Even the fact that these private undertakings, disassociated from the carriage of the mails, would be by far the most important, would make no difference, according to the rule as announced by Chief Justice Marshall. On this theory, moreover, can be justified the assumption by the federal government of the functions of a bank and common carrier, through the postal savings and money order systems, and the parcel post, even though these activities can also be supported as proper elements of a postal power as it is interpreted in other countries.

If, therefore, the federal government is competent to establish postal facilities and use them for ancillary yet helpful purposes, there is no reason why it may not exercise its power of eminent domain and take possession of any or all agencies now used in the transportation of the mails, upon the payment of just compensation; own and operate these agencies, use them to carry the mails, and to perform all other functions which would "greatly facilitate the fiscal operations of the government." In this would, of course, be included the smaller power of creating a corporation, perhaps owned in part by the government, to take over and operate the railroads of the country for the same purposes. The connection between such a corporation and the government would be political and public as Marshall pointed out, but it would be created to carry out a power specifically mentioned in the Constitution, and its public nature would therefore be much more apparent. There is thus an error of understatement when it is urged that "no valid distinction can be drawn between the vital necessity of the right to trade in money to a fiscal instrumentality of the government, and the right to trade in transportation to a transportation instrumentality of the government."

It is an arguable proposition that such a purpose could be accomplished under the commercial power which is simply that of "regulation." By many the opinion is held that this of itself is sufficient to give Congress the right to compel

Farrar, The Post Road Power (Hearings before Committee on Interstate Commerce, United States Senate, 62d Congress, p. 1498 ff).

industrial corporations doing an interstate business to secure federal charters. The constitutionality of a law to compel interstate railroads to incorporate under the commerce clause is even less doubtful, and the Supreme Court has upheld the exercise of the commercial power in condemning the property of a state corporation organized to improve navigation, just compensation including the value of the franchise which was destroyed.10 Federal incorporation, then, may be required on the ground that it is necessary for the efficient regulation of the carriers. On the other hand, the postal clause gives Congress the right to establish instrumentalities for the transportation of the mails, and the assumption of control or ownership under this grant of power is more surely within the rule as laid down by Marshall in Osborn v. The Bank of the United States.

In 1792 the proposal was made in Congress that the proprietors of mail stages be permitted to carry passengers, but the motion was lost, on the ground that under the postal clause Congress did not provide the necessary authority.11 It is true, also, that the framers of the Constitution did not, because they could not, contemplate the taking over by Congress of the railways of the country. And, as the preceding discussion has attempted to show, during the early days of legislative activity under the postroads clause, the consent of the states was required for construction within their borders, and they acceded in one form or another to several of the acts granting federal charters.12 But, as the Supreme Court of the United States has said in language already quoted, the powers of Congress "are not confined to the instrumentalities of commerce or of the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country." This, coupled with the right of eminent domain, is, it is submitted, sufficient to enable the national government, either

10 Monongahela Navigation Co. v. U. S., 148 U. S. 312 (1893). 11 Annals of 2d Congress, pp. 303–309.

12 See Prentice, Federal Power over Corporations and Carriers, P. 152.

directly or through a federally chartered corporation, to take over and operate the railroads of the country for the carriage of the mails, with the power of engaging in the transportation of freight or passengers, to the extent that Congress may desire.13

Postal Telegraphs and Telephones.-The case last cited is ample authority for Congress to take over and operate the telegraph and telephone systems of the country, for the Supreme Court made its pronouncement in upholding the act of July 24, 1866,14 "to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes." The act, among other things, gave companies complying with its terms the right to erect their poles and string their wires along any military or post road, and the Supreme Court declared void a state statute which attempted to give exclusive rights to a local company.

By the third section of the congressional act, it was provided that "the United States may, at any time after the expiration of five years from the date of the passage of this act, for postal, military or other purposes, purchase all the telegraph lines, property and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the postmaster general of the United States, two by the company interested, and one by the four so previously selected." The United States therefore reserved to itself the power which it would otherwise have had,—that of eminent domain in respect to telegraph facilities. In his report for 1913, the postmaster general said:

"A study of the constitutional purposes of the postal establishment leads to the conviction that the Post Office De

18 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 (1878). Congress may authorize the secretary of war to lease upon terms agreed upon any excess of water power which results from the conservation of the flow of a river, and the works which the government may construct. U. S. v. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913).

14 37 Stat. L. 560.

partment should have control over all means of the communication of intelligence. The first telegraph line in this country was maintained and operated as a part of the postal service, and it is to be regretted that Congress saw fit to relinquish this facility to private enterprise. The monopolistic nature of the telegraph business makes it of vital importance to the people that it be conducted by unselfish interests, and this can be accomplished only through government ownership." If Congress decides to take over these facilities, its action will be clearly within the postal power.15

15 For an account of proposals in Congress to take this action, a history of its recommendation by successive postmasters general, and much valuable statistical information concerning the operation of the American privately owned, and the foreign publicly owned, telegraph and telephone systems, see Government Ownership of Electrical Means of Communication," 63d Congress, 2d Sess., Senate Doc. No. 399.

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CHAPTER VII

THE EXTENSION OF FEDERAL CONTROL THROUGH EXCLUSION FROM THE MAILS

It has already been indicated that, while the postal power of Congress is plenary, extending to the classification and exclusion of articles presented for transmission through the mails, it is not without limits; that its exercise is restricted by provisions found in the Constitution itself,—the guarantees of a free press and immunity from unreasonable searches and seizures. There is, moreover, a further important limitation in that an arbitrary refusal of postal facilities would seem to be a denial of due process of law.

The Supreme Court of the United States has not yet been called upon to set any limit to congressional action under this clause; it has thus far upheld every law restricting the use of the postoffice. But it should be remembered in the discussion which follows that all existing exclusions from the mails can be justified as partaking of the nature of police regulations; the prohibited articles are either inherently injurious, inimical to the health, safety and well being of recipients, or the use of the mails is denied because it would be in furtherance of a design that is condemned by moral considerations or is against public policy.

That this Index Expurgatorius will be extended may be taken for granted. It is in the nature of police regulations that they expand more inclusively and rigorously. For example, in 1912 Congress excluded from the mails moving picture films of prize fights.1 At the third session of the Sixty-third Congress, moreover, bills were introduced and urged to deny absolutely the use of the mails to any person who, in the opinion of the postmaster general, “is engaged 137 Stat. L. 240.