Tulsa daily world. [volume] (Tulsa, Indian Territory [Okla.]) 1905-1919, 1912-09-26
Attacks THE NEW
NEWSPAPER LAW
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cision was reached In that case, the
writer Of this opinion, as assistant
attorney general, argued as a part OF
| his contention that as the power OF
/ the federal government over interstate
\ commerce was pIenary, II had the
power to determine what should and
what should not be carried in the
channels Of interstate commerce and
| that when ii had determined that the
| interstate carriage OF given merchan-
disc was unconstitutional, such dec
! laration was final and could not be
reviewed by the judiciary. After three
arguments, the court held that as the
merchandise under consideration was
| lottery literature and that as 1t was
| immoral, congress had right TO deny
| to ii the facilities OF either the mail
or of interstate commerce. But the
court, to prevent any undue extension
of the doctrine thus announced, went
on 10 dlsclaim any power. on the part
of congress to arbitrarily exclude
| from commerce among the state any
article, commodity or thing or what
ever kind or nature or however use
full or valuable, which it may choose
No matter with what motive to declare
should not be carried from one state to
another"
While II declined to express an op!n-
ion as to how far the judiciary could
review the motive with which dele
the court added this pointed admoni-
ton:
I'VE may, however, repeat in this
connection what the court has here
tofore said, that the power of congress
TO regulate commerce among the
states, although plenary, cannot be
deemed arbitrary since ii is subject to
such limitations or restrictions as are
prescribed by the constitution. This
power, therefore, may not be eXer-
cised so as to infringe rights secured
or protected by that instrument. 1t
would not be difficult to imagine leg
islaton that would be justly liable to
such an objection as that stated and
be hostile 10 the objects for the ac-
complishment Of which congress was
invested with the general power to
regulate commerce among the several
sstate If what is done by con-
gress is manifestly in excess of the
powers granted to it. then upon the
courts viii rest the duty Of adjudging
that its action is neither legal nor
binding upon the people"
In Public Clearing House VS.. Coyne
194 u. s., 497), an act which vested
in the postmaster general the power
to determine whether the mail Of
business concern was fraudulent, was
sustained but in the later case Of
American School Of Magnetic Healing
vs.. McAnnulty GS7 4. s., 94) il was
held that the postmaster general could
not arbitrarily exclude mail matter,
but that he could do so only on the
due ascertainment OF facts which were
within the meaning OF the act Of con
gress excluding fraudulent matter
from the mails.
II must be emphasized, however,
that I'm an the cases above referred to-
the power Of exclusion was based
upon grounds Of public morality, and
while 1t is not easy 10 draw a logical
distinction between the power TO ex-
clude immoral or fraudulent matter,
and the power to exclude matter that
Is otherwise prejudiclai 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 1t can reason
ably regard as immoral and prejudi-
cial to the public welfare. 1t can ex-
clude indecent matter because It Is in
trinsically immoral by any standard
Of morality. 1t can generally exclude
dynamite because its carriage without
due precautions is a menace to prop
erty.
The delicate question. therefore,
remains how far this power to deter
a