THE POWER OF CONGRESS TO ESTABLISH POSTOFFICES
_Expansion of Facilities._--“Our whole economic, social and political
system,” says President Hadley, “has become so dependent upon free and
secure postal communication, that the attempt to measure its specific
effects can be little less than a waste of words.”[49] This is hardly
an overstatement of the case, yet, as we have seen, the importance of
the postal function was recognized before the Constitution was adopted
and when it comprehended only the transmission of intelligence. The
increased importance, however, has been absolute as well as relative,
since through the postoffice the government now does much more than
merely facilitate communication between its citizens.
An act for the temporary establishment of the postoffice was passed by
Congress on September 22, 1789.[50] It provided for the appointment of
a postmaster general, all the details and regulations to be as they
“were under the resolutions and ordinances of the late Congress. The
postmaster general to be subject to the direction of the president
of the United States, in performing the duties of his office, and in
forming contracts for the transportation of the mail.”[51]
For a considerable period congressional and administrative efforts
were devoted almost exclusively to the extension of facilities;
postoffices were established as rapidly as possible; every effort
was made to secure speedy transportation of the mail, to insure
its security, to prevent private competition, and by means of an
increasingly efficient system to weld together distant parts of the
country. The communications of the postmasters general are devoted to
recommendations for the improvement of the service;[52] presidential
messages take pride in reporting the growth of the establishment, which
was rapid. In 1790 there were about 100 postoffices in the country; the
receipts from October, 1790 to October, 1791 were $31,706.27 and the
disbursements left a balance of $5,498.51.[53]
But in 1823 Monroe was able to report to Congress that 88,600 miles of
postroads had been established by law and that the mail was transported
over 85,700 miles of this total.[54] During the two years from July 1,
1823 the increase of the transportation of the mail exceeded 1,500,000
miles annually and 1,040 new postoffices were established.[55] In 1828
the total mileage was 114,536 as compared with 5,642 in 1792 and in
1837 was 142,877 miles.[56] The receipts from postage for the year
ending March 31, 1828 were $1,058,204.34. These figures serve, in
some measure at least, to indicate the rapid expansion of the postal
system.[57]
At the same time there was a commensurate recognition of the importance
of the establishment in the attitude of Congress and the executive in
dealing with it as an administrative arm of the federal government. The
act of 1810 referred to the “postoffice establishment”; an incidental
use of the word “department” is to be found in the laws of 1799 and
1810,[58] but the system became an executive department in 1872 when
Congress, codifying the postal laws, passed an act under which the
department is now organized.[59] In 1827 the postmaster general’s
salary was increased to $6,000 per annum, and he was thus placed on
an equality with cabinet officers; two years later Jackson made him a
member of his official family.[60]
Later in this essay will be found a consideration of the use made by
Congress of the postroads clause,[61] in the assumption of authority
to aid in works of internal improvement, but here some mention should
be made of the connection which has existed between the desire for a
speedy transportation of the mail and aid granted to railroads. This
aid took the form of donations, with mail service free or at reasonable
rates, loans to companies, and general contracts for service, with the
purpose of giving aid as well as paying compensation.[62] In debating
the desirability of governmental stock subscriptions in transportation
undertakings Congress often adverted to the carriage of the mails;
and in 1834 it was proposed to give the Baltimore and Ohio Railroad
Company $320,000 in return for which the mail was to be carried free
forever.[63] Similar suggestions were made from time to time, but there
was little definite action, and in 1845 the postmaster general was
authorized to contract for the transportation of the mail by railroads,
without inviting bids.[64]
Since 1850 the postoffice has not been used, at least avowedly, to aid
railways; the period has rather been one of regulation. Disputes have
arisen over the proper compensation for service rendered, and companies
have refused to give facilities for transportation.[65] It was
proposed, therefore, that the roads be forced to carry the mails, and
in 1870 an act to this effect was applied in the District of Columbia,
compensation to be determined by three commissioners. But in 1872,[66]
the codification of the postal laws provided rates for service, with
compulsory service by the roads which had received land grants; if
the companies were not satisfied with the amounts fixed by Congress,
letters were to be forwarded by horse, and the articles for which
expedition was not required, were to be sent by stage.[67] At present
compensation is determined by an elaborate system, under maximum rates
fixed by Congress. The postmaster general may make reductions for
refusal to transport, when required, upon the fastest trains,[68] and
may impose fines for inefficient service and delays.[69] The necessity
has not arisen, but if the railways should refuse to carry the mails,
on the ground of inadequate compensation, Congress would have the right
to compel transportation, upon reasonable compensation for the taking
of private property for public use.[70]
This, however, is only one phase of the financial problem of the
postoffice; another, very important phase involves the cost to patrons.
Rates for the transmission of letters remained practically unaltered
until 1845, while the charges for newspapers were slightly changed in
the direction of allowing the publishers special privileges. The act
of 1845[71] exercised a broad authority of classification, separating
the mail in order to expedite it, and introducing the free privilege
for newspapers not more than 1,900 square inches in size, distributed
within 30 miles of the place of printing. The act of 1847[72] allowed
free exchanges only between publishers, and following this statute many
changes were made, both in the conditions of exemption from postage
and the rates which were charged. The classification now obtaining was
adopted in 1879,[73] and the cent a pound rate for periodical matter
admitted to “second class” privileges was fixed in 1885.[74]
But while concessions were made to encourage the circulation of
newspapers, Congress maintained rigid restrictions in respect to the
size of the packages that could be carried in the mails. The limit was
three, and later four pounds. This was originally due to the fact that
large packages could not be handled with convenience by the system and
were likely to injure or deface other mail matter. But when federal
facilities became sufficient to take off, or at least raise, the weight
limit, the express companies, which at this time were beginning to
derive a large revenue from carrying parcels, were able to postpone
congressional action until August 24, 1912[75] when the Parcels Post
Act was passed after it had been repeatedly recommended by postmasters
general and long desired by public opinion.[76] Such delay has, of
course, not been without bitter criticism,[77] and in the forties
the rise of the express companies, and their transportation of large
packets and in some cases of matter which the postoffice undertook
to carry, reduced federal revenues and seriously interfered with the
efficiency and effectiveness of the government monopoly.[78] But at any
time the situation could have been remedied by congressional action. On
the other hand, objection has been made to the assumption by Congress
under the postoffice clause, of the functions of a common carrier, on
the ground that they were not comprehended by the original grant.[79]
Now, Congress clearly has the power to insure, upon the payment
of extra fees, the safe transmission of letters or packets to the
addressees, but the postal money order system cannot be justified upon
any such theory. The act of May 17, 1864[80] authorized the postmaster
general to establish, “under such rules and regulations as he may
find expedient and necessary, a uniform money order system at all
post-offices which he may deem suitable therefor.” The law fixed thirty
dollars as the maximum amount for which an order could be issued, the
purpose of the system being to afford “a cheap, immediate and safe
agency for the transfer through the mails of small sums of money.”[81]
In practice the payee or party for whom the money was intended, was not
named in the order, which was given to the applicant upon the payment
of the sum specified and the proper fee, and his filling out a printed
form of application. This was forwarded to the postmaster at the office
upon which the order was drawn, and the latter, therefore, had the
information necessary to detect fraud if any was attempted. The issue
of these postal notes was discontinued in 1894,[82] although their
use has since been urged;[83] under the money order system as it now
obtains, the payee is named in the instrument.[84]
In the Senate there was no debate other than on the administrative
features of the law of 1864;[85] the constitutional question was not
discussed. Some doubt, however, has since been expressed as to the
power of Congress to establish a system of postal savings banks. These
were, according to the title of the act, to hold “savings at interest
with the security of the government for repayment thereof, and for
other purposes.” It was provided that available funds should be used in
the redemption of United States bonds, and the act recited, “that the
faith of the United States is solemnly pledged to the payment of the
deposits made in the postal savings depository offices, with accrued
interest thereof, as herein provided.” This section would seem to imply
that the receiving of deposits could be considered as borrowing money
on the credit of the United States.
Objection, upon constitutional grounds, was, however, made by Mr. Moon
of Tennessee, in a minority report which he presented to the House of
Representatives.[86] He argued that no express authority could be found
in the Constitution, and that “the depository is not a bank within the
legal meaning of that word; nor do the trustees created by this act
collect money (deposits) from the people for governmental purposes,
but simply become federal trustees of private funds for loan or
reinvestment at interest.”
It would seem, however, that the provision for redeeming United States
bonds and the general tenor of the law, could, without violence,
enable the system to be looked upon as established for the purpose of
borrowing money on the credit of the United States, or of obviating
in some degree the issuance of emergency currency in financial crises
through the deposit with the government, and subsequent circulation,
of large sums of money which has hitherto been hoarded. But apart
from this, while extensions of the postal function to include
banking facilities for the receipt of deposits and the issuance of
money orders, were certainly not contemplated by the framers of
the Constitution, and are not connected with the transmission of
intelligence, they are, from foreign precedent, logical parts of
the modern postal power. It is extremely difficult, moreover, for a
citizen to show an amount of interest sufficient to bring before the
courts the constitutionality of such non-essential functions of the
government.[87] And especially is this the case when their exercise
does not entail taxation, but actually results in increased revenues,
and interferes slightly if at all, with the exercise of the same
functions by private undertakings. Finally, it should be remembered
that the powers granted in the postal clause “are not confined to
the instrumentalities of commerce, or the postal service known or in
use when the Constitution was adopted, but they keep pace with the
progress of the country, and adapt themselves to the new developments
of time and circumstances.”[88] According to this view there is no
constitutional doubt as to the right of the postoffice to engage in the
banking activities thus far attempted.
_Collectivist Activities._--The primary purpose of the postal power is,
of course, the transmission of intelligence, but with vast equipment
and organization once in existence, it is a comparatively simple matter
for the government to increase in number and in kind, the services
which the postoffice may perform for its patrons. In New Zealand
postoffices, for example, a person can buy stamps, mail a letter or
parcel, send a telegram, deposit money, collect a pension, report
births and deaths, and insure his life.[89]
It is due, in part, at least, to the federal system of government in
the United States that Congress has been reluctant to increase the
functions of the postoffice. But the money order system and postal
savings banks have now been established, and it seems inevitable that
the telegraph and telephone systems of the country will shortly be
nationalized.[90] So also rural free delivery has caused congressional
aid to be given to the good roads movement and several schemes
have been proposed for extensive road construction under federal
auspices.[91]
The inauguration of the parcel post, which in fact has made the
postoffice a common carrier, has led to serious efforts on the part of
the government towards an adequate appreciation, by possible users,
of the advantages of the new facilities, and a campaign of education
is carried on, not so much with a view of increasing revenues, as
of fostering the “producer to consumer” movement, particularly in
farm products. Congress authorized the Secretary of Agriculture “to
acquire and diffuse among the people of the United States useful
information on subjects connected with the marketing and distributing
of farm products” and under this authority the Office of Markets was
established on May 16, 1913.[92] It employs specialists in marketing
various commodities, and issues bulletins on the facilities for, and
advantages of, shipping different products by parcel post. Agents are
sent to appropriate sections of the country to do personal work and
local offices are active in collecting lists of the names of farmers
and others who have produce to sell, and printing and distributing
these lists to postal patrons who may become purchasers.[93]
It is proposed, furthermore, to use postoffices as employment bureaus,
and a bill, the adoption of which was strongly urged on the Sixty-third
Congress by Senator Clapp, provided that the postmaster general
establish, “under such rules and regulations as he may prescribe,
mutual employment exchanges at all presidential postoffices, where
registers may be kept of any and all persons who make application to be
registered, as either seeking employment, or seeking employees, which
information may also be exchanged between such offices, all in the
interest of the proper and timely distribution of labor throughout the
country.”[94] This service would be made self-sustaining through the
sale of registration stamps. The bill failed of passage.
But pending action of this character, or the adoption by Congress
of legislation designed to lessen unemployment without using the
postoffice, the Secretary of Labor and the Postmaster General,
cooperated in formulating an arrangement by which “information relating
to the distribution of labor could be widely scattered and posted under
the auspices of the United States Government.
“The plan,” Secretary Wilson goes on to explain, “consists of
dated bulletins sent out by the Department of Labor to postmasters
throughout the country, by whom they are posted on the bulletin
boards so that every postoffice patron,--and this means every man,
woman and child,--can easily refer to the information. These are
known as ‘Bulletins of Opportunities.’ They are replaced with others
from time to time as necessary, and suitable notice is given when
they become inoperative. This plan has received the indorsement of
the various state authorities, who have been, and are, cooperating
with the Department of Labor in scattering information about labor
opportunities and conditions in their respective states.”[95]
In collectivist facilities, either at present in existence or very
seriously urged, the American postoffice is, then, not far behind that
of New Zealand. It affords a significant illustration of the tendency
of the federal government gradually to engage in many activities,
properly national, which are too big for the states, and too expensive
or paternalistic for private undertakings. The aim is that the maximum
benefit may inure to the citizen.
_Postal Crimes._--The postal power, as Marshall pointed out in
McCulloch v. Maryland,[96] “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 postroad, from one postoffice
to another. And from this implied power has again been inferred the
right to punish those who steal letters from the postoffice, or rob
the mail. It may be said with some plausibility that the right to
carry the mail and to punish those who rob it is not indispensably
necessary to the establishment of a postoffice and postroad. The right
is indeed essential to the beneficial exercise of the power, but not
indispensably necessary to its existence.”
Such a power was asserted even before the adoption of the Constitution;
the Ordinance of 1782 meticulously forbade the employees to delay or
rob the mails, under penalty of fines “to be used for and recovered
in an action of debt” by the treasurer of the United States; a
supplementary ordinance attempted to establish a monopoly, and it
was made lawful for the postmaster general “to allow and pay to any
informer, one moiety of the penalties which may be recovered upon his
information, for offences, against the fourth and fifth clauses of the
above mentioned ordinance.”[97]
The Act of February 20, 1792[98] greatly extended these criminal
provisions, infraction of which was to be punished in the federal
courts. Some of the penalties provided for the more serious offences
now seem severe, but they are evidence of how important Congress deemed
the inviolability of the mails. By this act it was provided, “that if
any person shall obstruct or retard the passage of the mail, or of any
horse or carriage carrying the same, he shall, upon conviction, for
every offence pay a fine not exceeding one hundred dollars. And if any
ferryman shall, by wilful negligence, or refusal to transport the mail
across any ferry, delay the same, he shall forfeit and pay, for each
half hour that the same shall be so delayed, a sum not exceeding ten
dollars.” A fine and disqualification for holding any office under the
United States were the penalties inflicted “if any deputy postmaster
or other person authorized by the postmaster general to receive the
postage of letters, shall fraudulently demand or receive any rate of
postage, or any gratuity or reward, other than is provided by this act
for the postage of letters or packets.” Vessels were forbidden to enter
any port of the United States and break bulk until their letters had
been delivered to the postmaster, and the officer of the port could
require an oath of delivery. Exception, however, was made in the case
of letters to the owner or consignee, and when the vessel had letters
directed to another port.
In an effort to make the postal system efficient by insuring it
against private competition and the consequent diminution of revenues,
there was a provision (still in force, although modified), declaring
the federal establishment a monopoly and making any infringement
punishable by a fine. The act recited “that if any person, other than
the postmaster general or his deputies, or persons by them employed,
shall take up, receive, order, dispatch, carry, convey, or deliver, any
letter or letters, packet or packets, other than newspapers, for hire
or reward, or shall be concerned in setting up any foot or horse post,
wagon or other carriage, by or in which any letter or packet shall be
carried for hire, on any established postroad, or any packet or other
vessel or boat, or any conveyance whatever, whereby the revenue of the
general postoffice may be injured, every person so offending shall
forfeit for every such offence, the sum of two hundred dollars.[99]
_Provided_, that it shall and may be lawful for every person to send
letters or packets by special messenger.”
Fine and imprisonment were the punishments for unlawfully delaying,
embezzling, secreting, or destroying any letter or package not
containing money; but if the letter or packet contained any kind of
money, negotiable paper, bonds, or warrants, the punishment upon
conviction was death. The carrier was forbidden to desert the mail
before he reached his destination; robbing any carrier,[100] the
mail, or the postoffice was punishable by death. Ten dollars was the
penalty for an unlawful use of the franking privilege. One half of
all the fines recovered went to the persons informing and prosecuting
for the offences, and in 1797 it was provided that accomplices in the
commission of postal crimes should be subject to the same punishment
as the principals.[101] In 1810 whipping was abolished,[102] but the
death penalty for a second robbery, or for putting the carrier’s life
in jeopardy, was continued. This is strong evidence of congressional
insistence upon the sanctity of the mails, since in 1825 only fine and
imprisonment were the punishment for assaults on the high seas, or
within admiralty jurisdiction with intent to commit a felony.[103]
Upon the basis of these early regulations, Congress has passed many
laws calculated to prevent interference with the mails or their misuse;
most of the original crimes are still forbidden and the changes
made have been in detail rather than character, with one important
exception: there has gradually been built up an _Index Expurgatorius_
of articles which it is unlawful to deposit in, or to take from, the
mails for purposes of circulation. But with this exception, the penal
laws do not differ radically from those of a century ago.
Nearly all “Offenses against the Postal Service” have been brought
together as Chapter 8 of the Criminal Code of the United States.[104]
It is now unlawful to conduct, or profess to conduct, a postoffice
without authority; to carry the mail otherwise than according to law;
to set up private expresses; to transport persons unlawfully conveying
the mail; to send letters by private express or for carriers to convey
them over regular post routes otherwise than in the mail; to wear the
uniform of a carrier without authority or to pose as a carrier of the
United States mail when such is not in fact the case. Injuring mail
bags, stealing postoffice property, stealing or forcing mail locks
or keys, breaking into or entering a postoffice, unlawfully entering
a postal car, stealing, secreting and embezzling mail matter or its
contents,[105] assaulting a carrier with intent to rob and robbing the
mail; injuring letter boxes or mail matter; “knowingly and wilfully”
obstructing or retarding the passage of the mail, all are crimes
punishable in the federal courts.
It is an offence for any employee of the service to detain, destroy or
embezzle a letter or newspaper; for a ferryman to “delay the passage of
the mail by willful neglect or refusal to transport”; for the master of
a vessel to fail to deposit with the postoffice all mail from abroad
or to break bulk before making such delivery. No one may sell or use
a cancelled stamp or remove the cancellation marks; postal employees,
moreover, are prohibited from making false returns to increase their
compensation, from unlawfully collecting postage, from failing to
account for postage or to cancel stamps, and from issuing a money order
without payment.
There are also, as I have indicated, a number of laws denying the use
of the mails for the transmission of obscene or libellous writings,
lottery tickets and advertisements, fraudulent matter, poisons,
intoxicating liquors, explosives and similar articles which come under
the ban of the police power. Furthermore, the complexity of political
life and more numerous administrative problems in the service, have
given rise to a separate class of offences; thus it is criminal for a
member of Congress to be interested in a public contract, or a postal
employee in a mail contract; or for an employee to make or receive a
political contribution. There is, finally, the so-called “newspaper
publicity law,” the concluding paragraph of which compels, under
penalty of a fine, the marking as an advertisement of all reading
matter for the publication of which a valuable consideration is
received.[106]
Marshall’s _dictum_ in McCulloch v. Maryland has remained unquestioned;
it has never been doubted that Congress has the power to punish
offences against the mails themselves, or neglect of duty by postal
employees. The constitutionality of such legislation has never been
attacked; the courts have only been called upon to decide technical
points. For example, the word “rob” is used in its common law sense;
jeopardy “means a well-grounded apprehension of danger to life,
in case of refusal or resistance”; pistols are dangerous weapons
within the meaning of the law; and “all persons present at the
commission of a crime, consenting thereto, aiding, assisting, or
abetting therein, or in doing any act which is a constituent of the
offence, are principals.”[107] The detention of mail by one employed
in the postoffice, refers to a letter or packet before it reaches
its destination; the taking must be clandestine and the intent
criminal.[108] An indictment for advising a carrier to rob the mail
must aver that the offence has been committed;[109] a sword in the
hand, although not drawn, is a dangerous weapon; a pistol is presumed
to be charged.[110] These are some of the questions that the courts
have been called upon to determine.
Nor has there been any dispute as to the power of Congress to establish
a monopoly by forbidding private postal enterprises.[111] As was
pointed out in an early case, “No government has ever organized a
system of posts without securing to itself, to some extent, a monopoly
of the carriage of letters and mailable packets. The policy of such an
exclusive system is a subject of legislative, not of judicial inquiry.
But the monopoly of the government is an optional, not an essential
part of its postal system. The mere existence of a postal department
of the government is not an establishment of the monopoly.”[112] Thus
questions have arisen as to the extent and scope of the original
provision and the amendments that have been made to it.
In 1834, for example, New Orleans citizens complained of slow mails,
and proposed a plan of forming a private association for a daily
express line to New York. But the project being referred to Chancellor
Kent for his opinion, he advised that “the objects of the association
cannot be carried into effect, in the way proposed, without violating
the postoffice law.”[113] In 1844 the Attorney General gave an
opinion that letters carried over mail routes by private carriers
could not be charged with postage, nor could the letters be detained;
the only available course was “to enforce the penalties to which
all unauthorized carriers of letters on the mail routes are by law
subjected.”[114]
As for the general interpretation of the statute, a federal circuit
court, in holding that it was not unlawful to carry an unstamped
letter of advice concerning money shipped by express, said: “These
provisions of the postoffice law, being in derogation of common right,
must be construed strictly, and in the absence of clear and explicit
language, forbidding the carriage of a letter, under the circumstances
indicated, we must hold that the right to do so is not interfered
with.”[115] The Supreme Court of the United States, however, had
previously declared that the act was undoubtedly a revenue law,[116]
although “not drawn with all the precision and explicitness desirable
in penal legislation.” And the rule of interpretation as laid down by
the Department of Justice was that the acts “are not subjected to the
narrow rules formerly applied in the construction of penal statutes....
In our courts, such acts receive the same construction that would be
put upon any other remedial legislation; that is, a fair, sensible,
practical interpretation, without reference to any merely technical
rule in favor of the accused.”[117]
The question arose in 1858 as to the legality of carrying letters
to and from the postoffice in a town where a public carrier had not
been appointed. The attorney general was of the opinion that the act
forbade this. “A person,” he said, “who intends to make the carrying
of letters his regular business, or part of his business, and to do
it periodically for hire, in opposition to the public carrier, is
legally incapable of receiving authority to take letters out of the
postoffice for that purpose.”[118] But when the question went to the
courts, a contrary position was taken. The Act of March 3, 1851[119]
authorized the postmaster general “to establish postroutes within the
cities or towns.” The court held that the word “postroutes” was not
synonymous with “postroads” used in that portion of the act of 1827
which made criminal attempts to compete with the federal government in
carrying the mail. Hence private letter carriers violated no law. This
decision,[120] however, was overruled when Congress extended[121] the
provisions of the Act of 1827 to all postroutes already, or thereafter
established, and in 1872[122] declared letter carrier routes within
cities “postroads.”[123]
Thus when an express company had a number of messengers to collect
letters daily from certain customers who paid with private stamps,
previously sold, the letters being taken to an office, sorted, and
dispatched to the addressees, the court held that these deliveries
could not be deemed “by messenger employed for the particular occasion
only,” but were deliveries “by regular trips and at stated periods,”
and the defendant was therefore liable.[124]
There has always been the exception that the carrier is permitted to
transport, otherwise than in the mail, letters or packets relating
“to some part of the cargo of such steamboat or other vessel, _to the
current business of the carrier_, or to some article” carried at the
same time.[125] Under this inhibition it is not lawful for a railroad
company to carry letters from one connecting line to another line, when
the letters relate to through business. The letters must be sent by, or
addressed to, the carrying company.[126] But in 1912 Attorney General
Wickersham decided that a railroad might carry over its lines, not in
the mail, letters written by the secretary of a relief association
(which was composed of the employees of the railroad) to the railroad
company, but not letters from the officers of the association to its
members.[127]
In 1915 the Supreme Court was called upon to construe the statute and
held within the “current business” exception “letters of a telegraph
superintendent, jointly appointed and paid by a railway company, and a
telegraph company, which were written to a railway station agent and
telegraph operator with the purpose of promoting the efficient and
successful operation of the telegraph business in the success of which
the railway company, under the contract with the telegraph company, has
a financial interest.” The Court refused, however, to consider whether
the statute is “penal or remedial, or whether it is to have a strict
or a liberal interpretation.”[128]
Another class of offences has arisen out of the section providing
punishment for “whoever shall knowingly and wilfully obstruct or retard
the passage of the mail,” or any conveyance by which it is being
carried. Wide extension of federal authority and effective federal
supremacy have been enforced under this provision, it having been held
that a defendant toll gate keeper cannot plead the justification of a
state law for stopping a carrier of the mail.[129] It has been decided,
also, that mail matter in the postoffice, ready for delivery, is
“obstructed” within the meaning of the statute by an unprovoked assault
on the postmaster. “The law presumes that the defendant intended by his
act the result which followed and the offense is complete.” An act, if
unlawful, resulting in an obstruction, is _per se_ done knowingly and
wilfully.[130]
Preventing a mail train from running as made up, even though one is
willing that the mail car shall go on, is an obstruction within the
meaning of the statute,[131] and where the regular passenger trains of
a railroad company have been selected as the ones to carry the mail,
the failure of the railroad to run other trains for that purpose is
not necessarily unlawful.[132] It is no defense, however, that the
obstruction was effected merely by leaving the employment, “where the
motive of quitting was to retard the mails, and had nothing to do with
the terms of employment.”[133]
These doctrines were given their widest scope in the Debs cases. It
was held that an indictment for obstructing the mails need not set out
that the act was done feloniously, since the crime was not a felony at
the common law; nor, furthermore, is it necessary to show knowledge
that the mails would be interfered with. “The laws make all railways
postroutes of the United States,” said the court, “and it is within the
range of everyone’s knowledge that a large proportion of the passenger
trains on these roads carry the mails.” Finally where the indictment
is for conspiracy to obstruct the mails, and overt acts in pursuance
thereof, “it is not restricted to a single overt act, since the gist of
the offense is conspiracy, which is a single offense.”[134]
The authority of Congress may, moreover, be enforced otherwise than by
prosecution for violations of this provision. “The entire strength of
the nation,” said the Supreme Court, “may be used to enforce in any
part of the land the full and free exercise of all national powers
and the security of all rights entrusted by the Constitution to its
care. The strong arm of the national government may be put forth to
brush away all obstructions to the freedom of interstate commerce or
the transportation of the mails. If the emergency arises the army of
the Nation, and all its militia, are at the service of the Nation to
compel obedience to its laws.” And the Supreme Court went on to declare
that “it is equally within its [the federal government’s] competency
to appeal to the civil courts for an inquiry and determination as
to the existence and character of any alleged obstructions, and if
such are found to exist, or threaten to occur, to invoke the powers
of those courts to remove or restrain such obstructions; that the
jurisdiction of the courts to interfere in such matters by injunction
is one recognized from ancient times and by indubitable authority; ...
that the proceeding by injunction is of a civil character and may be
enforced by proceedings in contempt; that such proceedings are not in
execution of the criminal laws of the land; that the penalty for a
violation of the injunction is no substitute for and no defence to a
prosecution for any criminal offences committed in the course of such
violation.”[135]
When we turn, however, to the power of Congress to exclude from the
mails, a different problem is presented. As has been pointed out,
early in the history of the postoffice, mail matter was classified
according to its character and different rates of postage were charged.
In 1799 the Postmaster General sent a letter to Congress complaining
of “large and inconvenient packages” and the Act of 1810 provided that
“no postmaster shall be obliged to receive, to be conveyed by mail,
any packet which shall weigh more than three pounds.”[136] Congress,
therefore, very early exercised the right of determining what articles
should be mailable and the conditions upon which they should be carried.
These exclusions were made to protect the mails. Objection was made
to the “inconvenient packages” on the ground that the transit was
retarded and smaller articles were injured. Such restrictions have
been maintained, the postoffice regulations now prescribing the
limits, both of weight and size. Congress has, moreover, on the same
ground, conditionally excluded a variety of articles, such as poisons,
explosives, inflammable materials, infernal machines, disease germs,
and all compositions liable to hurt anyone or injure the mails. It
is provided, however, that the postmaster general “may permit the
transmission in the mails under such rules and regulations as he shall
prescribe as to preparation and packing” of any of these articles,
“not outwardly or of their own force dangerous or injurious to life,
health and property.” Intoxicating liquors are absolutely excluded.
Any violations of the statutory provisions or of regulations made by
the postmaster general in pursuance of the authority given him, are
punishable by fine and imprisonment.[137]
The absolute exclusion of intoxicants, however, cannot be justified
upon the same principles as the conditional exclusions, since the
danger to the mails can only arise from the fact that they are liquids.
This distinction leads naturally to another class of articles which
are denied postal facilities on account of the effect they will have
on recipients. In this class is all printed or written matter which
is obscene, libellous and indecent, or which relates to lotteries and
fraudulent schemes.[138]
The first inhibition was made by Congress in the Act of March 3, 1865,
and by the Act of June 8, 1872, codifying previous laws and organizing
the postoffice on its present basis, the use of the mails was denied
to obscene matter, cards “upon which scurrilous epithets may have
been written or printed, or disloyal devices printed or engraved” and
“letters or circulars concerning illegal lotteries.”[139] It has since
been made criminal to take obscene or scurrilous matter from the mails
for purposes of circulation.[140]
Before the Supreme Court of the United States, the power of Congress
to exclude obscene and indecent matter from the mails[141] has never
been seriously questioned, and the points presented for determination,
largely to the lower federal courts, have not been as to the
constitutional authority of Congress.[142] In 1890, the Supreme Court
held that under the Act of July 12, 1876 it was not an offence to
deposit in the mails an obscene letter, enclosed in an envelope, and
refused to consider the amendment made in 1888 which had extended the
inhibition to sealed matter, closed to inspection.[143] But in 1895,
the Court determined that while the possession of obscene pictures is
not forbidden, it is an offence to deposit in the mails a letter, not
in itself objectionable, but conveying information as to where, and of
whom, such pictures could be obtained.[144] And the next year the Court
refused to accept the defence that the obscene matter was mailed in
reply to decoy letters by a government detective.[145]
It was held, moreover, that “the words ‘obscene,’ ‘lewd’ and
‘lascivious,’ as used in the statute, signify that form of immorality
which has relation to sexual impurity, and have the same meaning
as is given them at common law in prosecutions for obscene libel.
As the statute is highly penal, it should not be held to embrace
language unless it is fairly within its letter and spirit.”[146] The
penal code of 1909 extended the language to exclude “every filthy”
book, pamphlet, picture or letter, and this in effect overruled the
Swearingen case.[147]
There have been questions, also, as to the requirements for a valid
indictment, which, it has been held, need not set out the objectionable
matter, but must inform the accused of the nature of the charge
against him.[148] The courts have varied as to whether the test of
obscenity is that laid down by Lord Cockburn: Is the tendency of the
matter “to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort
would fall”?[149] or the dictionary meaning as “offensive to chastity,
decency or delicacy.” The question as to what is obscene, however, is
for the jury to determine.[150]
Congress has also denied postal facilities to “all matter otherwise
mailable by law, upon the envelope or outside cover or wrapper of
which, or any postal card upon which any delineations, epithets, terms,
or language of an indecent, lewd ... libelous, scurrilous, defamatory,
or threatening character, or calculated by the terms or manner or style
of display and obviously intended to reflect injuriously upon the
character or conduct of another, may be written or printed or otherwise
impressed or apparent.” This prohibition has been extended to include
a postal card demanding the payment of a debt and stating that “if
it is not paid at once we shall place the same with our lawyer for
collection.”[151]
It has been held, however, that “outside cover or wrapper” does
not include the outside sheet of a newspaper and thus the postal
authorities are unable to exclude periodical publications on the ground
that they contain scurrilous or defamatory matter.[152] From time to
time bills have been introduced in Congress to authorize the postmaster
general to exclude from the second-class privilege publications, as
such, single issues of which are found to contain such non-mailable
matter; but no favorable action has ever been taken by Congress on
any of these bills. An effort has also been made to deny all postal
facilities in such cases.[153]
Vigorous objection has been made to the validity of laws excluding
obscene matter, but the arguments have in no case any authoritative
sponsorship. One writer, for example, urges that “under the pretext of
regulating the mails,” Congress controls “the psycho-sexual condition
of the postal patrons.” “The statute,” he goes on to say, “furnishes
no standard or test by which to differentiate what book is obscene
from that which is not.”[154] Such a contention, so far as it is one
of _constitutional weakness_ in Congress is plainly invalid. Immoral
libels are an offence at the common law, “not because it is either the
duty or province of the law to promote religion or morality by any
direct means or punishments, but because the line which must be drawn
is between what is and is not the average tone of morality which each
person is entitled to expect at the hands of his neighbor as the basis
of their mutual dealings.”[155] The standard to determine what is
obscene is the same as that which has prevailed at the common law.
The right of individuals to use the mails is not an absolute one;
the legislative department of the government may impose reasonable
restrictions on its exercise. It may say that a public convenience is
not to be used to injure the morals of the citizens and may exclude
such injurious matter, not with the view of making immorality criminal,
but simply in order that the circulation may not be encouraged by the
government. And to make this denial of facilities effective, Congress
may punish violations. The grant of the postal power (to borrow the
language used by the Supreme Court in a commerce case) “is complete in
itself,” and “Congress, as an incident to it, may adopt not only means
necessary but convenient to its exercise, and the means may have the
quality of police regulations.” The right to use the mails is “given
for beneficial exercise,” and may be denied when it “is attempted to be
perverted to and justify baneful existence.”[156]
With regard to lotteries, however, the case is not so clear. The law
declared that “no letter or circular concerning [illegal] lotteries,
so-called gift concerts, or other similar enterprises, offering prizes,
or concerning schemes devised and intended to deceive and defraud the
public, for the purpose of obtaining money under false pretenses,
shall be carried in the mail,” and made violation criminal.[157] In
1876 the word “illegal” was stricken out, so that letters or circulars
concerning all lotteries were prohibited,[158] and in 1890 the law was
further amended so as to include lottery advertisements in newspapers
and to permit postmasters to withhold suspected mail.[159] Trial of
offenders may take place either in the district where the letter was
mailed, or that to which it was addressed.[160]
The Senate Committee in charge of the amendments proposed in 1890,
reported the bill to be based “on the conceded power of the government
to determine what character of matter may be sent through the mails;
and its purpose is to protect the general welfare and morality of the
people against the pernicious effects of lotteries.”[161] For authority
the committee relied upon the case of Phalen v. Virginia, in which the
Supreme Court said:
“The suppression of nuisances injurious to public health or morality
is among the most important duties of government. Experience has shown
that the common forms of gambling are comparatively innocuous when
placed in contrast with the widespread pestilence of lotteries. The
former are confined to a few persons and places, but the latter infests
the whole community: it enters every dwelling; it reaches every class;
it preys upon the hard earnings of the poor; it plunders the ignorant
and simple.” At common law, the committee argued, the king could not
sanction a nuisance; by parity of reasoning a nuisance may be denied
governmental encouragement.[162]
All of the anti-lottery legislation, enacted by Congress, has been
sustained by the Supreme Court of the United States, although, I think,
the reasoning might well have been more cogent. In the first case
arising under the earlier legislation, the Court declared:
“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.”[163] And in a later case, under the
act of 1890, the freedom of the press also being at issue, the Court
said:
“The states before the Union was formed could establish postoffices and
postroads and in doing so could bring into play the police power in the
protection of their citizens from the use of the means so provided for
purposes supposed to exert a demoralizing influence upon the people.
When the power to establish postoffices and postroads was surrendered
to the Congress it was as a complete power, and the grant carried
with it the right to exercise all the powers which made that power
effective. It is not necessary that Congress should have the power to
deal with crime and immorality within the states in order to maintain
that it possesses the power to forbid the use of the mails in aid of
the perpetration of crime and immorality.”[164]
Counsel for the petitioners in this case urged with considerable force
that there was a valid distinction between obscene or indecent matter
and lottery tickets and advertisements, but to this the Court replied:
“The argument that there is a distinction between _mala prohibita_ and
_mala in se_, and that Congress might forbid the use of the mails in
promotion of such acts as are universally regarded as _mala in se_,
including all such crimes as murder, arson, burglary, etc., and the
offence of circulating obscene books and papers, but cannot do so in
respect of other matters which it might regard as criminal or immoral,
but which it has no power itself to prohibit, involves a concession
which is fatal to the contention of the petitioners, since it would
be for Congress to determine what are within and what are without the
rule; but we think there is no room for such a distinction here, and
that it must be left to Congress in the exercise of a sound discretion
to determine in what manner it will exercise the power which it
undoubtedly possesses.”
Special exception is taken by Mr. Hannis Taylor to the doctrines of
the Rapier case. He says: “The act against the circulation of immoral
literature, which was not drawn in a paroxysm of excitement, exhausts
the entire constitutional authority over the intellectual contents of
documents passing through the mails that Congress can exercise.” And
referring to the exclusion of lottery tickets and advertisements: “This
new born heresy--created to meet a special emergency--will be utterly
repudiated by the American people the moment when the despotic and
irresponsible power over opinion with which the fiat of the Supreme
Court has armed Congress, is applied, as it surely will be, to some
subject which will arouse and quicken the public conscience.”[165]
As yet, however, there has been manifested no disposition to repeal
any of the lottery legislation. Congress has, in fact, made further
exclusions, with slight popular protest. The act of July 31, 1912,
excludes from interstate commerce, from the mails, and from importation
into the United States, “any film or other pictorial representation
or encounter of pugilists, under whatever name, which is designed to
be used or may be used for purposes of public exhibition.”[166] This,
probably, is the most advanced action yet taken by Congress.
It should be noticed, however, in concluding this review, that all
articles which Congress has thus far excluded from the mails have been
inherently different from the articles which may be transmitted, in
that they may have a harmful effect on other mail or on recipients.
Explosives, liquids, infernal machines, intoxicating liquors,--all are
in their nature dangerous to the mail or to the addressees. Obscene
literature and lottery tickets are proper subjects for denunciation
by the government and Congress may attempt to minimize their evil by
denying them postal facilities. It may be said, therefore, that all
prohibitory legislation has had the character of police regulations;
each exclusion, when assailed, has been justified on the facts of the
particular case, and the Supreme Court has never gone so far as has
a lower federal tribunal in declaring that, “Congress has exclusive
jurisdiction over the mails and may prohibit the use of the mails for
the transmission of any article. Any article, of any description,
whether harmless or not, may, therefore, be declared contraband in the
mail by act of Congress and its deposit there made a crime.”[167]
_Fraud Orders._--The denial of postal privileges when they are used
to defraud may be justified upon the same grounds as the exclusion of
obscene matter and lottery tickets; Congress has authority to make the
use of the mails subject to police regulations. But it is provided
that “the postmaster general may, upon evidence satisfactory to him
that any person or company is engaged in conducting any lottery”[168]
or fraudulent scheme, “instruct postmasters at any postoffice at which
registered letters arrive directed to any such person or company ... to
return all such registered letters to the postmaster at the office at
which they were originally mailed, with the word ‘Fraudulent’ plainly
written or stamped upon the outside thereof” and they may be returned
to the writers under such regulations as the postmaster general may
prescribe. But under this section there is no authority to open any
sealed letter.[169]
The constitutionality of these provisions has been fully established
by the Supreme Court of the United States, which has held that the
postal system is not “a necessary part of the civil government in the
same sense in which the protection of life, liberty and property, the
defense of the government against insurrection, and foreign invasion
and the administration of public justice are; but it is a public
function, assumed and established by Congress for the general welfare.”
Thus it was constitutional to exclude such fraudulent matter.
As to other objections, the Court declared that due process of law was
not denied when an executive official was given authority to control
the disposition of property; “nor do we think the law unconstitutional
because the postmaster general may seize and detain all letters, which
may include letters of a purely personal or domestic character, and
having no connection whatever with the prohibited enterprise.” The
fact that the postmaster general may not open letters not addressed
to himself makes such a provision necessary in order that the law
may be effective. Finally, said the Court, “the objection that the
postmaster general is authorized by statute to confiscate the money,
or the representative of the money, of the addressee, is based upon
the hypothesis that the money or other article of value contained in a
registered letter becomes the property of the addressee as soon as the
letter is deposited in the postoffice.” But the postmaster general, in
seizing the letter, does not confiscate it, or change title thereto;
he merely denies the use of the facilities of the postoffice. It would
be proper for Congress to empower the postmaster general, in the first
instance, to refuse to receive the letter at all, if its objectionable
character is known to him.[170]
The sole remaining question is therefore as to the conclusiveness of
administrative determinations and it appears that in the postoffice
cases the courts have exercised their powers of review further than
in any others coming up from different executive departments.[171]
The Supreme Court has summarized the rule as follows: “That where the
decision of questions of fact is committed by Congress to the judgment
and discretion of the head of a department, his decision thereon is
conclusive; and that even upon mixed questions of law and fact, or of
law alone, his action will carry with it a strong presumption of its
correctness and the courts will not ordinarily review it, although
they may have the power and will occasionally exercise the right of so
doing.”[172]
But it is necessary that the facts upon which the administrative
decision is based be not such that the application of the statute
will be a clear mistake of law. Thus, in American Magnetic School of
Healing v. McAnnulty, the postmaster general in effect made a fraud
order depend on his opinion as to the efficacy of the complainant’s
method of healing by encouraging the proper use of the mind to correct
physical ailments. The court ruled that under no construction was there
evidence sufficient to show fraud. “To authorize the interference of
the postmaster general,” said the decision, “the facts stated must,
in some aspect, be sufficient to permit him, under the statutes, to
make the order.”[173] Or, expressed differently, if it is “legally
impossible” under any interpretation of the facts, “to hold that the
complaining party was engaged in obtaining money through the mails by
false or fraudulent representations,” the courts will intervene.[174]
The general rule may, therefore, be stated as follows: Judicial review
will be granted only in those cases where it appears that the order is
without legal authority; exercise of discretion will not be reviewed
unless, upon any construction of the facts, the order is clearly
wrong, and even upon questions of law alone, it will carry a strong
presumption of correctness.
A number of proposals have been made and bills introduced in Congress
to provide for a judicial review of the postmaster general’s decisions.
Congressman Crumpacker, for instance, argued “that in all departments
of government there is no instance where substantial rights are taken
from a citizen upon confidential reports without a legal right to be
heard and to see and examine the evidence that is submitted against
him, aside from the fraud order and practice in the postoffice
department.”[175] He urged that the law should be changed and a copy
of the order served on the concern suspected of fraudulent practices.
This order should not become operative for fifteen days, except to the
extent of holding the mail undelivered in the postoffice. The aggrieved
party could file a bill in the circuit court with a bond of $500 and
a summary trial at law would be held upon the issue, which the court
should formulate upon the facts involved. Appeal would lie and pending
final action the mail would be held in the postoffice or disposed of by
order of the court. Another bill authorized a review after the orders
had been issued.
Vigorous objection to such changes in the law was made by the
postoffice authorities. A memorandum filed by the assistant attorney
general for the department[176] declared that the prime object of
the regulations was to secure summary action. “The value of the law
depends upon the promptness with which schemes to defraud may be
denied the use of the mails to further the swindle. If action is
delayed any considerable time,--as would necessarily be the case in a
judicial proceeding,--the scheme will consummate its fraud before the
interference occurs.” If Mr. Crumpacker’s bill became law, the only
effectual action would be criminal prosecution, and this is always
difficult since the victimized parties live at a distance, and it is
hard to get evidence to offer at the trial.
In practice, the memorandum explained, investigations are made by
inspectors of cases where fraudulent practices are alleged, and
reports sent to the department. If a _prima facie_ case of fraud is
established, the person or concern involved is notified and given
an opportunity to appear before the assistant attorney general for
the postoffice department; after the hearing a report is made to the
postmaster general who takes final action. But such a hearing is not
required by the statute.[177]
The codification of postal laws presented to Congress in 1908, provided
for the creation of a Commission of Postal Appeals, to consist of three
members, one of whom must be a lawyer, appointed by the President.
One of its duties would be to “pass upon the issuance of fraud orders
against persons alleged to be conducting lotteries, gift enterprises,
or schemes to defraud.” Cases would be submitted by the assistant
attorney general upon his being satisfied that the evidence was legally
sufficient to justify the order which the Commission would issue or
refuse after a hearing; provisional action, however, could be taken,
and pending final determination, the mail matter could be held in the
postoffice.[178]