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


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
publication which fails to conform to
these provisions shall be denied the
privileges OF the mails"
Reading these two sections togeth-
er and having in mind the fact that
"a Court will whenever possible place
such construction upon a statute as
will reasonably save its constitution
atty l am of the opinion that a court
would construe this portion of the
law as simply providing that no pub
LEGATION shall be carried in the mails
unless it's editor or publisher shall
first conform 10 the provisions above
cited. Is this provision Of the law
constitutional?
The power OF the United States
over the mails has been the subject
of construction in the following
cases:
lex ?arte Jackson, sc U. S.
727.
In re Rapier, 143 U. s., 10.
Public Clearing House VS..
Coyne, 1914 U. S., 497.
American School of Magnet
ic Healing VS.. McAnnulty,
1877 U. s., "a.
In each the power of the Federal
Government to designate generally
what shall be carried in the mail
and what shall be excluded, was af-
firmed.
In ex parte Jackson, a federal sta
tute which forbade the carriage by
mail of lottery matter was under
consideration. The Supreme Court
said:
1.-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
what shall be excluded"
Mr.. Justice Field, who spoke for
the 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 manne with
the freedom of the press. Liberty
of circulating is as essential to
that freedom as liberty of publish
ing; indeed without circulation
the publication would be of little
value"
The opinion of the Court, which
is too long for quotation, restricted
its conclusion to the right Of Con-
gress to exclude immoral matter
from the mails.
The question again came under
consideration in re Rapier, 143 U. s..
decided in 1891, and the question
was very learnedly argued by James
&c. Carter, then the leader of the bar
The Court, in the opinion of CHIEF
Justice Fuller, said in substance that
while it is true that the legitimate
end of the federal power over posi-
roads was Ito furnish mail facili.
ties to the people Of the United
States, it is also true that mail fac.
~ilities are not required to be fur
nished for every purpose" The
Chief Justice then shows that prior
to the Federal Constitution the
States could determine in the exer-
else Of the police power what mat
ter was so d~emoralizing in its in.
fluence upon the people as to justi-
fly its exclusion from the mails. The
Court refused to recognize a distinc,
ton, that was attempted to be made
in argument, between things that
were bad only because they were
prohibited and things that were in
trinsically bad, in other words be-
tween the mala prohibita and the
mala in Sc. They held on the con-
trary that it must be left to Congress
in the exercise of a sound discretion
to determine in what name it
will exercise the power (of exclusion)
it undoubtedly possesses"
If this opinion were the last ex-
preston Of the Supreme Court, il
might be fairly argued that that
court left it to the discretion of Con-
gress to determine what was so pre-
judicial to the public welfare as to
Justify its exclusion from the mails,
and that the Judiciary could not re-
view such discretion. If that were
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