selection as to what shall be carried in the mails, and which therefore is not in any wise subject to judicial control even though in a given case it may be manifest that a particular exclusion is but arbitrary because resting on no discernible distinction nor coming within any discoverable principle of justice or public policy."

The court, however, refuses to accept this view, saying that "because there has developed no necessity of passing on the question, we do not wish even by the remotest implication to be regarded as assenting to the broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition, embodied in the proposition of the government which we have previously stated."3

Nevertheless the case will furnish an excellent text upon which to base a discussion of the extent to which, under the guise of regulating the mails, Federal control can be carried, — a question which has not yet received adequate consideration but which must soon be answered. For, even taking into consideration the close reasoning by which the court justifies the law on the ground that it only "affixes additional conditions for admission to a privileged class of mail," the statute is in reality a regulation of journalism, and by it the federal government accomplishes something indirectly which it could not do directly. And this raises the question of the conclusiveness of the court's attitude, expressed in one case, at least, that the judiciary will not intervene to restrain "the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." 4

It is my purpose, therefore, in the present paper, to discuss the limits to which "nullification by indirection" 5 may be extended through federal regulation of the mails.

I. FEDERAL POWER OVER THE MAILS: A REVIEW.

The constitutional grant of the postal power is clothed in words which "poorly express its object" and feebly indicate the particular measures which may be adopted to carry out its design. "To

3 Lewis Publishing Co. v. Morgan, supra.

McCray v. United States, 195 U. S. 27 (1904).

The phrase is that of Mr. James M. Beck, who in the newspaper case was counsel for the Lewis Publishing Company.

establish Post Offices and post Roads" is the form of the grant; to create and regulate the entire postal system of the government is the evident intent."

Under the authority given in the six words of this clause the government has classified mailable matter, its senders and recipients. Congress has exercised its power (held in all instances to be valid) of excluding articles such as lottery tickets and advertisements, poisons, obscene literature, animals, liquors, etc.; it has put special conditions on the introduction of other articles, and the violation of any of these regulations is dealt with criminally.7 Finally, persons using the mails with intent to defraud are dealt with by federal authorities.

Such an enormous extension of the postal power, concerning the necessity for which there has been little difference of opinion in Congress, has, of course, been combated in the courts. In his message sent to Congress on the 2d of December, 1835,8 President Jackson urged the passage of a law prohibiting, "under severe penalties, the circulation in the southern states, through the mail, of incendiary publications intended to instigate the slaves to insurrection." The message was referred to a committee of which Mr. Calhoun was chairman, and while great differences of opinion resulted, the courts were not called upon to render a decision, for the

6 Pomeroy, Constitutional Law, 264. Or, as described by Marshall, "this power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post road, and from one post office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post office or rob the mail." McCulloch v. Maryland, 4 Wheat. 316 (1819).

7 For the extensive Index Expurgatorius which has been built up, see "Postal Laws and Regulations" (1902), 59th Cong. 2d Sess. Sen. Doc. No. 394, Pt. I, p. 321, “Unmailable Matter." It may in this connection be mentioned that the Post Office does an annual business of over five hundred millions of dollars. The second-class mail matter, carried at the rate of one cent a pound, involves an annual loss of seventy millions of dollars. Federal banking activities through the Postal Savings Law and money-order exchanges are outside the purview of this paper. For a discussion of the post office as a common carrier and bank, see 18 American Law Review, 281, and for an argument that Congress, under the postal grant, has the power to acquire and operate the railroads, see Edgar H. Farrar's brief in "Hearings before Committee on Interstate Commerce, United States Senate, 62d Congress," p. 1498. The Supreme Court, moreover, has partially relied on the postal clause to justify the acts of Congress incorporating certain railroad companies. See California v. Pacific Railroad Companies, 127 U. S. 1 (1887).

8 II Statesman's Manual, 1018.

Senate concluded that Congress did not have such a power of exclusion and defeated the proposed law."

The issue was not squarely raised until 1878, when the Supreme Court upheld an act of Congress 10 making it a crime for anyone knowingly to send through the mails any letter or circular concerning lotteries. The court said: "1

“The validity of legislation prescribing what should be carried, and its weight and form and the charges to which it should be subjected, has never been questioned. . . . The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded."

12

Twelve years later, in sustaining the anti-lottery act of 1890 the court reaffirmed this ruling and held "that the power vested in Congress to establish post-offices and post-roads embraced the regulation of the entire postal system of the country, and that under it Congress may designate what may be carried in the mails and what excluded; that in excluding the various articles from the mails the object of Congress is . . . to refuse facilities for the distribution of matter deemed injurious by Congress to the public morals." "' 13

Still greater power was recognized with reference to the so-called "fraud orders," the court holding that Congress "may refuse to include in its mails such printed matter or merchandise as may seem objectionable to it upon the ground of public policy, as dangerous to its employees or injurious to other mail matter. . . . While it may be assumed, for the purpose of this case, that Congress would have no right to extend to one the benefit of its postal service, and deny it to another person in the same class and standing in the same relation to the government, it does not follow that under its power to classify mailable matter, applying different rates of post

9 XII Debates of Congress, 704, 754, 771; V Calhoun's Works, 191. 10 Revised Statutes, § 3894.

11 Ex parte Jackson, 96 U. S. 727 (1878).

12 26 Stat. at L. 465.

13 In re Rapier, 143 U. S. 110 (1892). In the Jackson case, however, the court says that "the difficulty attending the subject arises, not from the want of power in Congress to prescribe the regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail."

age to different articles, and prohibiting some altogether, it may not also classify the recipients of such matter, and forbid the delivery of letters to such persons or corporations as in its judgment are making use of the mails for the purpose of fraud or deception, or the dissemination among its citizens of information of a character calculated to debauch public morality." " 14

A sweeping power in Congress has, therefore, been recognized, but in every instance its exercise has been direct. The laws which have been passed were aimed at the articles themselves on the ground that they were fraudulent, immoral, or dangerous; they were excluded from the mails, and persons violating this regulation are dealt with criminally. But Congress has not yet attempted to prevent the issuance of lottery tickets or the publication of obscene literature; it has simply refused to lend encouragement to immorality by permitting the use of a federal agency.15

II. THE NEWSPAPER LAW AND ITS JUSTIFICATION.

It is evident that the "newspaper publicity law" set forth at the beginning of this paper is legislation of a character different from that upheld by the Supreme Court in the decisions which have been quoted. As claimed in the defendants' briefs, the law was designed "to regulate journalism." Relying upon its power over the mails, Congress threatened those publications which enjoy second-class rates with a denial of this privilege should they refuse to comply with certain conditions; and, moreover, it was made a crime to continue to use the second-class rates and violate the stipulation that all reading matter for the publication of which a valuable consideration is received "shall be plainly marked 'advertisement." Such regulations, without any reference to the

14 Public Clearing House v. Coyne, 194 U. S. 497 (1904). This case also decided that the power to determine whether a fraudulent use was being made of the mails could be delegated by Congress to the Postmaster General.

15 The Supreme Court has held that no distinction can be drawn between mala prohibita and mala in se. (In re Rapier, supra.) It was argued that the mails could not be used to promote murder, arson, etc. (mala in se), but that, on the other hand, Congress had not equal power with regard to matters which it might declare criminal (mala prohibita). But, said the court, "it would be for Congress to determine what are within and what without the rule." Our present inquiry, however, is not concerned with this phase.

use of the mails, would be obviously outside the constitutional power of Congress.

By the narrow, but nevertheless convincing, line of reasoning just indicated, the Supreme Court, through Chief Justice White, justified the law without being put to the necessity of making any definite declaration as to the limits to which Congress may go in its exercise of what, lacking a better phrase, we may call "indirect regulation under the postal power."

The court's opinion shows that in the classification of mail matter there has been no attempt at uniformity, and that periodical publications have enjoyed special favors by reason of legislative adherence to what has been described as "the historic policy of encouraging by low postal rates the dissemination of current intelligence." 16 It is shown that as a condition precedent to being "entered as second-class mail matter," and enjoying the low rates which are maintained at a loss, the government demands answers to a score of questions concerning ownership, editorial direction, advertising discrimination, specimen copies, and circulation. To the Third Assistant Postmaster General is given the authority of accepting or rejecting applications for entry at the second-class rate." The Supreme Court simply looked upon the "newspaper law" as laying down new conditions, compliance with which will continue the right "to enjoy great privileges and advantages at the public expense." Part of the opinion makes this clear:

"As the right to consider the character of the publication as an advertising medium was previously deemed to be incidental to the exercise of the power to classify for the purpose of the second-class mail, it is impossible in reason to perceive why the new condition as to marking matter, which is paid for as an advertisement is not equally incidental to the right to classify. And the additionai exactions as to disclosure of stockholders, principal creditors, etc., also are as clearly incidental to the power to classify as are the requirements as to disclosure of ownership, editors, etc., which for so many years formed the basis of the right

16 "Report of the Commission on Second-Class Mail Matter," 143. In his message of February 22, 1912, transmitting this report to Congress, President Taft said: "The findings of the commission confirm the view that the cost of handling and transporting second-class mail matter is greatly in excess of the postage paid, and that an increase in the rate is not only justified by the facts, but is desirable."

17 "Postal Laws and Regulations" (1902), p. 198.