as to the federal right to exclude lottery tickets from interstate transportation which, whatever might be the morality or expediency of the lottery to which they related, could not, in themselves, be considered a commodity, the transportation of which was attended with danger of injury to interstate trade, the point was urged that Congress was putting the Commerce Clause to a use which its framers had not intended. That, in other words the term "regulation" as employed in that clause could not properly be so defined as to include measures intended, and by necessary effect, calculated not to protect or encourage or regulate interstate commerce itself, but to check an evil the control of which by direct legislation was admittedly beyond the authority of Congress.

To this argument, the Supreme Court in Champion v. Ames, replied that lotteries, though in earlier years considered innocuous, had come to be generally viewed as pestilential and as such had come under the ban of the law of most, if not all, of the States.. Therefore, it was argued, the traffic in lottery tickets is one "which no one can be entitled to pursue as of right." "If," the court say, "a State, when considering legislation for the suppression of lotteries within its own limits may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?" "We should hesitate long," the court go on to declare, "before adjudging that an evil of such appalling character, carried on through interstate commerce cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy by legis lation the whole field of interstate commerce."

It is to be admitted that the argument thus advanced is not only a weak one, but leads to a doctrine which, if not necessarily, at least possibly, may be employed to enable the Federal Govern

7Cf. American Law Review, XXXVIII, 199; Political Science Quarterly, XII, 622; Michigan Law Review, I, 620.

ment to bring under its regulative control most of the manufacturing and other industries of the country. In so far as the argument is ex necessitate, or ab inconvenienti, it is plainly invalid. As the four dissenting justices in their opinion say, "the scope of the Commerce Clause of the Constitution cannot be enlarged because of present views of public interest." The argument of the majority is indeed scarcely distinguishable from what has been denominated the Wilson-Roosevelt doctrine of constitutional construction. And it is certainly improper to speak of lottery tickets as "polluting" interstate commerce. Their carriage cannot in any way be said to exercise an injurious effect upon other articles or persons transported.

8

As regards the argument that, if it be granted that the Federal Government has the power to prohibit the interstate transportation of lottery tickets, it will logically follow that Congress may arbitrarily exclude from interstate commerce any article or commodity it may see fit, and from whatever motive, the majority justices say: "It will be time enough to consider the constitutionality of such legislation when we must do so."

These justices go on to point out that the power of Congress to regulate commerce among the States though plenary is not arbitrary. They, however, add that the possible abuse of a power is not an argument against its existence.

§ 348. Federal Regulation of Child Labor.

The possible application of the doctrine laid down in the Lottery Case is excellently exemplified in an attempt that has been made, relying upon it, to support the constitutionality of a federal law excluding from interstate commerce articles to the production of which child labor has contributed. The enactment of a bill to the effect has been especially championed in the United States Senate by Mr. Beveridge of Indiana.

This proposed law provides that, under heavy penalties, "no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine in which children

8 See ante, Section 27.

under fourteen years of age are employed or permitted to work, which products are offered to said interstate carriers by the firm, person, or corporation operating said factory or mine, or any officer or agent, or servant, thereof for transportation into any other State or Territory than the one in which said factory or mine is located."

There has been no concealment, and, indeed, the bill bears sufficient evidence upon its face, of the fact that the purpose of the law is rather a regulation of the manner in which certain goods are manufactured or produced, than of their transportation. across state lines. The bill is thus a police measure in exactly the same sense that the Pure Food and Lottery Acts are. But there is a difference between it and them-a difference which possibly will be held controlling. Lottery tickets are, in themselves, the contracts of an undertaking which is very generally regarded as a morally and economically harmful one, and impure foods are, in themselves, harmful to those receiving and consuming them. After the process of manufacture is completed, harm is, therefore, done by the transportation and use of impure foods and lottery tickets, and it is, therefore, arguable that a law prohibiting or regulating their transportation as articles of interstate commerce is a legitimate exercise of the power granted to the General Government to regulate commerce among the States; that is, is an exercise of that power for the advantage of the citizens of the several States.

As to articles manufactured or produced in factories or mines employing children under fourteen years of age, however, the foregoing does not hold true. Whatever injury is done by the employment of children in factories or mines is done when the articles are in process of manufacture or production, and over this manufacturing or mining the Federal Government has, under the Commerce Clause, no control whatever. Except possibly in the rarest instances, goods produced in factories or mines employing children do not differ in character from those produced in factories or mines not employing such labor. Once produced there. is, therefore, no harm done to anyone, whether by way of deceit

or injury to the health, by the sale and consumption of these goods so produced. There cannot, therefore, be any valid argument as to the constitutionality of the proposed Child Labor Law upon the ground that it is a legitimate exercise of a federal power to regulate interstate commerce, unless, indeed, one is willing to take the further step of saying that Congress has the arbitrary power to exclude from interstate commerce any commodity that it chooses independently of whether its transmission or transportation is attended by danger, or its sale by unavoidable opportunity for fraud, or its use and consumption followed by moral or physical evils. Or, if admitted to interstate commerce, that Congress may attach, as conditions precedent thereto, any requirements of production that it may see fit to impose. To grant this last is, of course, to break down entirely the distinction between the manufacture of and the interstate trade in commodities, and thus to bring within possible federal control the entire manufacturing interests of the country.

It is plain, from what has been said, that the enactment of a measure of the character of the Child Labor Bill introduced in the Senate by Mr. Beveridge would be an attempt upon the part of the Federal Government to regulate a matter reserved to the control of the States. Should the measure be limited in its operations to goods imported from foreign countries it would not, to be sure, be open to this objection, but it would still be open to the criticism that it would not be, in any sense, a regulation of commerce, and therefore, if valid, the constitutional source of the power of Congress to enact it would have to be sought elsewhere than in the Commerce Clause.

The cases in which it has been held that the Federal Government has a full discretionary power to exclude articles from the mails cannot be used to support, by analogy, a similar power over interstate commerce. For, by the Constitution, Congress is given the exclusive power to establish post-offices or post-roads. The maintenance of a postal service is thus a subject over which the States have no authority. Interstate commerce is, however, a matter which is not established by the Federal Government. Its

regulation, and not its creation, by the Federal Government, is provided for by the Constitution. The distinction between the powers of the United States with reference to interstate commerce and those arising out of its power to establish post-offices and postroads is recognized in the leading case of In re Jackson in which the court say: "We do not think that Congress possesses the power to prevent the transportation in other ways as merchandise of matter which it excludes from the mails. To give efficiency to its regulations and to prevent rival postal systems, it may perhaps prohibit the carriage by others for hire, over postal routes of articles which legitimately constitute mail matter in the sense in which those laws were used when the Constitution was adopted -consisting of letters and newspapers and pamphlets when not sent as merchandise- but further than this, its powers of prohibition cannot extend."

§ 349. The Federal Employers' Liability Law of 1906.

In 1906 Congress passed an act entitled "An Act Relating to Liability of Common Carriers in the District of Columbia and Territories and Common Carriers Engaged in Commerce between the States and between the States and Foreign Nations to their Employees," 10 by which act the fellow-servant doctrine of the common law was considerably modified. By the terms of this act every common carrier in trade or commerce" in the District of Columbia or in the Territories or between the several States was made liable for the death or injury of "any of its employees which should result from the negligence of "any of its officers, agents, or employees." It thus appears that the provisions of the acts were made applicable to these companies irrespective of the fact whether the person injured or killed was engaged at the time in interstate commerce. The only criterion prescribed was that the employing company was one carrying on commerce among the States. There was thus raised the fundamental question whether the simple fact that a company or corporation is, in any

996 U. S. 727; 24 L. ed. 877.

10 34 Stat. at L. 232.