THE GREEN BAG Marshall in his opinion in the case of Brown v. Maryland, 1827. But whether in theory the Federal Gov ernment possesses any police power, the fact is that it exercises police powers. The exclusion of lottery tickets from interstate commerce by prohibiting interstate carriers from carrying them, cannot be considered a regulation for the purpose of securing the safety of commerce, but is clearly for the purpose of protecting the public morals. As was said by the court: "What clause of the Constitution can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals? " (Champion v. Ames, 188 U. S. 357.) But legislation by the Government for the purpose of protecting the public morals is unquestionably an exercise of the police power. The recent Pure Food Bill passed by Congress is in the interest of public health and not for the purpose of rendering com merce less dangerous. Though it may theoretically serve the latter purpose, its real purpose is well understood to be the former, and a law must be judged by its real purpose, not by its remote or incidental effects. This principle has been recog nized by the Supreme Court in Minnesota v. Barber, 136 U. S. 313; New York v. Miles, 11 Peters, 103, Passenger Cases, 7 Howard, 283; Yick Wo v. Hopkins, 118 U. S. 356. That governmental action for the protection of the public health is an exercise of the police power is too clear to admit of doubt. The Employers' Liability Act which is a regulation for promoting public safety is also an exercise of the police power by the Federal Government. Like the Pure Food Law, its constitutionality has not yet been passed upon by the Supreme Court, but
until then the presumption is in favor of their constitutionality. As to the fact of the exercise of police power by the Federal Government we find the following in Freund's very able work on the Police Power: "It is impossible to deny that the Federal Government exercises a considerable police power of its own. This police power rests chiefly upon the con stitutional power to regulate commerce among the states and with foreign nations, but not exclusively so. It must now be regarded as firmly established that the power over commerce, while primarily intended to be exercised in behalf of economic interests, may be used for the protection of safety, order, and morals." (Police Power, P- 63-) Relative to the right of the General Government to exercise police powers, Judge Cooley says in his " Constitutional Limita tions," p. 723: "Congress may establish police regulations, as well as the states, con fining their operation to the subjects over which it is given control by the Consti tution." In view of the position taken by the Supreme Court in the Lottery Case, it would not be surprising if it would sustain as constitutional a regulation by the General Government for the purpose of protecting the public health and promoting the public intelligence. This exact question has not yet been presented to that court for decision, so that it is impossible to say at present what its decision would be. Considered in connection with other questions closely allied to it, the question presented by this proposed legislation becomes one of intense interest, whether we consider it from the standpoint of its legality or of its expedi ency. Lincoln, Nebraska, April, 1907.
