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

/ or not; neither can il matter in regu-
/ lating interstate trade whether the
| newspapers which may be shipped by
express contain a sworn statement OF
their circulation. These have no
practical bearing upon the carriage o.
| the mails or interstate commerce.
| Can it be, therefore, that under the
pretense of regulating the mails or in
terstate commerce, the Federal Gov
eminent can indirectly exercise con-
troll over matters which otherwise are
beyond it's constitutional power? If
so, our whole system of a dual
sovereignty is likely to break down
for, with the development of steam
and electricity. the conceded federal
powers over interstate commerce, for
eign commerce. the mails. currency,
money, etc, etc, are so intimately in
terwoven with the conduct of life that
the Federal Government can attain
almost any object by merely denying
the exercise of vital federal rights to
any corporation or individual, which
fails to conform to the views of Con-
gress as to matters beyond the juris
diction of the federal government.
1t must. be conceded that the judi
ciary in recent years has exercised
with increasing reluctance its power
to question an unconstitutional motive
which may induce Congress to pass
some law otherwise within it's power.
In the leading case of McCulloch y.
Maryland, the great Chief Justice
Marshall left no doubt about the duty
of the judiciary. where conceded fed
eral powers are sought to be perverted
for unconstitutional purposes. He
said:
"Should Congress, under the
pretext of exercising it's pow
ers, pass laws for the accom-
pIishment of objects not en-
trusted to the Government, it
would become the painful duty
of this tribunal, to
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
Legitimate purpose and to accomplish
an unlawful result, was clearly recog
nized.
care must Ue TAKEN To
between the class of cases where the
exercise of a federal power has an in
cidental. unintentional but neyerthe-
less destructive effect upon some right
of the people otherwise reserved. and
the other class of cases where the ex-
ercise of federal power has been eXer-
cised not for any object within the
Constitution but for the palpable, de-
liberate and in some cases avowed
purpose of obtaining some end that is
not within the scope of federal power.
Undoubtedly the supreme court in
some of its recent cases has gone far
to sustain federal legislation, such as
the Oleomargarfne Taxing Law, even
though the purpose of the Act was
obviously not to raise revenue but in
directly to accomplish some object be-
yond the scope of federal power: but
the true doctrine of the court, as re-
peatediy announced, is we'll stated by
Mr.. Justice Harlan, in the case of
Mugler V. Kansas Q23 U. s., 623),
where he said:
1.-THE courts are not bound by
mere forms nor are they to be
misled by mere pretenses. They
are at liberty-indeed are under
substance of things whenever they
enter upon the inquiry whether
the legislature has transcribed the
limits of its authority
This the supreme court has repeat
eddy stated in multiplying state statutes
which in substance violated the Fed
eral Constitution, although in form
purporting to carry out some purpose
admittedly within the power of the
state. There is no logical reason
Why the Federal judiciary should not
apply the same rule to a Federal
statute and. if so, the court must re-
affirm the doctrine of John Marshall
that it will pronounce null and void
the exercise of a federal power OBJ
viously designed not to carry out some
object that is delegated to the Federal
Government but some object that IS
beyond its power
The present question pointedly
raises this question. Looking beyond
the form and to the substance, it is
obvious that Congress by this rider to
the Post Office Appropriation Bill
sought to regulate journalism. The
carriage in the mails is a mere pre-
tense. 1t cannot and does not matter
IL tlit FeutIdl Government NDeInbT
| the newspapers which it carries con-
tain sworn statements of circulation
, and the names of the publisher. In
either event they weigh neither more
nor less and if in the collection Of
postalNdu it is necessary for the Post
Office Department to know the re-
sponsible owner of a publication or
what its circulation is, there are other
and more proper methods for making
such inquiry. .ts 81
So far as the Federal Government IS
concerned, there is no reason why a
, newspaper should be obliged to make
public the. Details of its business office.
II is therefore obvious that this Act is
intended to regulate Journalism and
not the mails. Its obvious purpose is
to acquaint the public with the own
ership of every publication and the
extent of its circulation, and while
these may be desirable objects, their
attainment was clearly not delegated
either expressly or by necessary inn
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