The first question to be resolved arises upon the contention, made by counsel for plaintiffs in error, that upon the due construction of the first section of the act of March 2, 1895, the successive clauses enumerating the several cases in which the offense may be committed all depend upon a condition which is supposed to exist in consequence of the words first occurring, that the paper, certificate, etc., has been brought into the United States from abroad for the purpose of disposing of the same. It is argued that this must be so for the reason, and this is the principal ground of the argument, that by the second section of the act there is an express provision that no former statute against the establishment of lotteries, traffic in lottery tickets, and the circulation thereof or of advertisements relating thereto, should be deemed to be repealed by implication. Without going through with a reference to and an analysis of all such former statutes, it is sufficient to say that none such has been brought to our attention which is inconsistent with the statute in question, unless it be the act of September, 1890, which relates to the carriage of matter concerning lotteries in the mails, and which imposes a different penalty in such cases from that imposed by the act in question. From the fact of such discrepancy, it is contended that congress must have intended that the language of the later act should be construed to refer only to things brought in from abroad to be disposed of in this country, against which there had been no previous legislation imposing any other penalty than a forfeiture. There is some force in this argument, but we do not think it sufficient to overcome the clear indications to the contrary. In the first place, it would render the composition of the first section of the act of 1895 ungrammatical. In the next place, the title to the act indicates an intention to exert the power of congress in all directions authorized by the clauses of the constitution relating to the regulation of commerce and the establishment of a mail service. Besides, the distribution of subjects, by the language used in the latter part of the section, reflects upon the former part a similarmeaning, and the whole section is in apt language to cover the ground indicated by the title of the act, and we see no necessity for extending the condition that the matter is brought in "for the purpose of disposing of the same" to other cases than that of bringing it into the United States from abroad. We have no doubt that the purpose of congress was to lay its hand upon the business at each and every one of the enumerated steps taken for the purposeof carrying it on, and that one of the steps it had in contemplation was the carrying of the instruments employed in the business from one state to another, and that as to this offense no qualification that the act should be done with the purpose of disposing of the thing carried was intended. We may at this point observe that, inasmuch as the section of the act under consideration constitutes three distinct offenses, we do not conceive it to be necessary to determine to what extent the act is inconsistent, in respect to the forbidden use of the mails, with former statutes, or, if there be such inconsistency, what the effect thereof may be; for the case before us does. not involve that offense.

But the question upon which we have the gravest concern, and which is of much importance, arises upon the objection that the act of March 2, 1895, in so far as it relates to the mere carrying of the obnoxious matter from one state into another, though done with knowledge of its character, transcends the constitutional power of congress. The statute was enacted in the exercise of the power to regulate commerce with other countries and between the states, and the power to establish post offices and post roads. That part of the statute on which the present indictment is founded depends upon the authority which may be exercised under the grant to congress of the first of these powers, and the question is whether the business in which these parties were engaged is "commerce" within the meaning of that term in the constitution. The question opens a field upon which some lines have been clearly marked, but with respect to the particular inquiry with which we have to deal we have no distinct guide. Commerce is said by Chief Justice Marshall in the leading case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, to undoubtedly mean "traffic," but to mean more than that, and to signify "intercourse." But both of these latter are general words, and do not precisely define what kind of intercommunication is meant; and we have to follow the course of subsequent adjudication in further elucidation of the scope and meaning of the word. Without going into other lines of inquiry than those which are most nearly relevant to the present subject, we come to the case of Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, where the question was whether an agent of a New York insurance company, who was engaged in effecting insurance for his company in Virginia with residents of the latter state, was subject to certain regulations of that state of the conditions and manner under and in which such business should be done; and it was heldFirst, that it was competent for the state to prescribe the conditions upon which the foreign corporation should be admitted to do business in the state; and, second, that the business of insurance, conducted as that was, was not interstate commerce. It is to be observed, however, that, as pointed out by Mr. Justice Field, the business there in question did not involve intercourse between one party in one state and another party in another state; for the transactions took place wholly in Virginia, and the communications between New York and Virginia were wholly between the constituents of one party,—that is to say, the insurance company and its agent, and the dealing was not between those persons. Said Mr. Justice Field:

"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 while in Virginia would constitute a portion of such commerce."

That case would seem to have sometimes received a wider interpretation than the decision upon the facts would justify, and to have been supposed to justify the proposition that a contract of insurance effected through interstate communication is not interstate com

merce; but no authoritative decision affirming that proposition has been cited or has been found by us.

In the Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550, Mr. Justice Miller, in the course of reasoning from analogies, at page 95, 100 U. S., and page 552, 25 L. Ed., said that:

"In Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, this court held that a policy of insurance made by a corporation of one state on property situated in another was not an article of commerce, and did not come within the clause we are considering. "They are not,' says the court, 'commodities to be shipped or forwarded from one state to another, and then put up for sale.' On the other hand," pursues the learned justice, "in Almy v. California, 24 How. 169, 16 L. Ed. 644, it was held that a stamp duty imposed by the legislature of California on bills of lading for gold and silver transported from any place in that state to another out of the state was forbidden by the constitution of the United States, because, such instruments being a necessity to the transaction of commerce, the duty was a tax upon exports."

With great deference to the learned justice, we cannot think that his statement of what was held in Paul v. Virginia was correct; and, moreover, the ground on which he says that that decision was placed, namely, that policies of insurance are not commodities to be shipped from one state into another and there put up for sale, could not be supported as sufficient, in view of what has been decided in other cases presently to be referred to, and would, as it seems to us, be much narrower than the bounds of the definition given in Gibbons v. Ogden. The case of Paul v. Virginia was again cited in Philadelphia Fire Ass'n v. New York, 119 U. S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342, but only, in that case, in support of the proposition that a state has power to prescribe the conditions on which a foreign corporation may be admitted to do business in the state. The question there was whether a foreign corporation which had entered the state and carried on business therein could question the validity of a law of the state prescribing such conditions. Paul v. Virginia was again referred to in Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297 (at page 653, 155 U. S., page 209, 15 Sup. Ct., and page 300, 39 L. Ed.), which was a case involving the validity of a statute of California making it a misdemeanor for a person in that state to procure insurance for a resident thereof from a foreign corporation which had not filed the bond required by another statute of that state. The court held that the law was a valid exercise of the right of the state to prescribe conditions upon which the foreign corporation should be allowed to do business therein, unless such business of the foreign company was one of a "federal nature," one class of which is interstate commerce. To the contention that marine insurance (which was the business that the respondent was charged with having conducted without filing the bond required) was interstate commerce, and so beyond the reach of state authority, it was replied that:

"This proposition involves an erroneous conception of what constitutes interstate commerce. That the business of insurance does not generically appertain to such commerce has been settled since the case of Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357. See, also, Philadelphia Fire Ass'n v. New York, 119 U. S. 110, 7 Sup. Ct. 108, 30 L. Ed. 342, and authorities there cited."

It is not within our province to question the law as declared by the court in that case, nor have we any disposition to do so; but,

for the purpose of comparing the classes of cases which we deem most relevant to our present duty, we are, no doubt, permitted to say that what we understand the language of the opinion last cited to mean is that the effecting of insurance is not necessarily interstate business, and would not be so where the contract was made in the state and the participants in the transaction were in the state. The case does not decide that if, by the method of doing the business, the party desiring insurance in one state should transmit his application therefor to an insurer in another state, and the insurer should thereupon transmit to the insured his acceptance of the application, this would not constitute interstate commerce. But, if this were so established, we do not think the doctrine would be applicable here, for reasons hereinafter stated. This class of cases is principally relied upon by counsel for plaintiffs in error as declaring the rule that in order to constitute commerce there must be traffic in commodities, and that interstate commerce involves also the transportation of such commodities from one state to another, and that mere business intercourse between parties residing in different states, unaccompanied by the transportation of commodities such as are bought and sold by traffic, is not within the scope of commerce between the states within the meaning of the constitution. But we do not think that, upon a comparison with other decisions of the supreme court, so broad a doctrine was intended to be affirmed in the cases to which we have referred..

Passing to other classes of cases arising upon the exercise of the power in question, it has been frequently held, as was said by Mr. Justice Bradley in Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649, that the power of congress over interstate commerce is coextensive with its power over foreign commerce. Indeed, both are included in an identical grant. Can it be possible to hold that congress has not the power to prohibit the importation from abroad into the United States of instrumentalities for carrying on a business fraught with evil to its inhabitants? Or, to put a precisely relevant question, can it be doubted that congress has the authority to legislate against the importation of lottery tickets into the United States from foreign countries, as it has attempted to do by this act? It would seem that the denial of such power would be an unfortunate and uncalled-for restriction of the grant of authority intended by the constitution. Until recently congress had not seen fit to exercise its power in this direction, and for this reason the instance seems novel; but, in the circumstances, this is no argument against its existence.

In respect to the inquiry as to what constitutes interstate commerce, and particularly to the question whether it is limited to the case of traffic in and the transportation of commodities for the purposes of such traffic, reference may be profitably had to some other cases decided by the supreme court. We have already indicated our view that in Gibbons v. Ogden the subjects which were included in the power granted congress were not thought to be so restricted. In the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158, it was held that the transportation of

passengers, as well as freight, from one state to another by a ferry, was interstate commerce. In the case of Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962, it was held that the company's bridge across the Ohio was an instrumentality of interstate commerce, because it furnished the means of intercourse between the people of two states, and the taking of toll for the passage of persons, as well as of freight, was interstate business. In that case it was remarked by Mr. Justice Brown, in delivering the opinion of the court, referring to the Gloucester Ferry Co. Case:

"If, as was intimated in that case, interstate commerce means simply commerce between the states, it must apply to all commerce which crosses the state line, regardless of the distance from which it comes or to which it is bound. In other words, if it be commerce to send goods from Cincinnati, in Ohio, to Lexington, in Kentucky, it is equally such to send goods or travel in person from Cincinnati to Covington."

And again:

"Commerce was defined in Gibbons v. Ogden, 9 Wheat. 1-189, 6 L. Ed. 23– 189, to be 'intercourse,' and the thousands of people who daily pass and repass over the bridge may as truly be said to be engaged in commerce as if they were shipping cargoes of merchandise from New York to Liverpool."

In that case the "bridge" was a mere instrumentality. It was the use of it for the purpose of intercourse between the people of the two states which impressed upon the structure the character of an instrumentality or agency of such intercourse. Indeed, it is impossible to conceive that an instrument by which business is transacted can have any commercial character otherwise than as is reflected upon it by the business itself. Whether it be a ferry, a bridge, a railroad, or a telegraph line, the agency has no intrinsic quality which brings it within the purview of the commerce clause of the constitution. It acquires that quality from its appropriation to the uses of interstate

commerce.

In Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, it was decided that intercourse by the telegraph between the states is interstate commerce, and that a tax on messages is a tax on the commerce itself; and this doctrine has been reaffirmed in several subsequent cases. So it was held in the Passenger Cases, 7 How. 283, 12 L. Ed. 702, and Henderson v. Mayor, etc., 92 U. S. 259, 23 L. Ed. 543, that the importation of passengers into the United States was commerce with foreign nations, and so within the control of congress; and so it is not doubted that congress may legislate for the exclusion of passengers who, from diseased or other conditions, would be an offense to the welfare of the public. And in Crandall v. Nevada, 6 Wall. 35, 18 L. Ed. 744, the doctrine of the cases last cited was applied to the transportation of passengers by a railroad from one state into another. These cases seem to us altogether inconsistent with the idea that interstate commerce is limited to traffic in commodities or merchandise. In the telegraph cases, for instance, it is nowhere suggested that the messages which would be exempt from state taxation should be such only as relate to traffic. In the passenger cases there is no element of barter of commodities or merchandise of any sort.

46 C.C.A.-3