Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-09-28

state, with more comprehensive powers
of legislation, could pass such a law
in view of the guarantee of the free
dom of the press which may be found
in almost any state constitution.
Freely admitting that the practice OF
publishing paid matter as ordinary
reading matter is in most cases bad
Journalistic ethics and assuming for
the purposes of the argument that ur-
der all circumstances ii is for the pub
lie welfare that no contribution, for
which advertising rights are paid,
shall be published as ordinary reading
matter, nevertheless even under the
legislative powers of a sovereign state,
which are far more comprehensiV
and less delegated than those OF the
Federal Government, il is at least de-
batable whether such a provision
would not infringe the liberty of the
press.
In any aspect of the case, 1t is a
matter of police regulation, which IS
within the reserved powers of the
state. No decision of the supreme
court can be cited which lends the
slightest justification to this bald at
tempt of Congress to regulate what
shall and what shall not appear in the
newspapers of the country. The diff
ference between regulating an exer-
else of a federal power, such as con :
'veyance by the mails or interstate
commerce. and furnishing generally q
given evil without reference to its ex-
ercise of federal functions, can be il
Illustrated by the fact that while Con-
gress has the power to exclude from
the mails any newspaper which con-
tains lottery advertisements, it has nc
power except in the territories to pro-
hibit newspaper from inserting q
lottery advertisement. Tt is not the
insertion of the lottery advertisement
that the Federal Government has the
power to prohibit, but it is its car
riage in the mails. Similarly the
Federal Government has the power
under its plenary authority over for
eign commerce TO prohibit the inn
portation of immoral matter, but il
has no power except in the territories
to punish the publication of immoral
matter without reference to its car
riage either in the mails or in foreign
or interstate commerce. The line OF
dcmdrcation has always been drawn
and admits CT no dispute
In this connection. the statement
which the Postmaster General made I,
Senator Bourne, chairman of tht
Committee on Post Offices and Pos
Roads, is significant although not con-
trolling He regarded the provision
as needless" and added
1.-THE only possible service to be
rendered by such a provision
would be the Identification of the
owners and writer's of newspapers
and periodicals. i'm order to hold
them for contractual obligations
or for libelous printed matter.
both of which would be matters
under the jurisdiction of the State
and not of federal authority
This disclaimer of novel power by q
federal official is as unusual as it is
gratifying 1t is almost the only in
stance that / can recall where a fed
eral official declined to accept an ex-
tension of executive power which Con
gress proposed to thrust upon him
While the Postmaster Generals opin.
| ion is not controlling. yet his admis'
sion that the legislation is not re
| quired for the due regulation of thu
mails is of Importance.
| To the first question, therefore, thu
answer can be unhesitatingly givel
| that the attempt to dictate to news
| paper editors and publishers wha
shall go in their columns. withou
reference to the carriage of such pub
| LEGATIONS in the mails or in interstate
| commerce, is unconstitutional. Will
! the Federal courts have always beel
| indisposed to declare demonstrations
! any act of Congress, yet | am conf
dent that any United States cour
would with little hesitation declar
| this section of the law null and void.
| 2. The second question. however
does not admit of so easy an answe,
1t is true that the law literally re
| Quires the newspaper editor or pub
Usher twice a year to file statement
with the Postmaster General as to tn
ownership of the publication and it
circulation. 1t does not, however, at
tempt to punish the failure to do $
but simply provides that any pubblica
ton which fails to conform to thes
| provisions" shall be denied the priv
leges of the mails"
Reading these two sections togethe
and having in mind the fact that
! court will whenever possible plac
| such construction upon a statute a
| will reasonably save its constitution
| ality, | am of opinion that cour
| would construe this portion of the LAY
as simply providing that no publlca
ton shall be carried in the mails IN
less its editor or publisher shall frs
conform to the provisions above citef
Is this provision of the law cohstltu
| tional?
The power of the United States owe
the mails has been the subject OF con
| struction in the following cases:
Elk parte Jackson, 96 u. s., 727.
In re Rapier, 143 y. s.. 110s
Homer VS.. u. s., i'd, 20l
Public Clearing House VS.. Coyne, 10
U. S., 497.
/ American School of Magnetic Heal
ing VS.. MeAnnulty, 1877 u. s., "a.
In each the power of the Fedora
Government to designate general,
| I'D in, ~.