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broad sense and is not limited to tangible objects. For example in Portland Bank v. Apthorp, 12 Mass. 252, speaking of the bank ing business, the Court defines the word as "convenience, privilege, profit and gains, as well as goods and wares, which are only its vulgar signification. " Also, in Minot v. Winthrop, 162 Mass. 113, the privilege of receiving or transmitting by will or descent property on the death of the owner is a commodity within the meaning of that word in the Massachusetts Constitution providing for a tax on commodities. In the same way the word ' ' trade " in a statute forbidding combinations in restraint of trade has been held to include insurance. In re Pinckney, 47 Kan. 89. In a later case, however, (State v. Phipps, 50 Kan. 60), while still holding that "trade" includes the business of insurance, the Court said: "The word 'trade' as used in that decision meant then, and means now, trade between citizens of this state — domestic trade, if you please — and not trade or commerce between citizens of different states, or interstate commerce. " In the last case it was argued that in Paul v. Virginia the court failed to notice the distinction between an executed and an executory contract. The policy of insurance is an executed contract. A man from New York goes into Virginia and sells something (indemnity, in the case of fire insurance) to be delivered in the future from the home office in New York upon the hap pening of a certain event, and the party in Virginia promises to send money to New York. That is, the man in Virginia pur chased from the insurance company in New York a "convenience, privilege, profit, gain" — a commodity. In Queen Insurance Co. v. the State, 86 Tex. 250 (1893) the Court said: "The word 'commodity' has two significations. In its most comprehensive sense it means 'con venience, accommodation, profit, benefit, advantage, interest or commodiousness ' . . . The word is ordinarily used in the com mercial sense of any movable and tangible
thing that is ordinarily produced or used as the subject-matter of barter or sale; and we think that this was the meaning intended to be given to it by the Legis lature in the statute in question." It was held, therefore, that a contract of insurance could not be considered a commodity and the statutes forbidding combinations to fix the price of commodities had no application. In this case and the two preceding, the court is dealing only with the particular statute and does not decide that the Legis lature could not so frame a statute as to give to the word commodity its broad meaning. If the power to regulate com merce includes, as it would seem from the Lottery Case (188 U. S. 321) it does, the power to prohibit commerce or to declare what are suitable subjects of commerce, it might be argued that Congress could enact that the word commodity should have the broad signification and should include insur ance, and such enactment would not be so unreasonable as to justify the court in dis regarding it. It is doubtful, however, whether a transaction which is not commer cial in its nature can be made so merely by legislative declaration. It is apparent that if the word should come to have such a broad meaning it would bring within the control of the Federal government practically all contracts of different states. Such tre mendous consequences afford very strong reason for saying that the word will never receive such a meaning, either by legisla tive action or judicial interpretation. It has also been contended, on the strength of the Lottery Case that, that although insur ance is not commerce, the policy itself which evidences the contract might be declared to be an article of commerce, but the statement of the bare majority in that case as to the nature of a lottery ticket and why it is to be regarded as a vendible article does not afford much strength to the contention. The majority said lottery tickets "were the subjects of traffic; they could have been sold; and the holder was assured that the
