Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1912-09-25

else OF a federal power, such as con-
veyance by the mails or interstate /
and Furnishing generally a .
exercise of federal functions, can be |
by the fact that while con- |
gress has the power to exclude from !
the mails any newspaper which con- |
tains lottery advertisements, it has no
power except in the territories to |
prohibit newspaper from inserting a
lottery advertisement. 1t is not the |
insertion of the lottery advertisement |
that the federal government has the
power to prohibit, but it is its car
rage in the mails. Similarly the fed
eral government has the power under
It's plenary authority over foreign
commerce to prohibit the importation
of immoral matter, but it has no pow
er except in the territories to punish
the publication of immoral matter
without reference to its carriage
either in the mails or in foreign or
interstate commerce. The line of de-
marcation has always been drawn and
admits of no dispute.
In this connection, the statement
which the postmaster general made
u Senator Bourne, chairman of the
committee on postoffices and post
roads, is significant although not con-
trolling. He regarded the provision
as needless" and added:
The only possible service to
be rendered by such a provision
would be the identification Of the
owners and writer's of newspa-
pers and periodicals, in order to
hold them for contractual obi
cations 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
a federal official is as unusual as 1t is
gratifying. 1t is almost the only in
stance that l can recall where a fed
eral official declined to accept an ex-
tension of executive power which con.
sress 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 the
mails is of Importance.
| To the first question, therefore, the
answer can be unhesitatingly given
/ that the attempt to dictate to news.
paper editors and publishers what
shall go in their columns, without ref.
( erence to the carriage of such publ
cations in the mails or in interstate
commerce, is unconstitutional. Whild
the federal courts have always been
/ indisposed to declare unconstitution-
al any act of congress, yet l am con-
/ fident that any United States court
would with little hesitation declare
/ this section of the law null and void.
/ 2. The second question, however,
does not admit of so easy an answer.
/ 1t is true that the law literally re-
quires the newspaper editor or pub
/ Usher twice a year to file statements
with the postmaster general as to the
ownership of the publication and its
circulation. 1t does not, however,
attempt to punish the failure TO do so
/ but simply provides that any publica-
ton which fails to conform to these
provisions Shall be denied the priv.
leges of the mails"
/ Reading these two sections together
and having in mind the fact that a
court will whenever possible place
such construction upon a statute as
will reasonably save its constitution,
ality, ! am of opinion that a court
would construe this portion of the law
as simply providing that no publica
ton shall be carried In the mails un,
less it's editor or publisher shall first
conform to the provisions above cited
Is this provision of the law constl
tutional?
The power of the sUnited States
over the mails has been the subject
cases:
Elk parte Jackson, SO U. s.. 727.
In re Rapier, 143 U. S, 10.
Horner vs.. L. s., i'd, 207.
Public Clearing House VS.. Coyne,
1874 U. S, 497.
American School OF Magnetic
Healing vs. McAnnulty. 1877
j In each the power of the fedora
government TO designate generally
" hat shall be carried in the mail anC
what shall be excluded, was affirmed.
J. In ex parte Jackson, fedora
statute which forbade the carriage b.
mail of lottery matter was under con
sideration. The supreme court said
, THE power possessed by con-
gress embraces the regulation OF
= the entire postal system OF the
country. The right to designate
what shall be carried necessarily
= involves the right to determine
I what shall be excluded"
Justice Field, who spoke for tn
/ court, however. went on TO say:
, Nor can any regulations be en-
; forced against the transportation
: Of printed matter In the mail,
: which is open to examination, so
? as TO interfere in any manner
t with the freedom of the press.
3 Liberty of circulating is as en-
I'll