Representative Webb sought to justify the bill on the analogy of the local-option measures enacted in the States. "Strictly speaking," he said, " this law is not a prohibition law. It is a local option measure to give to the States what they have always been entitled to under our interpretation of the Constitution-the right to control this troublesome question for themselves." (Cong. Rec. vol. 49, p. 3445).

"The principle upon which local option laws, so called, have been sustained," said Fuller, C. J., in In re Rahrer (140 U. S. 561), "is that while the legislature can not delegate its power to make a law, it can make a law which leaves it to municipalities or the people to determine some fact or state of things, upon which the action of the law may depend; but we do not rest the validity of the act of Congress on this analogy. The power over interstate commerce is too vital to the integrity of the Nation to be qualified by any refinement of reasoning. The power to regulate is solely in the General Government, and it is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State."

I find no decision which sustains any such delegation of legislative power as supports the local option provisions of State laws relating to traffic in liquor.

Representative Webb also sought to justify the law upon the principle of those cases which delegate the duty or power to an individual of finding some fact before a congressional act takes effect. (Cong. Rec. vol. 49, p. 3449.) These cases are well understood. The latest one in the Supreme Court is United States v. Grimaud (220 U. S. 506). That and similar cases turned upon the well-recognized principle of Congress declaring a general rule and devolving upon a subordinate agency the power to ascertain when the facts brought a particular case within the rule. But here Congress does not declare a general rule. It does not provide that liquor shall not be, as a general rule, transported in interstate commerce; it does not declare liquor

to be an outlaw of commerce; it does not declare liquor to be deleterious to health or destructive of good morals; but it declares that when one of the parties interested in liquor which is the subject of an interstate shipment, intends to introduce it into a State in violation of the laws of that State, its carriage shall be unlawful. Such regulation can not be sustained on the principles in the Grimaud case or those similar to it.

Finally, Senator Kenyon maintained that the purpose of the bill "and its only purpose, is to remove the impediment existing as to the States in the exercise of their police powers regarding the traffic or control of intoxicating liquors within their borders."

But it is unnecessary to rehearse the reasoning in the various decisions heretofore quoted which dispose of this contention.

The proposition begs the whole question under consideration and can only be conceded if it be held that Congress can abdicate entirely its power over interstate commerce in an article which it does not itself declare to be "an outlaw of commerce," but which it leaves to the varying legislation of the respective States to more or less endow with qualities of outlawry. Without prolonging this discussion in which I have endeavored to meet and analyze the various contentions set forth in behalf of this bill, I am compelled to the conclusion that it is not only of doubtful constitutionality, but that unless the Supreme Court shall recede from a well-settled line of decisions extending over a long period of years, it would most certainly declare this legislation to be without the constitutional powers of Congress. Very respectfully,

THE PRESIDENT.

GEORGE W. WICKERSHAM.

PARCEL POST-EXECUTIVE DEPARTMENTS.

The Executive Departments and the officers of the Government are entitled to the benefit of the parcel-post law, and penalty envel opes or labels may be used in sending by parcel-post fourth-class matter not exceeding 11 pounds in weight.

DEPARTMENT OF JUSTICE,

February 28, 1913.

SIR: I have the honor to acknowledge the receipt of your communication of January 30 ultimo, asking to be advised whether your Department, its various bureaus and officers. are entitled to the benefit of the parcel-post law, and whether they have the right to send by parcel post fourthclass matter not exceeding 11 pounds in weight, under penalty envelope or label.

From your letter it appears that on January 22 the Postmaster General, replying to a request from your Department, advised you that an Executive Department or officer of the Government who desired to send in the mails official fourth-class matter in excess of 4 pounds and not. coming within any of the exceptions provided by the acts he mentions, was required to affix thereto the necessary postage in distinctive parcel-post stamps, as provided by section 8 of the act of August 24, 1912; while on January 24 the Comptroller of the Treasury, in response to a like request, expressed the opinion that any appropriation for your Department or any of its bureaus which was available for the payment of freight or express charges on a package not exceeding 11 pounds in weight was also available for the purchase of parcel-post stamps for use in transmitting a similar package through the mails, " provided said package can not legally be transmitted under a penalty envelope or label."

I presume that the proviso last quoted raises the second question upon which you desire the opinion of this Department, viz, whether packages of the kind mentioned can legally be transmitted under a penalty envelope or label. It follows that a determination of this question, although involving a review of the ruling of the Postmaster General, does concern a matter arising in the administration of

your Department, namely, the propriety of expending the appropriation referred to in the purchase of parcel-post stamps for use on official fourth-class matter. I therefore proceed to a consideration of the problem presented by your second question.

The pertinent provisions of the act of August 24, 1912, establishing the parcel post are as follows:

"SEC. 8. That hereafter fourth-class mail matter shall embrace all other matter, including farm and factory products, not now embraced by law in either the first, second, or third class, not exceeding eleven pounds in weight, nor greater in size than seventy-two inches in length and girth combined, nor in form and kind likely to injure the person of any postal employee or damage the mail equipment or other mail matter and not of a character perishable within a period reasonably required for transportation and delivery.

"That the rate of postage on fourth-class matter weighing not more than four ounces shall be one cent for each cunce or fraction of an ounce; and on such matter in excess of four ounces in weight the rate shall be by the pound, as hereinafter provided, the postage in all cases to be prepaid by distinctive postage stamps affixed. (37 Stat. 557.)"

In determining whether the words "the postage in all cases to be prepaid by distinctive postage stamps affixed" were intended to prevent your Department from sending under the penalty label fourth-class matter not exceeding 11 pounds in weight, it will be helpful to review briefly the course of legislation dealing with the classification of mail matter and the prepayment of postage and conferring the penalty privilege.

Prior to the enactment of the statute creating the penalty privilege, the following sections of the Revised Statutes were in force:

"SEC. 3896. Postage on all mail matter must be prepaid by stamps at the time of mailing, unless herein otherwise provided for.

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"SEC. 3897. All mail matter of the third class must be prepaid in full in postage stamps at the office of mailing."

The act of which section 3896 was a part contained no provision exempting governmental matter from the operation of that section. In fact, the Departments were expressly required to purchase special stamps and stamped envelopes for official use. (R. S., sec. 3915, as amended Feb. 27, 1877, 19 Stat. 250.)

At this time the third class included merchandise as well as miscellaneous printed matter. (R. S., sec 3878.) The present system of classification was adopted and the weight limit of all classes fixed by the act of March 3, 1879, sections 17 and 20 (20 Stat. 359, 360), which provides:

* * *

"That mail matter of the third class shall embrace books, transient newspapers, and periodicals, circulars, and other matter wholly in print and postage shall be paid at the rate of one cent for each two ounces or fractional part thereof, and shall fully be prepaid by postage stamps affixed to said matter. *

*

*

"SEC. 20. That mailable matter of the fourth class shall embrace all matter not embraced in the first, second, or third class which is not in its form or nature liable to destroy, deface, or otherwise damage the contents of the mail bag, or harm the person of anyone engaged in the postal service, and is not above the weight provided by law, which is hereby declared to be not exceeding four pounds. for each package thereof, except in case of single books weighing in excess of that amount, and except for books and documents published or circulated by order of Congress, or official matter emanating from any of the departments of the Government.

*

Section 20 of this act was amended by the act of June 8, 1896 (29 Stat. 262), by the insertion of the words " printed or written" before the phrase "official matter emanating from any of the Departments of the Government."

Similar provision for the prepayment of postage on first-class matter is contained in section 9 of the act of March 3, 1879 (20 Stat. 358).