New-York tribune., 1903-02-24
MAY SUPPRESS TRAFFIC.
LOTTERY CASE DECIDED.
Pozcer of Congress OUe,' Commerce
4frmed by the Supreme Cont

one State to another by other than the
United States mails passed today by
the United States Supreme Court. The ques-
ton arose in connection with two cases that
of Champion against the United states and that
of Francis against the United States-and in
both cases the constitutionality of the act Of
Congress Of 1895 prohibiting the transmission
of lottery tickets from one State to another by
express or otherwise was challenged The opin-
ion in the Champion case was delivered by Jus
tice Harlan and sustained the validity OF the
law. In the Francis case Justice Holmes spoke
for the court, holding that the offence alleged
did not come within the scope Of the law in
question.
The cases have been on the docket OF the Su-
preme Court for a long time. and evidently pre-
sented many knotty problems. The two nave
been argued twice together. and the Champion
case was argued once alone before the Francis
case reached the court Both We're crirnlna4
cases
Champion at the time of his arrest was in
Chicago representing what known as the
Pan-American Lottery of Paraguay The par
ticuIar charge against him that Of deliver
ing a box of lottery tickets to the Wells Fargo
Express Company in Texas for shipment TO
California. He was arrested in Chicago to be
taken to Texas. and Immediately applied for a
writ of habeas corpus. which the Federal CIR
cult Court sitting in Chicago refused TO grant,
He appealed from that adverse decision TO the
Supreme Court and IL is this appeal which was
decided to-day the decision being adverse to
him.
Francis operated in Cincinnati, and was
charged with conducting "a policy shop" The
numbers were selected by players in New
port just across the Ohio River in Kentucky,
and brought to the main Office in Cincinnati Dy
ferry or over bridge by carriers This. 1T was
charged. was violation OF the statute of 1873.
and Francis was arrested and found guilty.
His sentence was affirmed by the Circuit Court
of Appeals for the With Circuit and the case
then removed TO the Supreme Court The effect
of Justice Holiness decision reversing the lower
courts Is to send the case back for a trial.
The principal contention of counsel for the lot
terry men was that the suppression Of lotteries
belongs exclusively to the police power of the
several States. and is not federal function,
and that consequently, the law Of 1893 is IN
derogation of the Tenth Amendment to the con-
stitutiOn which provides that the powers not
delegated to the United States by the constitu-
tion nor prohibited by it to the States are re-
served to the States respectively or to the peo-
Pile They also contended that the sending OF
| lottery tickets or policy slips from State
/ to another does not constitute act of inter-
/ state commerce
The cases were first argued IN February 1901.
/ ard by reason of divided court on the Cham
/ pion case. hey were again argued in October.
1901 Justice Gfray's death made third argu-
! nent necessary which took place on December
/ II. 1902. The lottery and express companies
/ were represented by ex-senator George F. Ed-
mTnds, ex-SecTetary John G. Carlisle. James g
| Carter and William ID. Guthrie. OF the Ne"-foT
| bar Assistant Attorney General James NJ
Beck represented the government justice
Holmes. who succeeded Justice Gray, voted 10
sustain the law in the Champion case
Justice Haran's opinion in the Champion case
proceeded entirely on the theory that the trans
Sfslfa
other is a form of interstate commerce because
they subject of traffic and have money
| value. and hence that the law was a regulation
| of interstate commerce.
JUSTICE HARI.AN's OPINION
| Replying 10 the contention that the statute
in this case prohibits rather than regulates
! commerce. and that such was not the intention
of the constitution, Justice Harlan said:
Are We prepared 70 say that a provision
which is. in effect. prohibition of the carriage
/ of such articles from state to State IS not a
/ tit or appropriate mode for the regulation OF
that particular kind of commerce? If the sup
I preston of lottery traffic. carried on through
: Interstate commerce. is a matter of which Con-
| sress may take COgnizanCe and over which its
+ power NAV be eXeTted. can it be possible that
II is baJniess 70 SUPPRESS such traffic as car
! ried on through interstate commerce. Must it
tolerate the traffic and simply regulate the
/ manner IN which it may be carried on OF
/ NAV NOT Congress. for the protection of the
people of all the states. and under the power
! 10 regulate interstate commerce, devise such
prohibited by il. as viii drive the trafhc
+ out oE commerce among the States2
If Il State. when considering legislation for
the suppression of Iotter within its own limits
may properly take into view the evils that in
here i'm the raising of money in that mode. why
may not Congress invested with the power 10
! regulate all commerce among the several States.
/ provide that such commerce shall not be pollutef
by the carrying of lottery tickets from one state
/ to another?
Referring to the fact that the law makes tho
offence criminal. he said:
/ Surely il will not be said to he part Of any
/ one.s liberty as recognized by the supreme law
! into commerce among the States the element
I that will be confessedly injurious To the public
/ morals
! Summing up Justice Harlan said;
/ We decide nothing more in the present case
than that lottery tickets are subjects OF t,dlIc
/ among those who choose to sell or buy lAeul;
/ that the carriage of such tickets by independehI
/ carriers from state to another Is, theIelpie'
| interstate cOmmerC. that under its power 10
( raS,,,Iate commerce among the several states
/ Consress-subiect to the limitations imposed by
I the constitution uDOn the exercise OF the powers
I granted-has plenary authority over such COM
. meIce. and prohibit the carriaSe OF $50 80.
tickets from state 70 state. and that leglsittio"
I 10 that end and of that character, IS not IN
/ consistent with any limitation or RESTRICTION m
! nosed unon th, exercise of the powers granted
! to Congress
FOIHG JUSTICES DISSENT
Those who ioined with Justice Harlas in sus-
.ai,irg the law were Justices Brown. White.
NcKenna and Holmes. Chief Justice Fuller and
/ I,,stices Brewer, Shfras and Peckham united IN
a dissenting opinion delivered by the Chief JUS
tice The Chief Justice said that the naked
question Involved in the case is whether the
| rrobibitiou by Congress OF the carriage of lot
/ tarv tickets from one State to another by means
I other than the mai.s is within the power vested