Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1891-09-24

that congress has an undoubted right toteg-
islate for the common good, and sfHs:
suppose, as is now an earthly poSSibiitNs~
q postal telegraph should be established; is
it true that the United States government
would be under obligation to transmit oveL-
its telegraph lines messages in reference to
all business or practices not indictable at
common law or not known to the law books
as mala in se2 Could it not refuse to trans
nit kilograms boldly relating to gambling
transactions, trading upon margins in wheat
or stock shares, purchase and sale of lot
terry tickets, or in regard to any other bust
ness which in the exercise of sound dis
cretion congress might declare to be contra
bona mores! | submit that no judicial deci-
sion has been cited, and it is my belief that
none can be found, denying to congress the
power with reference to the mails for which
we are contending."
The second main proposition of Carter's
brief, says the attorney general, is that the
lottery statute is unconstitutional because
il is law abridging the freedom of the
press. and Is therefore at variance with the
first amendment to the constitution. The
encouragement submits that no question
under the first amendment of the constitu-
ton is at issue in this case, nor can it be an
issue SO far as the Louisiana lottery is con-
cerned until the statute shall be passed for
bidding not merely the circulation of papers
carrying its advertisements through the
mails, but fOrbidding the circulation of
such newspapers through any agency
whatever. The real issue, argues
the Encouragement, is whether
the United States government
is compelled to become the agent of this
lottery company. The first amendment to
the constitution no more requires congress
to provide for carrying the literature of the
lottery company in the mails than it re-
quires congress to provide by law for print
ing such literature. Seriously is it not
plain for argument that Under this first
amendment to the constitution congress does
its whole duty by the press when it
fails to put any restriction whatever on the
printing, publication or circulation thereof
by those interested therein, through such
private agents as they are able
to commando Why. upon the theory
of the argument of the petitioners that tho
publishers of newspapers had an absolute
right to carriage in the mails and that any
discrimination against them is abridging
the freedom Of the press, then all postal
regulations by which letters are given pre-
cedence over newspapers in the mails. even in
time Of carriage and distribution, are invalid
This is certainly discriminating against
newspapers, it is abridging the freedom of
the press. 4 newspaper published to-day
Is practically valueleSs tomorrow while let
tiers may often wait q day without loss,
therefore the precedence provided for in
the regulations, and very common in the
transportation and delivery of letters over
newspapers, IS an intolerable violation
of the first amendment of the constitution
and calls for immediate redress. The brief
concludes as follows:
Finally, it seems to me that the question
petitioners counsel assumes to be in the
case is not so broad as is claimed Each
of the petitioners is seeking a discharge
from arrest under indictment or informa-
Al
matter in the mail. Whether the law by
its terms authorizes the postal authorities
to throw out matter deemed to be uumail-
able and whether it is competent for congress
to authorize such action by postofice Off
Gals, are questions not involved in any of
these cases, nor does it seem to me they are
cases in.which, If the law were found to be
involved in that particular, it would neces-
sarily be invalid under the decisions OF
this court in its entirety. My understand
ing is that the decisions, not only OF this
court but general Y, hold that where
number of acts are designated in the stat
ute as constituting crime and as to
some of such acts legislation is unauthor-
lied, the courts can not be required to SCI
lect out such acts as are within the az
thorlty OF the legislature and enforce tlfe
law as to them. rejecting it as to others. l
think no decision will be found wherein
it is held that if an act defines diff
ferent offenses and provides for their
punishment the fact that as to one of the
offenses legislation was unauthorized rem
ders the entire legislation invalid. and so If
the act defines another and prescribes
punishment for that offense, the fact that it
also, independently Of such provision, i'm
poses duties on officers which are
unauthorized by the constitution, is imma-I
terial. II l am correct in this discrims
ination, then the provision for the |
punishment of mailing unmailabls,I
matter is in no way dependent upon !
those prescribing the duties of postoffice |
officials in relation to such matters, but |
each may stand or fall independently of the |
other. 1t is proper for me to say that this |
briet is intended to be supplemental to the /
brief of Assistant = Acknowledgement |
Maurey and not a complete presentation of |
all its phases.