Thus when an express company had a number of messengers to collect letters daily from certain customers who paid with private stamps, previously sold, the letters being taken to an office, sorted, and dispatched to the addressees, the court held that these deliveries could not be deemed “by messenger employed for the particular occasion only,” but were deliveries “by regular trips and at stated periods,” and the defendant was therefore liable.[124]
There has always been the exception that the carrier is permitted to transport, otherwise than in the mail, letters or packets relating “to some part of the cargo of such steamboat or other vessel, to the current business of the carrier, or to some article” carried at the same time.[125] Under this inhibition it is not lawful for a railroad company to carry letters from one connecting line to another line, when the letters relate to through business. The letters must be sent by, or addressed to, the carrying company.[126] But in 1912 Attorney General Wickersham decided that a railroad might carry over its lines, not in the mail, letters written by the secretary of a relief association (which was composed of the employees of the railroad) to the railroad company, but not letters from the officers of the association to its members.[127]
In 1915 the Supreme Court was called upon to construe the statute and held within the “current business” exception “letters of a telegraph superintendent, jointly appointed and paid by a railway company, and a telegraph company, which were written to a railway station agent and telegraph operator with the purpose of promoting the efficient and successful operation of the telegraph business in the success of which the railway company, under the contract with the telegraph company, has a financial interest.” The Court refused, however, to consider whether the statute is “penal or remedial, or whether it is to have a strict or a liberal interpretation.”[128]
Another class of offences has arisen out of the section providing punishment for “whoever shall knowingly and wilfully obstruct or retard the passage of the mail,” or any conveyance by which it is being carried. Wide extension of federal authority and effective federal supremacy have been enforced under this provision, it having been held that a defendant toll gate keeper cannot plead the justification of a state law for stopping a carrier of the mail.[129] It has been decided, also, that mail matter in the postoffice, ready for delivery, is “obstructed” within the meaning of the statute by an unprovoked assault on the postmaster. “The law presumes that the defendant intended by his act the result which followed and the offense is complete.” An act, if unlawful, resulting in an obstruction, is per se done knowingly and wilfully.[130]
Preventing a mail train from running as made up, even though one is willing that the mail car shall go on, is an obstruction within the meaning of the statute,[131] and where the regular passenger trains of a railroad company have been selected as the ones to carry the mail, the failure of the railroad to run other trains for that purpose is not necessarily unlawful.[132] It is no defense, however, that the obstruction was effected merely by leaving the employment, “where the motive of quitting was to retard the mails, and had nothing to do with the terms of employment.”[133]
These doctrines were given their widest scope in the Debs cases. It was held that an indictment for obstructing the mails need not set out that the act was done feloniously, since the crime was not a felony at the common law; nor, furthermore, is it necessary to show knowledge that the mails would be interfered with. “The laws make all railways postroutes of the United States,” said the court, “and it is within the range of everyone’s knowledge that a large proportion of the passenger trains on these roads carry the mails.” Finally where the indictment is for conspiracy to obstruct the mails, and overt acts in pursuance thereof, “it is not restricted to a single overt act, since the gist of the offense is conspiracy, which is a single offense.”[134]
The authority of Congress may, moreover, be enforced otherwise than by prosecution for violations of this provision. “The entire strength of the nation,” said the Supreme Court, “may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws.” And the Supreme Court went on to declare that “it is equally within its [the federal government’s] competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of those courts to remove or restrain such obstructions; that the jurisdiction of the courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable authority; ... that the proceeding by injunction is of a civil character and may be enforced by proceedings in contempt; that such proceedings are not in execution of the criminal laws of the land; that the penalty for a violation of the injunction is no substitute for and no defence to a prosecution for any criminal offences committed in the course of such violation.”[135]
When we turn, however, to the power of Congress to exclude from the mails, a different problem is presented. As has been pointed out, early in the history of the postoffice, mail matter was classified according to its character and different rates of postage were charged. In 1799 the Postmaster General sent a letter to Congress complaining of “large and inconvenient packages” and the Act of 1810 provided that “no postmaster shall be obliged to receive, to be conveyed by mail, any packet which shall weigh more than three pounds.”[136] Congress, therefore, very early exercised the right of determining what articles should be mailable and the conditions upon which they should be carried.
These exclusions were made to protect the mails. Objection was made to the “inconvenient packages” on the ground that the transit was retarded and smaller articles were injured. Such restrictions have been maintained, the postoffice regulations now prescribing the limits, both of weight and size. Congress has, moreover, on the same ground, conditionally excluded a variety of articles, such as poisons, explosives, inflammable materials, infernal machines, disease germs, and all compositions liable to hurt anyone or injure the mails. It is provided, however, that the postmaster general “may permit the transmission in the mails under such rules and regulations as he shall prescribe as to preparation and packing” of any of these articles, “not outwardly or of their own force dangerous or injurious to life, health and property.” Intoxicating liquors are absolutely excluded. Any violations of the statutory provisions or of regulations made by the postmaster general in pursuance of the authority given him, are punishable by fine and imprisonment.[137]
The absolute exclusion of intoxicants, however, cannot be justified upon the same principles as the conditional exclusions, since the danger to the mails can only arise from the fact that they are liquids. This distinction leads naturally to another class of articles which are denied postal facilities on account of the effect they will have on recipients. In this class is all printed or written matter which is obscene, libellous and indecent, or which relates to lotteries and fraudulent schemes.[138]