18 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.11 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." 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. 33, 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. § 31154j, 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. eral would raise not only a grave ques- consistently with rights reserved to the tion, but a "succession of constitutional people, of far greater importance than doubts," as suggested in Harriman v. the transportation of the mail." In Interstate Commerce Commission, 211 other words, the postal power, like all U. S. 407, 422, 53 L. ed. 253, 264, 29 Sup. its other powers, is subject to the limiCt. Rep. 115. It would in practice serious- tations of the Bill of Rights. Burton v. ly abridge the freedom [430] of the United States, 202 U. S. 344, 371, 50 press. Would it not also violate the 1st L. ed. 1057, 1067, 26 Sup. Ct. Rep. 688, Amendment? It would in practice deprive 6 Ann. Cas. 362. Compare Adair v. many publishers of their property with- United States, 208 U. S. 161, 52 L. ed. out due process of law. Would it 436, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 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 construc- is not denied; because the first and tion 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. 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 Con(a) The power to police the mails is stitution deals with substance, not an incident of the postal power. Con- shadows. Its inhibition was leveled at gress may, of course, exclude from the the thing, not the name." Cummings v. mails matter which is dangerous, or Missouri, 4 Wall. 277, 325, 18 L. ed. which carries on its face immoral ex-356, 363. The government might, of pressions, threats, or libels. It may go course, decline altogether to distribute further, and through its power of ex-newspapers; or it might decline to carry clusion 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 | Chafee, Jr., pp. 105-109, 233, 234; also p. 199: "A newspaper editor fears being put out of business by the administrative denial of the second-class mailing privilege much more than the prospect of prison, subject to a jury trial." It has been uniformly held that a statute prescribing similar penalties for failure to observe its provisions, or the order of a public service commission, although made after full hearing, is a deterrent so potent as to amount to a denial of the right to a judicial re 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.14 How dangerous to liberty of the press would be the [432] holding that the secview, and operate as a taking of property without due process of law, in violation of the 14th Amendment. Ex parte Young, 209 U. S. 123, 147, 52 L. ed. 714, 723, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764; Missouri P. R. Co. v. Tucker, 230 U. S. 340, 349, 57 L. ed. 1507, 33 Sup. Ct. Rep. 961; Wadley Southern R. Co. v. Georgia, 235 U. S. 651, 662, 59 L. ed. 405, 411. P.U.R.1915A, 106, 35 Sup. Ct. Rep. 214; Oklahoma Operating Co. v. Love, 252 U. S. 331, 337, 64 L. ed. 596, 599, 40 Sup. Ct. Rep. 338. 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. Č. 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, 35 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 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 classification 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 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 serv ice 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 free, self-governing, and striving people. 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. legal history. Every fine imposed by a court is definite in amount.18 Every fine prescribed by Congress is limited in amount. Statutes frequently declare that each day's continuation of an offense shall constitute a new crime. But here a fine imposed for a past offense is made to grow indefinitely each day,-perhaps throughout the life of the publication. Already, having grown at the rate of say $150 a day, it may aggregate, if the circulation has been maintained, about $180,000 for the three years and four months since the order was entered; and its growth continues. It was assumed in Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 111, 53 L. ed. 417, 430, 29 Sup. Ct. Rep. 220, that an excessive fine, even if definite, would violate the 8th Amendment. Possibly the 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 heavy fine, possibly $150 a day, for supposed transgression in the past. But the trial and punishment of crimes is a function which the Constitution, article 3, § 2, cl. 3, intrusts to the judiciary.17 I am not aware that any other civil administrative officer has assumed, in any country in which the common law prevails, the power to inflict upon a citizen severe punishment for an infamous crime. Possibly the court would hold that Congress could not, in view of article 3 of the Constitution, confer upon the Postmaster General, as a mere incident in the administration of his Department, authority to issue an order which could operate only as a punishment. See Wong Wing V. United States, 163 U. S. 228, 235-237, 41 L. ed. 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" [435] 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 contained 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- Postmaster 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, 18 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. 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 carried, on ground that the paper ought not to be carried at all, was unjustified by statute, and was a serious attack upon liberties that not even the war induced Congress to infringe. was the JOHN BARTON PAYNE, Secretary of V. (See S. C. Reporter's ed. 438-445.) Mandamus -to Land Department ministerial duty. Of course, the Postmaster may deny or revoke the second-class rate to a publication that does not comply with the conditions attached to it by statute, but, as my brother Brandeis has pointed out, the conditions attached to the second-class rate by the statute cannot be made to justify the Postmaster's action except by a quibble. On the other hand, the regulation of the right to use the mails by the Espionage Act has no peculiarities as a war measure, but is similar to that in earlier cases, such as obscene documents. Papers that violate the act are declared nonmailable, and the use of the mails for the transmission of them is made criminal. But the only power given to the Postmaster is to refrain from forwarding the papers when received, and to return them to the senders. Act of June 15, 1917, chap. 30, title XII., 40 Stat. at L. 217, 230, Comp. Stat. § 10,401a, Fed. Stat. Anno. Supp. 1918, p. 132; Act of May 16, 1918, chap. 75, 40 Stat. at L. 553, of the Interior, substituted March 30, 554, Comp. Stat. §§ 10,212cc, 10,401d, Fed. Stat. Anno. Supp. 1918, p. 133. He could not issue a general order that a certain newspaper should not be car-half. 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 Ineral Land Office of their plain duty under terior and the Commissioner of the Genthe Act of March 3, 1891, § 7, enforceable 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 mo |