FULLER, C. J., BREWER, SHIRAS and PECKHAM, JJ., dissenting. merce 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 Virginia. 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 Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce." 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 FULLER, C. J., BREWER, SHIRAS and PECKHAM, JJ., dissenting. other 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 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 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 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 VOL. CLXXXVIII-24 FULLER, C. J., BREWER, SHIRAS and PECKHAM, JJ., dissenting. 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 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 FULLER, C. J., BREWER, SHIRAS and PECKHAM, JJ., dissenting. 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 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 mar throughout the worid;" but under the Articles of Confedera tion the States might have interdicted interstate trade, yet FULLER, C. J., BREWER, SHIRAS and PECKHAM, JJ.. dissenting. 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 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.” |