Page:The Green Bag (1889–1914), Volume 18.pdf/104

DEPARTMENTS OF GOVERNMENT contract for the purchase and sale of goods activity in any way connected with trade in Virginia by a citizen of New York whilst between the States; and would exclude in Virginia would constitute a portion of State control over many contracts purely domestic in their nature." (Hooper v. such commerce." This case has been followed without dis California, 155 U. S., 655.) sent or criticism ' by the Supreme Court of These well-considered cases must be the United States at least four times, where expressly overruled if this power is sus the question was specifically raised, and as tained. The case of Champion v. Ames late as 1901, and in thirteen State cases, so (188 U. S., 321) may be thought to indicate that it may justly be said to be firmly that the Court is moving in that direction, imbedded in our jurisprudence, State and but it does not infringe upon the authority Federal It has been well said that "twen of the insurance cases. The Court in that ty-three of the greatest justices that ever case sustained a statute that made it a occupied the Bench of the Supreme Court penal offense to transport a lottery ticket of the United States have passed upon this "from one State to another." The statute proposition in six cases, and there has not did not proceed upon the theory that the been in any one of the six a murmur of dis lottery business, though carried on between approval. In Hooper v. California (155 U. the States, was interstate commerce, but S., 48) it was applied to marine, and in New operated only on the ticket while it was in York Life Insurance Company v. Craven the act of being carried from one State to (178 U. S., 389) it was applied to life insur another. ance. In Hooper v. California the question The Court held that the lottery ticket was was squarely raised again, and it was con a thing of value. That they were the "sub ceded that if marine insurance _ between the ject of traffic, they could have been sold, and States was interstate commerce, the statute the holder was assured that the com being considered was void. The Court pany would pay to him the amount of the sustained the statute, saying that the prize drawn. " The counsel on both sides opposite contention was based upon "a cited and argued the insurance cases, and fundamental misconception of the nature of they were discussed by Mr. Chief Justice the constitutional provision relied on." Fuller in his able dissenting opinion, though They held that an insurance contract was a he did not go so far as to intimate that they "mere incident of commercial intercourse," were necessarily inconsistent with the hold and used this significant language: "It ing of the Court. The opinion does not ignores the real distinction upon which the even refer to them, and it is obvious that the general rule and its exceptions are based, Court did not find it necessary to dis and which consists in the difference between tinguish between them and case at bar, interstate commerce or an instrumentality much less to question them. It may be thereof on the one side and the mere incidents that they approved of the reasoning of which may attend the carrying on of such Assistent Attorney-General James M. Beck, commerce on the other. This distinction who insisted in his brief that "whatever be has always been carefully observed, and is the true doctrine of these cases (insurance) clearly defined by the authorities cited. it is enough to say that the lottery traffic is If the power to regulate interstate com not analogous to insurance, as has been merce applied to all the incidents to which already shown," and "an insurance policy said commerce might give rise and to all is not a commodity. It is not a thing contracts which might be made in the which is customarily bought and sold, and course of its transaction, that power would recognized as a subject of such exchange." embrace the entire sphere of mercantile They evidently concurred with this asser