New-York tribune., 1903-02-25
TRUsTS AND THE LOTTERY DECISION

TRUSTS AND THE LOTTERY DECISION.
The lottery case decision is another milestone
which marks the progress Of law in the devel-
opment of nationality. It is one more proof OF
the capacity of the United States Government
to protect the general interest in the face of
new and unforeseen emergencies. The provision
of the constitution giving Congress power to
regulate interstate commerce meant little until
within comparatively recent times. The fran
ers of the constitution intended to prevent New
York from levying duties Connecticut fire
wood. but they had no notion of the great net
work OF railways whose business was to be
subject to federal control. Yet the interstate
commerce clause has proved to be one of the
sleeping giants of the constitution, and, &C
cording 10 the present decision, the general gov
ernment has practically complete control of all
business and all commodities which cross State
lines. The case itself involves merely the
right of Congress to stop the transportation Of
lottery tickets by express as well as by mail.
Its Importance is not in what is definitely de-
cided, but in what is implied with reference TO
antitrust regulation in the general rules laid
down for arriving at the decision. The finding
is made as in so many other important cases,
by a bare majority, but the division is not on
partisan lines. one of the three Democrats be-
ing with the Matchmaking majority, while two
of the six Republicans are with the decentraliz-
ing minority.
The significance of the decision is indicated
in the critical Characterization of it by Chief
Justice Fuller in his dissenting opinion, when
he says that 1.-The lottery act cannot be brought
within the power to regulate commerce among
1.-The several States unless lottery tickets are ar
"tices of commerce, and therefore, when car
''ried across State lines of interstate commerce,
'or unless the power 10 regulate interstate com
'-merce includes the absolute and exclusive
power to prohibit the transportation of any
thing or anybody from one State TO another"
Some allowance is to be made for a possible
overstatement in an opinion intended to set
forth the objections to the decision. The ma
jority opinion is more guarded in its deciara-
tions. Justice Harlan disclaims the idea that
Congress may arbitrarily exclude from COM
.'merce among the States any article, commod-
"ity. or thing of whatever kind or nature how
lever useful or valuable, which it may choose"
but he does affirm the power of Congress to
regulate even 10 absolute exclusion any article
of commerce from interstate transit which is
Injurious TO public morals" He asks: MAY
mot Congress, for the protection of the people
"of all the States, and under the power to regu-
Late interstate commerce, devise such means,
within the scope of the constitution and not
prohibited by it, as will drive the traffic out of
commerce among the States?" And he
squarely decides:
That under its power to regulate commerce
among the several States Congress-subject to
the limitations imposed by the constitution upon
the exercise Of the powers granteG-has plenary
authority over such commerce. and may pro-
hibit the carriage of such tickets from State TO
State; that legislation TO that end. and of that
character, is not inconsistent with any limita-
tion restriction imposed upon the exercise of
the powers granted to Congress.
Thus, while Congress may not arbitrarily ex-
clude useful articles from interstate commerce.
it may absolutely exclude things injurious TO
public morals like lottery tickets; and the impli
cation is that IL may exclude articles whose
transit is injurious to public welfare, such as
the productions Of a monopoly 1t already ex-
cludes from interstate commerce with prohibi-
ton States liquor lawfully manufactured in
other States. If the business of a lottery or q
distillery which exists under the protection of
State law can be held up at State line by the
general government, the business Of a monopoly
which lis beyond the pale of common law might
be stopped at the State line, even though the
opera tions of that monopoly might be under the