response to a petition for a rehearing.
Aside from repetitions of arguments made on the original hearing of the case, and which we deem to have been disposed of by the opinion heretofore delivered in these cases, appellees have presented certain criticisms of the opinion, and additional reasons against the reversal, which ought to be noticed.
It is complained that the ordinance being considered is void because it violates section 168 of the Constitution, in this: That it provides less penalties than are fixed by statute for the same offense. It was argued before that the offense created by the ordinance was not an offense at all, either at the common law or by statute. The apparent inconsistency of the arguments will not estop counsel from relying on the true one, if either is sound. It is claimed that pool-selling is a game such as is embraced by section 1960, Kentucky Statutes, 1903, for which a penalty of $500 fine and confinement in the penitentiary, and disqualification from suffrage and office holding, is fixed. That section applies alone to the setting up and operation of a faro bank, keno bank, “or other machine and contrivance used in betting whereby money or other thing may be won or lost,” and to whoever shall for commission or compensation set up, operate, or conduct a game of cards, oontz, or craps, whereby money or other thing may be won or lost, and to aiders and assisters. This argument is based upon the claim that the ordinance is broad enough in terms to include what is known as “French pools,” and that as it was decided by this court in Commonwealth v. Simonds, 79 Ky., 618, 3 R., 380, that the selling of French pools or Paris mutuals on horse'races is a felony, under section I960, Kentucky Statutes, 1903, therefore the ordinance fixes a less *846penalty for selling French pools than the statute does. French pool or Paris mutual is a “machine or contrivance used in betting,” as is shown by its description in Commonwealth v. Simonds, supra. Furthermore, section 1961, Kentucky Statutes, 1903, indicates that it was so regarded 'by the Legislature. For in that section it is said that the change of the name of the games or contrivances “mentioned or included in the preceding section shall not prevent the conviction of any person violating the provisions thereof. . . Nor shall its ■ provisions apply to persons who sell combination or French pools on any regular race track during the races thereon.” In French pool the operator of the machine does not bet at all. He merely conducts a game, which is played by the use of a certain machine, the effect of which is that all who buy pools on a given race bet as among themselves; the wagers of all constituting a pool going to the winner or winners. The operator receives 5 per cent, of the wagers as his commission. But in selling ordinary pools on horse races the seller does not operate a “machine or contrivance used in betting.” Neither does he bet on a horse race. Such was the express decision of this court in Cheek v. Commonwealth, 79 Ky., 359, 2 R., 339. Therefore, as said by the court in that opinion, “there is no express statutory penalty against the specific act of ¡selling pools.” In that opinion the other statute refered to by counsel (what is now section 1960) was referred to, and held not to include pool selling, while French pool was held by the court in the Simonds case, supra, to be under that statute. But, even if the ordinance was 'broad enough to include French pools, it would be void only as to that class of pool selling, leaving it valid in all other particulars, including the penaties affixed to the acts of having tickets in possession, and knowingly furnishing telegraphic *847or telephone messages to the operators, etc., with the intention or knowledge that they are to be used to further the business of pool-selling in the city of Louisville.
Section 1978, Kentucky Statutes, 1903, fixes a penalty of $200 to $500 against “whoever shall suffer any game whatever at wdiich money or property is bet, won or lost, in any house, or on premises in his occupation.” It is claimed that the act of pool-selling, or at least the betting by the buyers of the pools, -is a game. Both these contentions were decided adversely to appellees’ present version in Cheek’s case, supra, where the court said: “Appellant could not be convicted under an indictment for the statutory offense of betting at a game or wager, first, because he did not bet or wager anything; and, second, because betting on a horse race, although punishable und'er a statute against wagering, is not ‘gaming.’ ”
The other criticism of appellees other than the Western Union Telegraph Company’s manager do not appear to us to be material, as affecting their rights under the ordinance.
The very earnest petition for rehearing filed by the Western Union Telegraph Company for its manager, Smith, relies, as new matter, upon the argument that the ordinance must be held void because it is regulation of interstate commerce, and is therefore repugnant to the Federal Constitution. We are not aware that the Congress has ever legislated upon the subject-matter covered by this ordinance. It is conceded that the business of the Western Union Telegraph Company in carrying messages between persons of different States is interstate commerce. While the Supreme Court has frequently had before it the question of the power of a State to enact legislation regulating, or having the effect to regulate commerce between the *848States, it has not decided the precise point here presented. Nor can any general rule be deduced from the numerous decisions of that court that can be said to be conclusive of the question now presented. It is not for a moment thought that the ordinance in question was intended as a regulation of commerce between the States, ór as a regulation of commerce at all. If it operates in that way, it is merely incidentally. The ordinance is an exercise of the State’s police power. That the States may, in the exercise of that power, in certain instances, pass laws that incidentally affect commerce among the States, has been upheld. Plumley v. Massachusetts, 155 U. S., 461, 15 Sup. Ct., 154, 89 L. Ed., 223; Austin v. Tennessee, 179 U. S., 343, 21 Sup. Ct., 132, 45 L. Ed., 224; Western Union Tel. Co. v. James, 162 U. S., 650, 16 Sup. Ct., 934, 40 L. Ed., 1105; Patterson v. Kentucky, 97 U. S., 501, 24 L. Ed., 1115; Stone v. Mississippi, 101 U. S., 814, 25 L. Ed., 1079. It would be an extraordinarily unfortunate condition of it wrere otherwise. We should imagine that a rightful exercise of this power would be found in .State laws prohibiting the importation from another State of diseased or infected cattle or persons, or impure food, and the like. Here the thing prohibited is the transmission to a poolroom operator in the city of Louisville of messages intended for use and to be used1 — in a vicious enterprise. Their use is that of gambling, and is universally held in this country to be immoral, degrading, and injurious to- society. Such use can not have any legitimate purpose. The business of furnishing such messages, known to be intended solely for such use,- makes the carrier essentially a partner in that offense. Its part of the profits of the business is its tolls for carrying the messages. The poolroom operator’s part is a toll or percentage on the volume of business. It must be profitable to both, or it *849would not be kept up. The carrier wants us to say that its part in this unlawful partnership to violate the moral and statute laws of a community is protected by the Federal Constitution. As was said by one of the courts, the Constitution, at most, gives the Congress exclusive jurisdiction to regulate interstate commerce, not interstate crime. The liquor cases are cited by appellees as holding a contrary doctrine to this court’s position. We do not understand that they do. Traffic in liquor is not illegal or immoral per se. On the contrary, it is generally recognized as being a legal business, and is licensed as such. Consequently the transmission of such commodities by freight from one State to another has been held to be a matter not subject to the prohibitive control of any of the States. But wagering bets on horse races can not be an article of commerce, no more than could be a lottery business. Both are per se immoral and deleterious to society, and clearly within the power of the States to prohibit. It could never have been contemplated bjT the framers of the Federal Constitution that the hands of the States were to be tied so that they could not protect themselves from such vices if one of the participants chanced to use an interstate vehicle of commerce for carrying on the business.
The petitions are overruled.