44

that a state may not interfere with a commodity until it has reached the consignee, who has a right to receive shipments from without the state. If the state forbids possession, no matter how acquired, then the question of receiving becomes academic, since it would be impossible to separate the two acts. So also, if Congress has excluded a commodity from interstate commerce, then the consignee's right to receive this commodity has been taken away, and the state has plenary power.45 The same reasoning applies to the receiving of mail matter: the state would be competent to punish only if Congress has forbidden the use of the mails, as is the case, for example, with lottery tickets and obscene literature. But in any event, a law directed against receiving certain mail matter could just as well forbid possession, and as the state has power in the latter case, the distinction is without importance except in so far as the possession is more difficult to detect than the receipt. Certain it is, however, that, as was attempted by the incendiary literature legislation, the state may not punish a man for taking from the mails what the federal government permits to be sent.

This conclusion is applicable to the validity of legislation forbidding the advertisement of intoxicating liquors. The state may not keep out, or prevent the receipt of, such advertisements or journals containing them, when sent through the mails or interstate commerce; it may forbid the sale of such journals if not in their "original packages,” and if it attempts to penalize the possession of such advertisements, there is no constitutional question so far as the mails are concerned.

The use of the mails may constitute a crime against the state, but the Circuit Court of Appeals for the Fourth Cir

44 See, inter alia, Leisy v. Hardin, 135 U. S. 100 (1890), and Rhodes v. Iowa, 170 U. S. 412 (1897).

45 This is the theory of the Webb-Kenyon Act. See my papers, "The Power of the States over Commodities Excluded by Congress from Interstate Commerce," 24 Yale Law Journal, 567 (May, 1915), and State Legislation under the Webb-Kenyon Act." 28 Harvard Law Review, 225 (January, 1915).

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46 See the reasoning in State v. Delaye, 68 So. 993 (Ala., 1915).

cuit has gone much farther than previous decisions and in a recent case declared: "It makes no difference that the United States Mail was used for the solicitation [of orders for intoxicating liquors]. The federal government does not protect those who use its mails to thwart the police regulations of a state made for the conservation of the welfare of its citizens. The use of the mail is a mere incident in carrying out the illegal act, and affords no more protection in a case like this than a like use of the mails to promote a criminal conspiracy, or to perpetrate a murder by poison, or to solicit contributions of office holders in violation of the civil service law, or to obtain goods under false pretenses."47

In Adams v. The Peoples-the case probably meant but not cited by the last clause of the quotation-there was an indictment for obtaining money under false pretenses, although the defendant was a resident of Ohio and had never been in New York. So also, in cases referred to by the Circuit Court of Appeals, the solicitation through the mails of orders for intoxicating liquors has been punished where the matter was mailed and received within the limits of the state and there was no interstate commerce involved.49 But the Supreme Court decisions cited by the Circuit Court of Appeals simply hold that Congress may make the use of the mails a crime when in furtherance of a purpose to violate federal laws and are obviously not precedents for sustaining the West Virginia legislation.5

50

Now, the sine qua non of forbidding solicitation by means of the postoffice is that the sale of the intoxicating liquor is itself a crime; otherwise the state could have an unrestrained power to prescribe the purposes for which the mails might be used. The Circuit Court of Appeals evidently reasoned on this basis and considered as constitutional the

47 West Virginia v. Adams Express Co., 219 Fed. Rep. 794 (1915). I N. Y. 173 (1848).

48

49 Hayner v. State, 83 Ohio St. 178 (1910). See also Zinn v. State, 83 Ark. 273, 114 S. W. 227 (1908).

50 U. S. v. Thayer, 209 U. S. 39 (1908), and In re Palliser, 136 U. S. 257 (1890).

section of the state law which provides that "in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof shall be deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent, or employee." The Court held that such a regulation was sanctioned by the Webb-Kenyon Act,51 although admittedly invalid if not thus justified. This presents a question that is beyond the purview of the present study, but it is obvious that if the sales could be made, then the solicitation could not be made a crime; and it may be added, parenthetically, that the Court probably erred in holding that the sales were forbidden.

The case nearest in point-Rose Co. v. State52-is not cited by the Circuit Court's opinion. The defendant corporation in Tennessee mailed circulars advertising liquors to residents of Barton County, Ga. The Georgia law forbade solicitations where it was unlawful to sell, but the Supreme Court of Georgia held that shipments could be made from without the state under the protection of the commerce clause, and it could not, therefore, be a crime to use a federal agency in furtherance of a purpose that was sanctioned by the Federal Constitution.

It may be said, then, that the use of the mails may be penalized only when in furtherance of a purpose that is unlawful; nor can it be argued-as was done with considerable force by the late James C. Carter against the exclusion of lottery tickets from the mails53—that the state may punish only when the purposes are mala in se and not when merely mala prohibita. If the state has the power, it may define unlawful," but punishment cannot take place if the act

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51 37 Stat. L. 699. For a further discussion of this point see my paper, “Unlawful Possession of Intoxicating Liquors and the WebbKenyon Act," 16 Columbia Law Review, I (1916).

52 133 Ga. 353, 65 S. E. 770, 36 L. R. A. (n. s.) 443 (1909), and note, which says that the case is one primae impressionis. It should be said that the decision in the Court of Appeals was contra. See 4 Ga. App. 588, 62 S. E. 117 (1908).

53 In re Rapier, 143 U. S. 110 (1892).

sought to be effected by the use of the mails is permitted by state law, or if the inhibition is invalid, as is, it would seem, the case with the West Virginia legislation. Finally, it is difficult to see how the state may forbid anything but direct solicitation. A magazine or newspaper proprietor who publishes the advertisements does not use the mails for the purpose of consummating a crime, and the advertiser does not use the mails at all. The solicitation, therefore, must be direct.54

54 To make the record complete it should be added that the federal courts have exclusive jurisdiction of all offenses embraced by statute, committed in a postoffice owned by the United States or jurisdiction over which has been ceded by the state. Battle v. U. S., 209 U. S. 36 (1908). But the fact that a train is engaged exclusively in carrying the United States mail does not preclude the jurisdiction of a state court of a prosecution for the murder of an engineer, committed by derailing the train. Crossley v. California, 168 U. S. 640 (1898).

CHAPTER VI

THE EXTENSION OF FEDEral Control OVER POSTROADS

Federal Ownership of Railroads.-In an address at Indianapolis on May 30, 1907, President Roosevelt discussing the necessity for further congressional regulation of railway companies, declared that, "in so far as the common carriers also transport the mails, it is, in my opinion, probable that whether their business is or is not interstate, it is to the same extent subject to federal control, under that clause of the Constitution granting to the national government power to establish postroads, and therefore by necessary implication power to take all action necessary in order to keep them at the highest point of efficiency."

991

The placing of such a construction upon the postroads clause aroused a storm of criticism, but, in the main, President Roosevelt was correct in his assertion of congressional authority. Municipal streets used by mail carriers or wagons are postroads and federal control exists to the extent of insuring safe passage of the mail and prohibiting private competition; by the rural free delivery system, moreover, state wagon roads are under federal authority to the same extent. That much has been made evident by the preceding discussion.

As to common carriers between the states, congressional regulation has been very largely based upon the commerce clause of the Federal Constitution, and the transportation

1 The Roosevelt Policy, vol. ii, p. 486. In his Provincetown address (August 20, 1907) President Roosevelt returned to the same theme, saying: "I believe, furthermore, that the need for action is most pressing as regards those corporations which, because they are common carriers, exercise a quasi-public function; and which can be completely controlled, in all respects, by the federal government by the exercise of the power conferred under the interstate commerce clause, and, if necessary, under the post-road clause of the Constitution." Ibid., p. 564.