public evil involved in its accomplishment. But, assuming that the application of the power is for a lawful purpose and with lawful tendencies, its merely possible results are not controlling. But the distinction between "tendency" or "intent," and mere "unintended possibility," must ever be kept in mind if error is to be avoided. And it is to be feared that it is not always.
A very satisfactory way of stating and explaining this is that of Chief Justice Marshall, in Gibbons vs. Ogden,[1] as is so ably pointed out by Mr. Justice Moody in the Employers' Liability cases.[2]
Where there are two powers, one in the State, another in the nation, one in individuals, or another in the nation, the exercise of the one power is not to be destroyed by the mere existence of the other, where that exercise is bona fide, with no intent or purpose of invading, or manifest, or natural tendency to invade it. In such cases there must be temptation added to power to constitute tendency, or that intent that is, of course, its equivalent, or most intensified form.
It is worth while to repeat that: "Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, for instance, the monopoly" (or, of course, that which tends to it), "but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. But when that intent and the consequent dangerous probability exist, this statute, like many
- ↑ 9 Wheat. 204 (1824).
- ↑ 207 U. S. 535 (1908).
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