Brownsville herald. [volume] (Brownsville, Tex.) 1910-current, 1912-09-26

judiciary. After three arguments.
he Court held that as the merchan-
iise under consideration was lottery
literature and that as it was immor-
II, Congress had a right to deny to
/ the facilities Of either the mail or
interstate commerce. But the
Court, TO prevent any undue extern
sion of the doctrine thus announced,
went on to disclaim any power on
the part of Congress to
arbitrarily exclude from COM
merce among the States any
article, commodity or thing of
whatever kind or nature or how
ever useful or valuable, which it
may choose no matter with what
motive to declare shall not be car
ried from one State to another"
it declined to express an opin-
ion as to how far the judiciary could
the motive with which a
delegated federal power was exercis-
ed, the Court added this pointed ad-
monition:
I'VE may, however, repeat in
this connection what the Court
has heretofore said, that the pow
er of Congress to regulate COM
merce among the States, although
plenary, cannot be deemed abb
trary since it is subject to such
limitations or restrictions as are
prescribed by the Constitution.
This power, therefore, may not be
exercised so as to infringe rights
secured or protected by that instru-
ment. 1t would not be difficult to
imagine legislation that would be
Justly liable to such an objection
as that stated and be hostile to
the objects for the accomplish
vested with the general power to
regulate commerce among the sew
eral States. If what is
done by Congress is manifestly in
excess Of the powers granted to
it, then upon the Courts will rest
the duty of adjudging that its &C
tion is neither legal nor binding
upon the people,"
In Public Clearing House VS.. Coyne
(194 U. S., 497), an Act which vest
ed in the Postmaster-General the
power to determine whether the mail
of a business concern was fraudulent,
was sustained, but in the later case
of American School of Magnetic Heal
ing VS.. McAnnulty (1S7 U. s., 94)
it was held that the Postmaster-Gen-
eral could not arbitrarily exclude
mail matter but that he could only
do so on the due ascertainment of
facts which were within the meaning
Of the Act Of Congress excluding
fraudulent matter from the mails.
1t must be emphasized, however,
that in all the cases above referred
to, the power Of exclusion was based
upon grounds of public morality, and
while it is not easy to draw a logi-
cal distinction between the power to
exclude immoral or fraudulent ma
ter and the power to exclude matter
that is otherwise prejudicial to the
public welfare, yet this distinction
has been recognized by the Supreme
Court.
The doctrine of the cases above re-
ferred to goes no further than Con-
gress in its ample power to regulate
both the mails and the channels OF
interstate trade, can exclude from
either anything which it car rea-
sonably regard as immoral and pre-
judicial to the public welfare. 1t can
exclude lottery matter because of
its assumed demoralizing influence.
1t can exclude indecent matter be-
cause it is in~trinsically immoral by
any standard of morality. 1t can gen
orally exclude dynamite because its
carriage without due precautions is
a menace to property.
The delicate question therefore re-
mains how far this power to deter
mine what is prejudicial to the pub
lie welfare can justify a refusal to
carry through the mails or through
interstate commerce a thing not be-
cause it is intrinsically dangerous
immoral but because it is not con-
Quoted by methods which have no di-
rect relation either to the mails or
interstate commerce. 1t cannot mat
ter in any practical sense to the
Post Office Department whether 1t
carries a newspaper with the name
of the publisher upon it or not;
neither can it matter in regulating
interstate trade whether the newspa-
pers which may be shipped by ex-
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