which this question is raised. It is said: "They are not subjects of trade and barter as something having an existence and value in dependent of the parties to them." In other words, intrinsic value would seem to be the •criterion. Why is not this language applicable as well to a lottery ticket? Is a lottery ticket subject to trade and barter as something having •an existence and value independent of the parties to it? The value of an in surance policy is . independent of the paper itself and rests upon the as surance of the company issuing it that it stands ready with its capital to pay to the holder a certain sum of money upon the happening of a certain contingency. In what •else does the value of a lottery ticket consist? It contains, as does the insurance policy, a promise to pay upon the happening of a con tingency, that contingency being the coinci dence of the number of the ticket with a number to be drawn from a wheel at a future day. Value is imparted to the ticket by the capital of the company operating the lottery. The contingency is as likely to happen (at least theoretically) in the one case as in the other, and so long as that possibility con tinues, so long do the policy and the lottery ticket have the value imparted to them by the parties issuing them. When, by the terms of the contracts, the obligation to pay is terminated, the paper evidences of the contracts are simply paper, of no value what ever. . . . There seems no escaping the conclusion that the distinction between lottery tickets and insurance policies is one based upon con siderations of public policy. In this the Su preme Court has, not avowedly, it is true, "but nevertheless as effectually, departed from a rule of construction laid down in the very beginning, and always, until now, followed, î'/r., that in determining the validity of an attempted exercise of power, the question cannot be affected by considerations of ex pediency. It is a startling departure from a long-established canon of construction, and one that of itself should excite com ment.
Secondly. Can the word "regulate have been intended by the framers of the Consti tution to comprehend absolute prohibition? In no case decided by. the Supreme Court, and in none of the debates of the constitu tional convention, do we find a hint of any other object than to facilitate intercourse by securing harmony.
- Would the prohibition of intercourse facili
tate intercourse? The question is too ab surd to be asked seriously. . . . Thirdly. Does not the act prohibiting the transportation of lottery tickets trench upon the powers reserved to the States? The Supreme Court has ever recognized the regulation of lotteries as peculiarly with in the police power of the States, and how ever much we would welcome any legislation that would effectually wipe out the "wide spread pestilence of lotteries," yet if the power to enact such legislation does not ex ist under the commerce clause, or some other clause of the Constitution, let us not attempt to stretch the Constitution to give that power to Congress. The commerce clause empowers Congress to regulate commerce, not the public morals. IN an article dealing with "The Physician as an Expert. in the Michigan Law Rez'tctv for April. Professor H. B. Hutchins well de scribes what should be the attitude of any ex pert witness. He says: The functions of the expert are in a sense judicial and should be so regarded by him. He is called into the case, in theory at least, not as a partisan or advocate, but to aid the jury by his opinions in reaching correct re sults. The fact that the jury are not bound to be governed by what he says, in no way relieves him of responsibility or changes his relation to the controversy. Although a wit ness whose testimony is to be considered by the jury h'ke that of any other witness, he should always maintain the judicial attitude. The frequent failure of the expert to do this is undoubtedly the cause of much of the un favorable comment from the bench in regard to this class of testimony, and has served per haps more than anything else to bring the
