Wall. 123; Brown v. Houston, 114 U. S. 622, 628; Coe v. Errol, 116 U. S. 517, 526; Pittsburg Co. v. Louisiana, 156 IT. S. 590, 600.

isregarding the mere form of words, and looking to the subs ance of this act, in connection with state legislation, it was a ous th of transportation to that State. It is obviw.s at the power to pass such a law could not depend in any anTth^011 s^e statute, but must be inherent in Congress, har .ere^orean absolute prohibition of transportation would 'e een valid if there had been no state statute. This court [p. 344] held the virtual prohibition of the transportation of liquors to certain States a valid exercise of constitutional power.

The appellant insists that the carrying of lottery tickets from one State to another State by an express company engaged in carrying freight and packages from State to State, althoug such tickets may be contained in a box or package, does no constitute, and cannot by any act of Congress be legally ma to constitute, commerce among the States within the meani o of the clause of the Constitution of the United States providing that Congress shall have power “ to regulate commerce [p. 345] foreign nations, and among the several States, and with the Indian tribes;” consequently, that Congress cannot make it an offence to cause such tickets to be carried from one State to another.

t is contended by the parties that these questions are an-in ^ormer decisions of this court, the Government roS1Sfln^ . ^le principles heretofore announced support its pellant15 con^rar^ confidently asserted by the apdecisio 18 ma^es necessary to ascertain the import of such SOmS1Ons‘ UP°n that inquiry we now enter, premising that pnnir°^0S1^0I1S were advanced in argument that need not be best t 1 i- ln tile exammatlon of former judgments it will be render d°° ^em somewhat in the order in which they were the narf* hen Pri°r adjudications have been thus collated case m ^roun^s uPon which the judgment in the present us necessarily rest can be readily determined. We may [p. 346] here remark that some of the cases referred to may not bear directly upon the questions necessary to be decided, but attention will be directed to them as throwing light upon the general inquiry as to the meaning and scope of the commerce clause of the Constitution.

fr. Justice Johnson, in the same case, expressed his entire approbation of the judgment rendered by the court, but delivered a separate opinion indicating the precise grounds upon which is conclusion rested. Referring to the grant of power over commerce, he said: “My opinion is founded on the application ° e Wor(^s the grant to the subject of it. The ‘ power to eou ate commerce,’ here meant to be granted, was that power o regu ate commerce which previously existed in the States, su^w at was that power? The States were, unquestionably, preme; and each possessed that power over commerce, which law fto reside in every sovereign State. . . . The all ° nati°nS’ re£ardin£ man as a social animal, pronounces Onai]tlei'ce legitimate, in a state of peace, until prohibited uierceS1fbVe Power a sovereign State over comlimit a dGI>e °re’ amoun^s nothing more than a power to an restrain it at pleasure. And since the power to [p. 348] prescribe the limits to its freedom, necessarily implies the power to determine what shall remain unrestrained, it follows that the power must be exclusive; it can reside but in one potentate; and hence, the grant of this power carries with it the whole subject, leaving nothing for the State to act upon.”

In the Passenger Cases, 7 How. 283, the court adjudged certain statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving in the ports of those States, to be in violation of the Constitution and laws of the United States-In the separate opinions delivered by the Justices there w not be found any expression of doubt as to the doctrines a nounced in Gibbons n. Ogden. Mr. Justice McLean said: Com merce is defined to be ‘ an exchange of commodities.’ Lu definition does not convey the full meaning of the term, includes ‘ navigation and intercourse.’ That the transporta ion of passengers is part of commerce is not now an open ques ion-Mr. Justice Grier said: “ Commerce, as defined by this cou’j means something more than traffic—it is intercourse; power committed to Congress to regulate commerce is » cised by prescribing rules for .carrying on that intercourse^ The same views were expressed by Mr. Justice Wayne, m separate opinion. He regarded the question then be or [p. 349] court as covered by the decision in Gibbons n. Ogden, and in respect to that case he said : “ It will always be a high and honorable proof of the eminence of the American bar of that day, and of the talents and distinguished ability of the Judges who were then in the places which we now occupy.” Mr. Justice Catron and Mr. Justice McKinley announced substantially the same views.

In Henderson &c. v. Mayor &c., 92 U. S. 259, 270, which involved the constitutional validity of a statute of New York rea mg to vessels bringing passengers to that port, this court, spea mg by Mr. Justice Miller, said: “ As already indicated, th Pr?visi°ns °f the Constitution of the United States, on which e principal reliance is placed to make void the statute of New or, is that which gives to Congress the power ‘ to regulate v With forei8nnations.’ As was said in United States o % ay, 3 Wall. 417, 6 commerce with foreign nations citirJ COmmerce between citizens of the United States and and itS °r Subjects of foreign governments.’ It means trade, twAPn me^ns intercourse. It means commercial intercourse becludes J°nS’.an(^ Parts of nations, in all its branches. It interennr^'1^3«1011’ aS Principal means by which foreign in-is e ected, To regulate this trade and intercourse is [p. 350] to prescribe the rules by which it shall be conducted. ‘ The mind,’ says the great Chief Justice, ‘can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of one nation into the ports of another; ’ and he might have added, with equal force, which prescribed no terms for the admission of their cargo or their passengers. Gibbons v. Ogden, 9 Wheat. 190.”

The question of the scope of the commerce clause was again considered in Pensacola Tel. Co. n. Western Union Tel. Co., 96 U. S. 1, 9, 12, involving the validity of a statute of Florida, which assumed to confer upon a local telegraph company the exclusive right to establish and maintain lines of electric telegraph in certain counties of Florida. This court held the act to be unconstitutional. Chief Justice Waite, delivering its judgment, said: “ Since the case of Gibbons v. Ogden, 9 Wheat. 1, it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress. Post offices and post roads are established to faciliate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress, because, being national in their operation, they should be under the protecting care of the National Government. The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the gov ernment of the business to which they relate, at all times an under all circumstances. As they were entrusted to the Gen eral Government for the good of the nation, it is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are no [p. 351] obstructed or unnecessarily encumbered by state legislation. The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the habits of business, and become one of the necessities of commerce. It is indispensable as a means of intercommunication, but especially is it so in commercial transactions.” In his dissenting opinion in that case Mr. Justice Field speaks of the importance of the telegraph “ as a means of intercourse,” and of its constant use in commercial transactions.

Pickard v. Pullman Southern Car Company, 117 U. S. “th^ Sa^ settled by the adjudged cases that to tax th q traUSit Passengers from foreign countries or between e tates, is to regulate commerce.” ^ln Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 356, am C0Ur, recoSnized the commerce with foreign countries and not°n£/ 6 States which Congress could regulate as including On y the exchange and transportation of commodities, or [p. 352] visible, tangible things, but the carriage of persons, and the transmission by telegraph of ideas, wishes, orders and intelligence. See also Katterman v. Tel. Co., 127 IT. S. 411, and Leloup v. Port of Mobile, 127 IT. S. 640.

This reference to prior adjudications could be extende i 1 were necessary to do so. The cases cited however sufficien J indicate the grounds upon which this court has proceede w determining the meaning and scope of the commerce c They show that commerce among the States embraces naV1° tion, intercourse, communication, traffic, the transit of pers ’ [p. 353] and the transmission of messages by telegraph. They also show that the power to regulate commerce among the several States is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States; that such power is plenary, complete in itself, and may be exerted by Congress to its utmost extent, subject only to such limitations as the Constitution imposes upon the exercise of the powers granted by it; and that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts, simply because, in their opinion, such regulations may not be the best or most effective that could be employed.

It was said in argument that lottery tickets are not of any real or substantial value in themselves, and therefore are not subjects of commerce. If that were conceded to be the only egal test as to what are to be deemed subjects of the commerce at may be regulated by Congress, we cannot accept as accurate t e broad statement that such tickets are of no value, pon their face they showed that the lottery company offered a arge capital prize, to be paid to the holder of the ticket inning the prize at the drawing advertised to be held at Asba0^11' araS'llay- Money was placed on deposit in different sent'S ln United States to be applied by the agents repre-Th 6 ^°^ery company to the prompt payment of prizes. sold86 1Cd etS Were ^le sut)ject °f traffic ; they could have been to hi 6 ^°^er was assur'ed that the company would pay not ha e amount of the prize drawn. That the holder might countr enf°rce his claim in the courts of any thp mJ Tx- lng drawing of lotteries illegal, and forbidding cu a ion of lottery tickets, did not change the fact that vol. clxxxviii —23 [p. 354] the tickets issued by the foreign company represented so much money payable to the person holding them and who might draw the prizes affixed to them. Even if a holder did not draw a prize, the tickets, before the drawing, had a money value in the market among those who chose to sell or buy lottery tickets. In short, a lottery ticket is a subject of traffic, and is so designated in the act of 1895. 28 Stat. 963. That fact is not without significance in view of what this court has said. That act, counsel for the accused well remarks, was intended to supplement the provisions of prior acts excluding lottery tickets from the mails and prohibiting the importation of lottery matter from abroad, and to prohibit the causing lottery tickets to be carried, and lottery tickets and lottery advertisements to be transferred, from one State to another by any means or method. 15 Stat. 196; 17 Stat. 302; 19 Stat. 90; Rev. Stat. § 3894; 26 Stat. 465 ; 28 Stat. 963.

It is to be remarked that the Constitution does not e ue what is to be deemed a legitimate regulation of interstate co merce. In Gibbons v. Ogden it was said that the PoW^r, regulate such commerce is the power to prescribe the rue which it is to be governed. But this general observation eav^ it to be determined, when the question comes before the co, whether Congress in prescribing a particular rule has ex its power under the Constitution. While our Governme [p. 355] must be acknowledged by all to be one of enumerated powers, McCulloch v. Maryland^ 4 Wheat. 316, 405, 407, the Constitution does not attempt to set forth all the means by which such powers may be carried into execution. It leaves to Congress a large discretion as to the means that may be employed in executing a given power. The sound construction of the Constitution, this court has said, “ must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” 4 Wheat. 421.

n determining whether regulation may not under some cirhihf anCeS ProPerly take the form or have the effect of probv th°n5 na^ure the interstate traffic which it was sought e act of May 2, 1895, to suppress cannot be overlooked. npon^r^0^1-^ ^tute Congress no doubt shared the views e subject of lotteries heretofore expressed by this court. [p. 356] In Phalen v. Virgi/nia, 8 How. 163, 168, after observing that the suppression of nuisances injurious to public health or morality is among the most important duties of Government, this court said : “ Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.” In other cases we have adjudged that authority given by legislative enactment to carry on a lottery, although based upon a consideration in money, was not protected by the contract clause of the Constitution; this, for the reason that no State may bargain away its power to protect the public morals, nor excuse its failure to perform a public duty by saying that it had agreed, by legislative enactment, not to do so. Stone v. Mississippi, 101 U. S. 814; Douglas v. Kentucky, 168 U. S. 488.

evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another ? In this connection it must not be forgotten that the power of Congress to regulate commerce among the States is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution. What provision in that instrument can be regarded as limiting the exercise of the power granted ? What clause can be cited which, in any degree, countenances the suggestion that on may, of right, carry or cause to be carried from one State another that which will harm the public morals ? We canI1° think of any clause of that instrument that could possib y invoked by those who assert their right to send lottery tic from State to State except the one providing that no person shall be deprived of his liberty without due process of a" We have said that the liberty protected by the Constitu io [p. 357] embraces the right to be free in the enjoyment of one’s faculties; “ to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts that may be proper.” Allgeyer v. Louisiana, 165 U. S. 578, 589. But surely it will not be said to be a part of any one’s liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to the public morals.

ou esitate long before adjudging that an evil of such [p. 358] appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce. What was said by this court upon a former occasion may well be here repeated : “ The framers of the Constitution never intended that the legislative power of the Nation should find itself incapable of disposing of a subject matter specifically committed to its charge.” In re Rohrer, 140 U. S. 545, 562. If the carrying of lottery tickets from one State to another be interstate commerce, and if Congress is of opinion that an effective regulation for the suppression of lotteries, carried on through such commerce, is to make it a criminal offence to cause lottery tickets to be carried from one State to another, we know of no authority in the courts to hold that the means thus devised are not appropriate and necessary to protect the country at large against a species of interstate commerce which, although in general use and somewhat favored m both national and state legislation in the early history of the country, has grown into disrepute and has become offensive to the entire people of the Nation. It is a'kind of traffic which no one can be entitled to pursue as of right.

That regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle, transported from one State to another. Such cattle may have, notwithstanding their condition, a value in money for some purposes, and yet it cannot be doubted that Congres, under its power to regulate commerce, may either provide or their being inspected before transportation begins, or, in discretion, may prohibit their being transported from one b to another. Indeed, by the act of May 29, 1884, c. 60, oa gress has provided : “ That no railroad company within United States, or the owners or masters of any steam or sailing or other vessel or boat, shall receive for transportation or tran port, from one State or Territory to another, or from any a into the District of Columbia, or from the District into• State, any live stock affected with any contagious, infec io or communicable disease, and especially the disease known [p. 359] pleuro-pneumonia; nor shall any person, company, or corporation deliver for such transportation to any railroad company, or master or owner of any boat or vessel, any live stock, knowing them to be affected with any contagious, infectious, or communicable disease ; nor shall any person, company, or corporation drive on foot or transport in private conveyance from one State or Territory to another, or from any State into the District of Columbia, or from the District into any State, any live stock, knowing them to be affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro-pneumonia.” Heid v. State of Colorado, 187 U. S. 137, present term.

The act of July 2, 1890, known as the Sherman Anti-Trust Act, and which is based upon the power of Congress to regulate commerce among the States, is an illustration of the proposition that regulation may take the form of prohibition. The object of that act was to protect trade and commerce against unlawful restraints and monopolies. To accomplish that object Congress declared certain contracts to be illegal. That act, in efect, prohibited the doing of certain things, and its prohibitory clauses have been sustained in several cases as valid under the power of Congress to regulate interstate commerce. United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505 ; Addyston Pipe & Steel Company v. United States, 175 U. S. 211. n the case last named the court, referring to the power of Congress to regulate commerce among the States, said : “ In Gibons v. Ogden, supra, the power was declared to be complete in itself, and to acknowledge no limitations other than are pre-sen ed by the Constitution. Under this grant of power to ongress, that body, in our judgment, may enact such legislaion as shall declare void and prohibit the performance of any c°n ract between individuals or corporations where the natural to d‘ lre°t e^ec^ suc^ a conhract will be, when carried out, irectly, and not as a mere incident to other and innocent Jirposes, regulate to any substantial extent interstate comerce. ( And when we speak of interstate we also include in meaning foreign commerce.) We do not assent to the [p. 360] correctness of the proposition that the constitutional guaranty of liberty to the individual to enter into private contracts limits the power of Congress and prevents it from legislating upon the subject of contracts of the class mentioned. The power to regulate interstate commerce is, as stated by Chief Justice Marshall, full and complete in Congress, and there is no limitation in the grant of the power which excludes private contracts of the nature inquestion from the jurisdiction of that body. Nor is any such limitation contained in that other clause of the Constitution which provides that no person shall be deprived of life, liberty or property without due process of law.” Again: “ The provision in the Constitution does not, as we believe, exclude Congress from legislating with regard to contracts of the above nature while in the exercise of its constitutional right to regulate commerce among the States. On the contrary, we think the provision regarding the liberty of the citizen is, to some extent, limited by the commerce clause of the Constitution, and that the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely indirectly, remotely, incidentally and collaterally, regulate to a greater or less degree commerce among the States.”

That regulation may sometimes take the form or have the effect of prohibition is also illustrated in the case of •/# Rohrer, 140 U. S. 545. In Mugler v. Kansas, 123 U. S. 623, it was adjudged that state legislation prohibiting the manu facture of spirituous, malt, vinous, fermented or other in toxicating liquors within the limits of the State, to be there sold or bartered for general use as a beverage, does no necessarily infringe any right, privilege or immunity seen by the Constitution of the United States or by the an^fl ments thereto. Subsequently in Bowman v. Chicago &c. ua wa/y Co., 125 U. S. 465, this court held that ardent spin8, distilled liquors, ale and beer were subjects of exchange, nr and traffic, and were so recognized by the usages of the¡com mercial world, as well as by the laws of Congress and t e cisions of the courts. In Leisy v. Hardin, 135 U. 8. 16, [p. 361] court again held that spirituous liquors were recognized articles of commerce, and declared a statute of Iowa prohibiting the sale within its limits of any intoxicating liquors, except for pharmaceutical, medicinal, chemical or sacramental purposes, under a state license, to be repugnant to the commerce clause of the Constitution, if applied to the sale, within the State, by the importer, in the original, unbroken packages, of such liquors manufactured in and brought from another State. And in determining whether a State could prohibit the sale within its limits, in original, unbroken packages, of ardent spirits, distilled liquors, ale and beer, imported from another State, this court said that they were recognized by the laws of Congress as well as by the commercial world “ as subjects of exchange, barter and traffic,” and that “ whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognized as subjects of commerce are not such.” Leisy v. Hardin, 135 IL S. 100, 110, 125.

s un er its power to regulate interstate commerce, as [p. 362] involved in the transportation, in original packages, of ardent spirits from one State to another, Congress, by the necessary effect of the act of 1890 made it impossible to transport such packages to places within a prohibitory State and there dispose of their contents by sale; although it had been previously held that ardent spirits were recognized articles of commerce and, until Congress otherwise provided, could be imported into a State, and sold in the original packages, despite the will of the State. If at the time of the passage of the act of 1890 all the States had enacted liquor laws prohibiting the sale of intoxicating liquors within their respective limits, then the act would necessarily have had the effect to exclude ardent spirits altogether from commerce among the States ; for no one would ship, for purposes of sale, packages containing such spirits to points within any State that forbade their sale at any time or place, even in unbroken packages, and, in addition, provided for the seizure and forfeiture of such packages. So that we have in the Rahrer case a recognition of the principle that the power of Congress to regulate interstate commerce may sometimes be exerted with the effect of excluding particular articles from such commerce.

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 t e court to declare the full extent of the power that Congress ma) exercise in the regulation of commerce among the States, may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress to regulate co merce among the States, although plenary, cannot be deem arbitrary, since it is subject to such limitations or restrictions [p. 363] are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument. It would not be difficult to imagine legislation that would be justly liable to such an objection as that stated, and be hostile to the objects for the accomplishment of which Congress was invested with the general power to regulate commerce among the several States. But, as often said, the possible abuse of a power is not an argument against its existence. There is probably no governmental power that may not be exerted to the injury of the public. If what is done by Congress is manifestly in excess of the powers granted to it, then upon the courts will rest the duty of adjudging that its action is neither legal nor binding upon the people. But if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden., when he said: “ The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.”