about 9,000 copies were distributed, of the mails; nor did it limit in any daily through the second-class mail. In way the use of the mail facilities; it September, 1917, its publisher was merely revoked the so-called second-class directed to show cause "why the author- mailing permit; and the effect of this was ization of admission to the sec- to impose a [420] higher rate of postond-class mail (matter) should not be age on every copy of the newspaper revoked upon the following ground: thereafter mailed.

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upon the Postmaster General. Begin- | publish the book in instalments, and ning with the Act of March 3, 1865, their position was referred to the Atchap. 89, § 16, 13 Stat. at L. 507, relat- torney General. He replied: ing to obscene matter, and the Act of July 27, 1868, chap. 246, § 13, 15 Stat. at L. 196, concerning lotteries, Congress has, from time to time, forbidden the deposit in the mails of certain matter. In each instance, in addition to prescribing fine and imprisonment as a punishment for sending or attempting to send the prohibited matter through the mail, it declared that such matter should not be conveyed in the mail, nor delivered from any post office, nor by any letter carrier. By § 6 of the Act of June 8, 1872 [17 Stat. at L. 285, chap. 335] (Rev. Stat. § 396, Comp. Stat. § 582, 8 Fed. Stat. Anno. 2d ed. p. 20), the Postmaster General was empowered to "superintend the business of the Department and execute laws relative to the postal service." As a matter of administration the Postmaster General, through his subordinates, rejects matter offered for mailing, or removes matter already in the mail, which, in his judgment, is unmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether, in the individual case, the power has been illegally exercised.5 But while he may [422] thus exclude from the mail specific matter which he deems of the kind declared by Congress to be unmailable, he may not, either as a preventive measure or

I do not see that it necessarily follows that every instalment of the story thus published is obscene, because the story as a whole is declared to be so. It may be, indeed, that one or more chapters of this story are entirely unexceptionable in character. If so, the exclusion, as unmailable, of newspapers containing them, might involve serious consequences to yourself." 19 Ops. Atty. Gen. 667, 668.

as

a punishment, order that, in the future, mail tendered by a particular person, or the future issues of a particular paper, shall be refused transmission.

Again, in 1908, President Roosevelt asked the Attorney General if the law permitted him to deny the mails to an anarchist newspaper published in the Italian language, in which appeared articles advocating the murder of the police force of Patterson and the burning of the city. The Attorney General advised him that such an article constituted a seditious libel (it has since been made criminal by statute, Act of March 4, 1911, chap. 241, § 2), and that "the Postmaster General [would] be justified in excluding from the mails any issue of a periodical, otherwise entitled to the privileges of second-class mail [423] matter, which shall contain any article constituting a seditious libel and counseling such crimes as murder, arson, riot, and treason." 26 Ops. Atty. Gen. 555.

But the Attorney General was careful to point out that the law gave no authority to exclude issues of the paper which should contain no objectionable matter:

"It must be premised that the Postmaster General clearly has no power to close the mails to any class of persons, however reprehensible may be their Until recently, at least, this appears practices or however detestable their never to have been questioned, and the reputation; if the question were Postoffice Department has been author- whether the mails could be closed to all itatively advised that the power of ex- issues of a newspaper, otherwise encluding matter from the mail was lim-titled to admission, by reason of an ited to such specific matter as, upon examination, was found to be unmailable, and that the Postmaster General could not make an exclusion order operative upon future issues of a newspaper.

In 1890 Tolstoi's Kreutzer Sonata had been excluded from the mails as indecent. Certain newspapers began to

Criminal Code, §§ 211-213, 217; Act of March 3, 1917, chap. 162, § 5, 39 Stat. at L. 1069, Fed. Stat. Anno. Supp. 1918, p. 394; Espionage Act of June 15, 1917, chap. 30, title XII. 40 Stat. at L. 230, Comp. Stat. § 10.401a, Fed. Stat. Anno. Supp. 1918, p. 132.

5 Orders excluding individual issues of newspapers or periodicals because of un

article of this character in any particular issue, there could be no doubt that the question must be answered in the negative." P. 565.

If such power were possessed by the Postmaster General, he would, in view of the practical finality of his decisions, become the universal censor of publicamailable matter contained therein were sustained in Masses Pub. Co. v. Patton, L.R.A. 1918C, 79, 158 C. C. A. 250, 246 Fed. 24; Anderson v. Patten, 247 Fed. 382. In Post Pub. Co. v. Murray, 145 C. C. A. 83, 230 Fed. 773, and Brooklyn Daily Eagle v. Voorhies, 181 Fed. 579, such orders were enjoined as being unwarranted by the facts. See also Davis v. Brown, 103 Fed. 909.

tions. For a denial of the use of the|tional, to interfere with the civil right mail would be, for most of them, tanta- of using the mail for lawful purposes.7 mount to a denial of the right of circu- The Postmaster General does not lation. Congress has not granted to the claim here the power to issue an order Postmaster General power to deny the directly denying a newspaper all mail right of sending matter by mail even to service for the future. Indeed, he asserts one who has been convicted by a jury that the mail [425] is still open to the and sentenced by a court for unlawful Milwaukee Leader upon payment of use of the mail, and who has been found first, third, or fourth-class rates. He by the Postmaster General to have been contends, however, that, in regard to habitually using the mail for frauds or second-class rates, special provisions of lotteries, and is likely to do so in the law apply, under which he may deny future. It has, in order to protect the that particular rate, at his discretion. public, directed postmasters to return This contention will now be considered. to the sender mail addressed to one found by the Postmaster General to be engaged in a scheme to defraud or in a lottery enterprise. 6 But beyond this Congress has never [424] deemed it wise, if, indeed, it has considered it constitu

6 Revised Statutes, § 3929, as amended by Act September 19, 1890, chap. 908, § 2, 26 Stat. at L. 465, Comp. Stat. § 7411, 8 Fed. Stat. Anno. 2d ed. p. 138, as amended by Act March 2, 1895, chap. 191, § 3, 28 Stat. at L. 964.

By § 2 of the Act of May 16, 1918, chap. 75, 40 Stat. at L. 554, Comp. Stat. § 10,401d, Fed. Stat. Anno. Supp. 1918, p. 133, -enacted after this case had gone to judgment in the trial court,-authority was conferred upon the Postmaster General to stop, in like manner, delivery of mail to a person whom he finds "upon evidence satisfactory to him" to be using the mails in violation of the Espionage Act.

Second. The second-class mail rate is confined to newspapers and other periodicals which possess the qualifications and comply with the conditions prescribed by Congress. In the present case the Postmaster General insists and Post Roads, February 1, 1915. Exclusion of Certain Publications from the Mails, pp. 38, 39, 63d Cong. 3d Sess. See The Postal Power of Congress, by Lindsay Rogers, Johns Hopkins University Studies (1916, Series XXXIV. No. 2), pp. 158, 159. 8 In a letter to Senator Bankhead the Postmaster General said:

On

"I will state generally with regard to the action of the Department that no newspaper or periodical has been denied the privilege of the mails as such. Particular issues of certain publications have been found to contain matter that would interfere with the operation and success of the military and naval forces etc., etc. and therefore unmailable under the act in question." Cong. Rec. Aug. 22, 1917, pp. 6851-6857. See also a letter to Mr. Moon, Chairman of the House Committee on Postoffices and Post Roads, House Report No. 109, 65th Congress, 1st Session.

9 Act of March 3, 1879, chap. 180, § 14, 20 Stat. at L. 359, Comp. Stat. § 7306, 8 Fed. Stat. Anno. 2d ed. p. 98; "That the conditions upon which a publication shall be admitted to the second class are as follows:

"First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively.

7 In the Sixty-third Congress, Third Session (1915) a bill, H. R. 20,644, was introduced to deny absolutely the use of the mail to any person who, in the opinion of the Postmaster General, "is engaged or represents himself as engaged in the business of publishing any books or pamphlets of an indecent, immoral, scurrilous or libelous character." It was objected: The "bill would invest one man with the power to destroy the business of a publisher without affording any opportunity for trial by jury, according to regular court practice. The punishment which may be inflicted upon a publisher by the Postmaster General under the provisions of this bill is most severe, absolutely depriving him of the privilege of using the United States mails, even for legitimate purposes. Furthermore, this bill makes it possible for the Postmaster General to inflict what is practically a confiscatory penalty for an offense not clearly defined. Under such circumstances as these "Fourth. It must be originated and pubit is not safe to leave to the decision of lished for the dissemination of information one man, after an ex parte investigation, a of a public character, or devoted to literadecision which will involve the freedom of ture, the sciences, arts, or some special inthe press. Trial by jury and a penalty industry, and having a legitimate list of subflicted for each specified act is the only scribers; Provided, however, That nothing safeguard against an arbitrary and tyran- herein contained shall be so construed as nical power." The bill failed of passage. to admit to the second-class rate regular Hearings before Committee on Postoffice publications designed primarily for adver

"Second. It must be issued from a known office of publication.

"Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications.

nition of a newspaper laid down by the law, but the courts have jurisdiction to decide whether the reasons which an administrative officer gives for his actions agree with the requirements of the statute under which he purports to act. Gegiow v. Uhl, 239 U. S. 3, 60 L. ed. 114, 36 Sup. Ct. Rep. 2; American School v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33. The fact that material appearing in a newspaper is unmailable under wholly different provisions of law can have no effect on whether or not the publication is a newspaper. Although it violates the law, it remains a newspaper. If it is a bad newspaper, the act which makes it illegal, and not the Classification Act, provides the punishment.

that, by reason of alleged past viola- | has latitude of judgment in deciding tions of title XII. of the Espionage whether a publication meets the defiAct, two of the conditions had ceased to be fulfilled. His reasons are these: The Mail Classification Act of March 3, 1879, chap. 180, 20 Stat. at L. 359, Comp. Stat. § 7306, 8 Fed. Stat. Anno. 2d ed. p. 98, provides by § 14, that a newspaper, to be mailable at the second-class rates, "must be regularly issued at stated intervals as frequently [426] as four times a year," and that it must be "originated and published for the dissemination of information of a public character." If any issue of a paper has contained matter violative of the Espionage Act, the paper is no longer "regularly issued;" and likewise it has ceased to be a paper "published for the dissemination of information of a public character." 10 The argument is obviously unsound. The requirement that the newspaper be "regularly issued" refers, not to the propriety of the reading matter, but to the fact that publication periodically at stated intervals must be intended, and that the intention must be carried out. Similarly, the requirement that the paper be "published for the dissemination of information of a public character" refers not to the reliability of the information, or the soundness of the opinions expressed therein, but to the general character of the publication. The Classification Act does not purport to deal with the effect of, or the punishment for, crimes committed through a publication. It simply provides rates, and classifies the material which may be sent at the respective rates. The act says what shall [427] constitute a newspaper. Undoubtedly the Postmaster General tising purposes, or for free circulation, or for circulation at nominal rates."

There is, also, presented in brief and argument, a much broader claim in support of the action of the Postmaster General. It is insisted that a citizen uses the mail at second-class rates not as of right, but by virtue of a privilege or permission, the granting of which rests in the discretion of the Postmaster General. Because the payment made for this governmental service is less than it costs, it is assumed that a properly qualified person has not the right to the service so long as it is offered; and may not complain if it is denied to him. The service is called the secondclass privilege. The certificate evidencing such freedom is spoken of as a permit. But, in fact, the right to the lawful postal rates is a right independent of the discretion of the Postmaster General. The right and conditions of its existence are defined and rest wholly issue contained nonmailable matter; and when the second-class privilege has been Act of August 24, 1912, chap. 389, § 1, withdrawn under such circumstances, the 37 Stat. at L. 550, 8 Fed. Stat. Anno. 2d formal notice of withdrawal has contained ed. p. 107, applying to publications of benev- the statement that the second-class priv olent, professional, etc., societies, educa-ilege has been revoked on both the grounds tional institutions, state boards, trade stated." unions, etc.

Act of August 24, 1912, chap. 389, § 2, 37 Stat. at L. 553, 8 Fed. Stat. Anno. 2d ed. p. 109, requiring a sworn statement of the names of editors, owners, stockholders, bondholders, etc., and that all paid matter be plainly marked "advertisement."

In his report for the year ending June 30, 1918, the Postmaster General says, p. 46:

"In the administration of the law governing second-class matter it was again found necessary to revoke the second-class mail privilege of some publications for the reaLewis son that their contents consisted more or Pub. Co. v. Morgan, 229 U. S. 288, 57 L. less of matter which was nonmailable ed. 1190, 33 Sup. Ct. Rep. 867. 10 In a letter to Senator Bankhead Au- under the Espionage and other laws, and gust 22, 1917, Cong. Rec. pp. 6851-6857, which, therefore, removed them from the submitted at the argument, the Postmaster class of publications entitled to that privilege."

said:

"For many (?) years this Department The statement is repeated in the Posthas held publications not to be regularly master General's report for the year endissued' in contemplation of law when any ing June 30, 1919, p. 25.

715

upon mandatory legislation of Congress. | in the past; and it seems equally clear It is the duty of the Postmaster General that there is no basis for the contention to determine whether the conditions prescribed for any rate exist. This determination in the case of the second-class rate may involve more subjects of inquiry, some of them, perhaps, of greater difficulty, than in cases of other rates. But the function of the Postmaster General is the [428] same in all cases. In making the determination, he must, like a court or a jury, form a judgment whether certain conditions prescribed by Congress exist, on controverted facts or by applying the law. The function is a strictly judicial one, although exercised in administering an executive office. And it is not a function which either involves or permits the exercise of discretionary power. The so-called permit is mere formal notice of his judgment, but indispensable to the publisher because, without it, the local postmaster will not transmit the publication at second-class rates. The same sort of permit is necessary for the same bulk service at first, third, or fourthclass rates.12 There is nothing, in short, about the second-class rate, which furnishes the slightest basis in law for differentiating it from the other rates, so far as the discretion of the Postmaster General to grant or withhold it is concerned.

[429] that such power is to be implied. In respect to newspapers mailed by a publisher at second-class rates, there is clearly no occasion to imply this drastic power.13 For a publisher must deposit with the local postmaster, before the first mailing of every issue, a copy of the publication, which is now examined for matter subject to a higher rate, and in order to determine the portion devoted to advertising. Act of March 3, 1879, chap. 180, § 12, 20 Stat. at L. 359, Comp. Stat. § 7305, 8 Fed. Stat. Anno. 2d ed. p. 98; Act of October 3, 1917, chap. 63, § 1101, 40 Stat. at L. 327, Comp. Stat. § 7358a, Fed. Stat. Anno. Supp. 1918, p. 383. If there is illegal material in the newspaper, here is ample opportunity to discover it and remove the paper from the mail. Indeed, of the four classes of mail, it is the second alone which affords to the postal official full opportunity of ascertaining, before deposit in the mail, whether that which it is proposed to transmit is mailable matter. But even if the statutes were less clear in this respect than they seem to me, I should be led to adopt that construction because of the familiar rule that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is 'to adopt the latter." United States v. Delaware & H. Co. 213 U. S. 366, 408, 53 L. ed. 836, 849, 29 Sup. Ct. Rep. 527. For adoption of the construction urged by the Postmaster Gen

articles may be deposited in large quantities without stamps affixed, and sent at first, third, or fourth-class rates, according to their nature, by paying the postage in advance in cash in a lump sum.

Third. Such is the legislation of Congress. It clearly appears that there was no express grant of power to the Postmaster General to deny second-class mail rates to future issues of a newspaper because, in his opinion, it had systematically violated the Espionage Act 11 The orders of the Postmaster General | § 7364, Fed. Stat. Anno. Supp. 1918, p. excluding periodicals from second-class 638, and Act of April 24, 1920, identical mail, sustained in Houghton v. Payne, 194 U. S. 88, 48 L. ed. 888, 24 Sup. Ct. Rep. 590; Bates & G. Co. v. Payne, 194 U. S. 106, 48 L. ed. 894, 24 Sup. Ct. Rep. 595, and Smith v. Hitchcock, 226 U. S. 53, 57 L. ed. 119, 33 Sup. Ct. Rep. 6, as well as the fraud orders sustained in Public Clearing House v. Coyne, 194 U. S. 497, 48 L. ed. 1092, 24 Sup. Ct. Rep. 789, and that with which the court refused to interfere by certiorari in Degge v. Hitchcock, 229 U. S. 162, 57 L. ed. 1135, 33 Sup. Ct. Rep. 639, involved merely decisions of this nature. In American School v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 32, his fraud order was set aside because wholly unwarranted by the facts.

12 Under recent legislation a "permit" may be issued for either first, third, or fourth class mail. Under Act of April 28, 1904, chap. 1759, § 2, 33 Stat. at L. 440, as amended by Act of May 18, 1916, chap. 126, § 13, 39 Stat. at L. 162, Comp. Stat.

13 In the one case where drastic preventive measures were considered necessary,in the case of the foreign-language press,

Congress granted discretionary power to the Postmaster General specifically and in plain terms. By Act of October 6, 1917, chap. 106, § 19, 40 Stat. at L. 425, Comp. Stat. § 31151j, Fed. Stat. Anno. Supp. 1918, p. 866 (the Trading with the Enemy Act), it was provided that, until the end of the war, foreign-language papers should be nonmailable unless a translation should have been previously filed with the local postmaster, but that the Postmaster General might, at his discretion, grant a permit to mail without such translation. This act applied to publications sent by any class of the mails.