Tulsa daily world. [volume] (Tulsa, Indian Territory [Okla.]) 1905-1919, 1912-09-26

welfare can justify refusal 10 cnrry
through tho mails or through inter-
state commerce q thing not because II
rs intnnslcally dangerous or immoral
but because Il H. not conducted 10y
methods which have no direct rela-
lion either 90 the mails or Interstate
commerce. II cannot matter IN any
practical sense TO the postoffioe de-
paument whether II carries q news
paper whic hmay be shipped hy ex-
press contains sworn statement Of
their circulation. These have no
practical bearing upon the carriage Of
the mails or interstate commerce,
Can Il be, therefore, that under the
pretense ~ regulating the mails or
Interstate commerce, the federal gov
ernment can indirectly exercise con-
troll over matters which otherwise arc
beyond It's constitutional power2 II
so, our whole system OF dual soyer-
o.gnty Is likely 10 break down for
with the development OF steam and
electricity the conceded federal pow
ers over interstate commerce, foreign
commerce, the mails, currency, money
etc. etc, are ~ intimately interviewer
with the conduct OF life that the fed
eral government can attain almost any
object boy merely denying tho exercise
OF vital federal rights 60 any corpora
ton or individual. which fails to con
form 10 the views of congress as TO
matters beyond the jurisdiction OF the
federal government.
II must be conceded that the judi
clary In recent years has exercised
with increasing reluctance It's power to
question an unconstitutional motive
which may induce congress to pass
nlme law otherwise within its power.
In the leading case OF McCulloch vs..
Maryland, the great CHIEF Justice Mar
shall left no doubt about the duty OF
the judiciary where conceded federal
powers are sought to be perverted for
unconstitutlonal purposes. He said
Should congress. under the preteNt
~ exercising it's powers, pass laws for
the accomplishment OF objects not
entrusted TO the government, II would
become the painful duty Of this tr-
bunal 10 say that such an act
was not the law OF the land"
TO Marshall, as to the trainers OF
the constitution, the possibility OF the
exercise Of an undoubted power for an
illcgitimate purpose and 10 accomplish
an unlawful result, was clearly rocoR-
nized
Care must be taken 10 distinguish
between the class Of cases where the
exercise of federal power has an
incidental, unintentlonal but never
theless destructive effect upon some
right pf the people otherwise reserved,
and the other class of cases where the
exercise Of federal power has been
exercised not for any object within the
constitution, but for the palpable, de-
hberate and I'm some cases aNoWei
purpose Of obtaining some end that is
rot within the scope OF federal power.
Undoubtedly the supreme court In
some OF its recent eases has gone far
to sustain federal legislation, such as
though the purpose or the act was OBJ
viously not TO raise revenue but indi-
rectly TO accomplish some object be-
yond the scope Of federal power; but
the true doctrine Of the court, as re-
peatcdly announced, liz well stated by
Mr.. Justice Harlan, In the case OF
Mugier vs. Kansas G23 L. s., G23),
where he said:
The courts are not bound by mere
forms nor are they to be mis.ed by
mere pretenses. They are at liberty
indeed are under the solemn duty
10 look upon the substance Of things
whenever they look upon the inquiry
whether the legislature has transcend
ed the limits of its authority"
This the supreme court has repeat
edly stated in nulifying state statutes,
which in substance violated the fed
oral constitution, although IN form
purportng TO carry out some purpose
admittedly within the power Of tho
state There is no logical reason why
the federal judiciary should not apply
lllt same RUE 10 Il ltN'l al oAhNhNt anu
if so, the court must reatfirm the
doctrine of John Marshall, that it
will pronounce nun and void the eXer-
else of q federal power obviously de-
signed not to carry out some object
that is delegated to the federal gov
ernment but some object that is be-
yond its power.
The present question pointedy
raises this question. Looking beyond
the form and to the substance, 1t is
obvious that congress by this rider to
the postofflce appropriation bill,
sought to regulate journalism. The
carriage in the mails is n mere pre-
tense. II cannot and does not matter
to the federal government whether
the newspapers which it carries con-
tain sworn statements Of circulation,
-