consistently with rights reserved to the people, of far greater importance than the transportation of the mail." In other words, the postal power, like all its other powers, is subject to the limitations of the Bill of Rights. Burton v. United States, 202 U. S. 344, 371, 50 L. ed. 1057, 1067, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362. Compare Adair v. United States, 208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. eral would raise not only a grave question, but a "succession of constitutional doubts," as suggested in Harriman v. Interstate Commerce Commission, 211 U. S. 407, 422, 53 L. ed. 253, 264, 29 Sup. Ct. Rep. 115. It would in practice seriously abridge the freedom [430] of the press. Would it not also violate the 1st Amendment? It would in practice deprive many publishers of their property without due process of law. Would it not also violate the 5th Amend- 764. Congress may not, through its ment? It would in practice subject postal police power, put limitations publishers to punishment without a upon the freedom of the press which, if hearing by any court. Would it not directly attempted, would be unconstitualso violate article 3 of the Constitu- tional. [431] This court also stated in tion? It would in practice subject pub- Ex parte Jackson, that "liberty of circulishers to severe punishment for an in- lating is as essential to that freedom as famous crime without trial by jury. liberty of publishing; indeed, without Would it not also violate the 6th the circulation, the publication would be Amendment? And the punishment in- of little value." It is argued that alflicted-denial of a civil right-is cer- though a newspaper is barred from the tainly unusual. Would it also violate second-class mail, liberty of circulation the 8th Amendment? If the construction urged by the Postmaster General is rejected, these questions need not be answered; but it seems appropriate to indicate why the doubts raised by them are grave. is not denied; because the first and third class mail and also other means of transportation are left open to a publisher. Constitutional rights should not be frittered away by arguments so technical and unsubstantial. "The Constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name." Cummings v. Missouri, 4 Wall. 277, 325, 18 L. ed. 356, 363. The government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of the service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open. But to carry newspapers generally at a sixth of the cost of the service, and to deny that service to one paper of the same general character, because to the Postmaster General views therein expressed in the past seem illegal, would prove an effective censorship and abridge seriously freedom of expression.1 (a) The power to police the mails is an incident of the postal power. Congress may, of course, exclude from the mails matter which is dangerous, or which carries on its face immoral expressions, threats, or libels. It may go further, and through its power of exclusion exercise, within limits, general police power over the material which it carries, even though its regulations are quite unrelated to the business of transporting mails. Re Rapier, 143 U. S. 110, 36 L. ed. 93, 12 Sup. Ct. Rep. 374; Lewis Pub. Co. v. Morgan, 229 U. S. 288, 57 L. ed. 1190, 33 Sup. Ct. Rep. 867. As stated in Ex parte Jackson, 96 U. S. 727, 732, 24 L. ed. 877, 879: "The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them 14 See "Freedom of Speech" by Zechariah | view, and operate as a taking of property Chafee, Jr., pp. 105-109, 233, 234; also p. without due process of law, in violation 199: "A newspaper editor fears being put of the 14th Amendment. Ex parte Young, out of business by the administrative de- 209 U. S. 123, 147, 52 L. ed. 714, 723, 13 nial of the second-class mailing privilege L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 much more than the prospect of prison, Ann. Cas. 764; Missouri P. R. Co. v. subject to a jury trial." It has been uni-Tucker, 230 U. S. 340, 349, 57 L. ed. 1507, formly held that a statute prescribing simi- 33 Sup. Ct. Rep. 961; Wadley Southern R. lar penalties for failure to observe its pro- Co. v. Georgia, 235 U. S. 651, 662, 59 L. visions, or the order of a public service ed. 405, 411. P.U.R.1915A, 106, 35 Sup. Ct. commission, although made after full hear-Rep. 214; Oklahoma Operating Co. v. Love, ing, is a deterrent so potent as to amount 252 U. S. 331, 337, 64 L. ed. 596, 599, 40 to a denial of the right to a judicial re: Sup. Ct. Rep. 338. 14 How dangerous to liberty of the press would be the [432] holding that the sec ond-class mail service is merely a privilege, which Congress may deny to those whose views it deems to be against public policy, is shown by the following contention, made in 1912, by the Solicitor General, in the Lewis Case (see Brief, pp. 46, 47): "A possible abuse of power is no argument against its existence, but we may as well observe that a denial of the mails to a paper because of its ownership or the views held by its owners may well be illegal as having no relation to the thing carried in the mails unless the views are expressed in the paper; but if such views are expressed in the paper, Congress can doubtless exclude them, just as Congress could now exclude all papers advocating lotteries, prohibition, anarchy, or a protective tariff if a majority of Congress thought such views against public policy." (Italics in the original.) 15 (b) The right which Congress has given to all properly circumstanced persons to distribute newspapers and periodicals through the mails is a substantial right. Hoover v. McChesney, 81 Fed. 472; Payne v. United States, 20 App. D. C. 581, 192 U. S. 602, 48 L. ed. 583, 24 Sup. Ct. Rep. 849. It is of the same nature as, indeed, it is a part of, the right to carry on business which this court has been jealous to protect against what it has considered arbitrary deprivations. Adair v. United States 208 U. S. 161, 52 L. ed. 436, 2 Sup. Ct. Rep. 277, 13 Ann. Cas. 764 Coppage v. Kansas, 236 U. S. 1 59 L. ed. 441, L.R.A.1915C, 960, 3 Sup. Ct. Rep. 240; Adams v. Tanner, 244 U. S. 590, 61 L. ed. 1336, L.R.A. 1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973; Allgeyer v. Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427. A law by which certain pub lishers were unreasonably or arbitrarily denied the low rates would deprive them of liberty or property without due process of law; and it [433] would likewise deny them equal protection of the laws. Compare Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 52, 53, 56 L. ed. 327, 347, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. The court might hold that a statute which conferred upon the Postmaster General the power to do this, because of supposed past infractions of law, was unreasonable and arbitrary; particularly in respect to second-class mail, which affords ample opportunity for preventing the transmission of unmailable matter; and hence obnoxious to the 5th Amendment. The contention that, because the rates are noncompensatory, use of the secondclass mail is not a right, but a privilege, which may be granted or withheld at the pleasure of Congress, rests upon an entire misconception, when applied to individual members of a class. The fact that it is largely gratuitous makes clearer its position as a right; for it is paid for by taxation.16 (c) The order revoking the entry of the Milwaukee Leader to second-class mail was clearly a punitive, not a preventive, measure; as all classes of mail except the second were, as the Postmaster General states, left open to it, provided it had sufficient financial resources. Of [434] the three left available the third class, being for "miscellaneous printed matter," was an appropriate one for distributing newspapers, and was the cheapest. But the additional cost to the publisher involved in distributing daily 9,000 copies, by the third-class mail, would be a very serious one. The actual and intended effect of of the United States (1911), p. 656. The justification for this noncompensatory service lies in the belief that education in its broad sense-intellectual activity fostered through the dissemination of information and of ideas-is essential to the life of a 15 It was perhaps, in reference to this, contention, that the court said, in closing its opinion in that case (229 U. S. p. 316): "We do not wish even by the remotest implication to be regarded as assenting to the broad contentions concerning the existence of arbitrary power through the classifica-free, self-governing, and striving people. tion of the mails, or by way of condition embodied in the proposition of the government which we have previously stated." 16 This is true, although the deficit is covered directly, in large part, by profits on first-class mail. The net cost of this service to the government was, before the World War, equal to one tenth of its expenditures for all other than postal purposes. Compare Lewis Pub. Co. v. Morgan, 229 U. S. 288, 304, 57 L. ed. 1190, 1199, 33 Sup. Ct. Rep. 867, with 34 Statistical Abstract This noncompensatory service is comparable to many rendered by the government; e. g., to the facilitation of communication and commerce by port, canal, passport, or consular services, for all of which only small charges, or none, are made. That a government furnishing public service must be judged by ordinary standards of public callings, see Chafee, on Freedom of Speech, p. 109, citing H. J. Laski in 31 Harvard L. Rev. 186, and Laski's Authority in the Modern State, p. 378. might again, as in Weems v. United States, 217 U. S. 349, 381, 54 L. ed. 793, 804, 30 Sup. Ct. Rep. 544, make clear the "difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice." The suggestion is made that if a new application for entry to second-class mail had been made, the publishers might have been granted a certificate. It is no bar to proceedings to set aside an illegal sentence, that an application [436] to the Executive for clemency might have resulted in a pardon. the order was merely to impose a very legal history. Every fine imposed by a heavy fine, possibly $150 a day, for sup- court is definite in amount.18 Every posed transgression in the past. But fine prescribed by Congress is limited the trial and punishment of crimes is a in amount. Statutes frequently defunction which the Constitution, article clare that each day's continuation of an 3, § 2, el. 3, intrusts to the judiciary.1 17 offense shall constitute a new crime. I am not aware that any other civil ad- But here a fine imposed for a past ofministrative officer has assumed, in any fense is made to grow indefinitely each country in which the common law pre- day,-perhaps throughout the life of vails, the power to inflict upon a cit- the publication. Already, having grown izen severe punishment for an infamous at the rate of say $150 a day, it may crime. Possibly the court would hold aggregate, if the circulation has been that Congress could not, in view of maintained, about $180,000 for the three article 3 of the Constitution, confer years and four months since the order upon the Postmaster General, as a mere was entered; and its growth continues. incident in the administration of his It was assumed in Waters-Pierce Oil Co. Department, authority to issue an order v. Texas, 212 U. S. 86, 111, 53 L. ed. 417, which could operate only as a punish- 430, 29 Sup. Ct. Rep. 220, that an excesment. See Wong Wing v. United sive fine, even if definite, would violate States, 163 U. S. 228, 235-237, 41 L. ed. the 8th Amendment. Possibly the 140, 142, 143, 16 Sup. Ct. Rep. 977. court, applying the 8th Amendment, (d) The 6th Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, and that he shall be confronted with the witnesses against him. It is only in the case of petty offenses that the jury may be dispensed with. Schick v. United States, 195 J. S. 65, 68, 49 L. ed. 99, 101, 24 Sup. Ct. Rep. 826, 1 Ann. Cas. 585. What is in effect a very heavy fine has been imposed by the Postmaster General. It has been imposed because he finds that the publisher has com- In conclusion I say again--because it mitted the crime of violating the cannot be stressed too strongly-that Espionage Act. And that finding is the power here claimed is not a war based in part upon "representations and power. There is no question of its complaints from sundry good and loyal necessity to protect the country from citizens" [485] with whom the publisher insidious domestic foes. To that end was not confronted. It may be that the Congress conferred upon the Postmascourt would hold, in view of article 6 ter General the enormous power conin our Bill of Rights, that Congress is tained in the Espionage Act, of entirely without power to confer upon the Post- excluding from the mails any letter, master General, or even upon a court, picture, or publication which containe except upon the verdict of a jury, and matter violating the broad terms of that upon confronting the accused with the act. But it did not confer-and the witnesses against him, authority to in- Bostmaster General concedes that it did flict indirectly such a substantial pun- not confer-the vague and absolute ishment as this. See Callan v. Wilson, authority practically to deny circulation 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. to any publication which, in his opinion, Rep. 1301; Thompson v. Utah, 170 U. S. is likely to violate in the future any 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. postal law. The grant of that power is (e) The punishment inflicted is not construed into a postal-rate statute only unusual in character; it is, so far passed forty years ago, which has never as known, unprecedented in American before been suspected of containing 17 Compare Harbor Comrs. v. Excelsior || 1, 25 L.R.A. 110, 45 Am. St. Rep. 261, 37 Redwood Co. 88 Cal. 491, 22 Am. St. Rep. Pac. 135. 321, 26 Pac. 375; Cleveland, C. C. & St. L. R. Co. v. People, 212 Ill. 638, 72 N. E. 725; Langenberg v. Decker, 131 Ind. 471, 16 L.R.A. 108, 31 N. E. 190; Re Sims, 54 Kan. 18 Compare Morris v. State, 1 Blackf. 37, 38; State v. Bennett, 20 N. C. 170 (4 Dev. & B. L. 43, 50); Easterling v. State, 35 Miss. 210. such implications. I cannot believe | ried because he thought it likely or certhat, in establishing postal classifica- tain that it would contain treasonable tions in 1879, Congress intended to confer upon the Postmaster General authority to issue the order here complained of. If, under the Constitution, administrative officers may, as a mere incident of the peace-time administration of their departments, be vested with the power to issue such orders as this, there is little of substance in our Bill of Rights, and in every extension of governmental functions lurks a new danger to civil liberty. Mr. Justice Holmes, dissenting: I have had the advantage of reading the judgment of my brother Brandeis in this case, and I agree in substance with his view. At first it seemed to me that if a publisher should announce in terms that he proposed to print treason, and should demand a second-class rate, it must be that the Postmaster General would have authority [437] to refuse it. But reflection has convinced me that I was wrong. The question of the rate has nothing to do with the question whether the matter is mailable, and I am satisfied that the Postmaster cannot determine in advance that a certain newspaper is going to be nonmailable, and on that ground deny to it not the use of the mails, but the rate of postage that the statute says shall be charged. Of course, the Postmaster may deny or revoke the second-class rate to a or obscene talk. The United States may give up the Postoffice when it sees fit; but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues; and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man. There is no pretense that it has done so. Therefore I do not consider the limits of its constitutional power. To refuse the second-class rate to a newspaper is to make its circulation impossible, and has all the effect of [438] the order that I have supposed. I repeat. When I observe that the only powers expressly given to the Postmaster General to prevent the carriage of unlawful matter of the present kind are to stop and to return papers already existing and posted, when I notice that the conditions expressly attached to the secondclass rate look only to wholly different matters, and when I consider the ease with which the power claimed by the Postmaster could be used to interfere with very sacred rights, I am of opinion that the refusal to allow the relator the rate to which it was entitled whenever its newspaper was carried, ground that the paper ought not to be carried at all, was unjustified by statute, and was a serious attack upon lib on the erties that not even the war induced Congress to infringe. JOHN BARTON PAYNE, Secretary of the Interior, et al., Plffs. in Err., UNITED STATES EX REL. ALLEN L. V. NEWTON. (See S. C. Reporter's ed. 438-445.) Mandamus to Land Department ministerial duty. publication that does not comply with 1. Fraud in the procurement of the allowance of a final homestead entry and of the issuance of the receiver's receipt does not relieve the Secretary of the Interior and the Commissioner of the Genthe Act of March 3, 1891, § 7, enforceable eral Land Office of their plain duty under by mandamus, to pass the entry to patent, where two years have elapsed since the 1 John Barton Payne, present Secretary 1920, as one of the parties plaintiffs in of the Interior, substituted March 30, former Secretary of the Interior, on error in the place of Franklin K. Lane, tion of Solicitor General King in that be mo date of the receiver's receipt upon the final entry, and there is no pending contest or protest against the validity of such entry. [For other cases, see Mandamus, II. d, 2, in to Land Department Digest Sup. Ct. 1908.] Mandamus ministerial duty. 2. The pendency, when mandamus is sought, of a suit in equity brought by the United States to cancel for fraud the receiver's receipt issued on a final homestead entry, does not afford a sufficient justification to the Secretary of the Interior and the Commissioner of the General Land Office which will preclude the enforcement of their plain ministerial duty under the Act of March 3, 1891, § 7, to pass the entry to patent, where, when two years had elapsed since the date of the receiver's receipt, there was no pending contest or protest against the validity of such entry. [For other cases, see Mandamus, II. d, 2; III. f, in Digest Sup. Ct. 1908.] [No. 123.] Knight v. United Land Asso. 142 U. S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep. 258; United States ex rel. Turner v. Fisher, 222 U. S. 204, 56 L. ed. 165, 32 Sup. Ct. Rep. 37; People ex rel. Power v. Rose, 219 Ill. 46, 76 N. E. 42; Duncan Townsite Co. v. Lane, 245 U. S. 308, 312, 62 L. ed. 309, 311, 38 Sup. Ct. Rep. 99. The relator, being guilty of fraud, is not entitled to relief. High, Extr. Legal Rem. 3d ed. § 26; Com. ex rel. Vandyke v. Henry, 49 Pa. 530; Duncan Townsite Co. v. Lane, 245 U. S. 308, 312, 62 L. ed. 309, 311, 38 Sup. Ct. Rep. 99. Presumption and intendment, so far as they go, must be in favor of returns, not against them, and it is sufficient if the return discloses a fair legal reason why the mandamus should not issue. Springfield v. Hampden County, 10 Pick. 67; Rex v. Lyme Regis, 1 Dougl. K. B. 157, 99 Eng. Reprint, 102; Rex v. Archbishop of York, 6 T. R. 495, 101 Argued December 16, 1920. Decided Eng. Reprint, 666. IN ERROR to the Court of Appeals of the District of Columbia to review a judgment which affirmed a judgment of the Supreme Court for the District, awarding a mandamus to compel the Secretary of the Interior and the Commissioner of the General Land Office to pass a homestead entry to patent. Af firmed. See same case below, 48 App. D. C. 547. The facts are stated in the opinion. Assistant Attorney General Garnett argued the cause, and Assistant Attorney General Nebeker and Special Assistant to the Attorney General Underwood filed a brief for plaintiffs in error: A writ of mandamus should not issue in this case, in view of the pendency of the suit in equity, brought to cancel for fraud the receipt and certificate issued on relator's entry. Note. As to when mandamus is the proper remedy, generally-see notes to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 160; M'Cluny v. Silliman, 4 L. ed. U. S. 263; Fleming v. Guthric, 3 L.R.A. 54; Burnsville Turnpk. Co. v. State, 3 L.R.A. 265; State ex rel. Charleston, C. & C. R. Co. v. Whitesides, 3 L.R.A. 777, and Ex parte Hurn, 13 L.R.A. 120. The proviso to § 7 of the Act of March 3, 1891, does not bar action by the Secretary of the Interior in cases of fraud. Minnesota v. Lane, 247 U. S. 243, 62 L. ed. 1098, 38 Sup. Ct. Rep. 508; Cosmos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 301, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692, 24 Sup. Ct. Rep. 860. Mr. F. W. Clements argued the cause, and, with Mr. Alexander Britton, filed a brief for defendant in error: The decision of this court in the case of Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558, controls. Mr. Justice Van Devanter delivered the opinion of the court: A This was a petition to the supreme court of the District of Columbia for a writ of mandamus commanding the Secretary of the Interior and the Commissioner of the General Land Office to pass a homestead entry to patent. demurrer to the answer was sustained, the defendants elected to stand on the answer, and a judgment awarding the writ was entered. The court of appeals affirmed the judgment (48 App. D. C. 547), and the defendants prosecute this writ of error under § 250, cl. 6, of the Judicial Code. The important statute, the construction of which is drawn in question by the defendants, is a provision in § 7 of On power of courts to enforce minis-the Act of March 3, 1891, chap. 561, 26 terial duties of heads of departments-Stat. at L. 1095, 1099, Comp. Stat. §§ see note to Cooke v. Iverson, 52 L.R.A. 5116, 5113, 8 Fed. Stat. Anno. 2d ed. pp. (N.S.) 415. 825, 867, which declares: |