The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

While the President’s attitude stopped Congress from actually constructing roads, frequent appropriations were granted to be applied under the direction of the states. Perhaps the most important of these was in the act passed in 1824 to have surveys made of such roads and canals as in the opinion of the President were of value for military, commercial and postal purposes.[229]

Conflict over the constitutional problem, and the distinction between appropriation and construction, were, however, abandoned by John Quincy Adams who was a stanch advocate of federal aid,[230] but the discussion was revived by Jackson, who vetoed six bills,[231] the most important of which provided for a government subscription of $150,000 to purchase stock in the Maysville, Washington, Paris and Lexington Turnpike Company, a Kentucky corporation. The action of the President did not come as a surprise for in his first annual message he had told Congress that the mode of internal improvements, “hitherto adopted, has by many of our fellow citizens been deprecated as an infraction of the constitution, while by others it has been viewed as inexpedient. All feel that it has been employed at the expense of harmony in the legislative councils.”[232]

Furthermore, Jackson thoroughly disapproved of the government’s becoming a minority stockholder in a semi-private enterprise which would receive profits through the payment of tolls. He held it to be not only “highly expedient, but indispensably necessary, that a previous amendment of the Constitution, delegating the necessary power and defining and restricting its exercise with reference to the sovereignty of the states, should be made.”[233] Otherwise there would be a continuance of congressional uncertainty as to the existence of the power. He considered the general question in two aspects: (1) as “to the power of making internal improvements within the limits of a state, with the right of territorial jurisdiction, sufficient at least for their preservation and use” and (2) as to the power of “appropriating money in aid of such works when carried on by a state or by a company in virtue of state authority, surrendering the claim of jurisdiction.”[234] He believed Congress could appropriate directly for national, not local, purposes; the other power he firmly denied.

After Jackson there were other vetoes of internal improvement bills, but they were based largely upon the distinction between national and local objects. Road construction, moreover, gave way to river and harbor development, and there was little, if any, discussion of the meaning of the postal clause. Congress asserted a broad power over postroads designated by it, and there was little objection; on the few occasions that the matter came before the courts, the power was sustained. In 1862 Congress gave the President authority when in his judgment the public safety required its exercise, to take possession of all railroads and telegraphs and to place their employees under military control, so that the lines would be “considered as a postroad and a part of the military establishment of the United States, subject to all the rules and restrictions imposed by the rules and articles of war.”[235] Any interference with the exercise of this authority was made a crime. Compensation to the railroad and telegraph companies was to be fixed by three commissioners, subject to approval by Congress. This authorization, however, was based upon the war, as well as on the postal power, and when Congress came to charter railroads and bridge companies, it based its right largely on the commerce clause, with the postal and war grants as ancillary sources.[236]

Recent evidences of congressional action, based upon the postroads clause, are to be seen in the good roads movement, and in 1912 Congress appropriated five hundred thousand dollars for “improving the condition of roads to be selected by them [the secretary of agriculture and the postmaster general] over which rural delivery is or may hereafter be established, such improvement to be for the purpose of ascertaining the increase in the territory which could be served by each carrier as a result of such improvement, the possible increase of the number of delivery days in each year,” etc. But it is provided that the state in which the improvements are to be made “shall furnish double the amount of money for the improvement of the road or roads so selected.”[237] The results of the scheme have not been very satisfactory,[238] but proposals are made for other, and more extensive federal undertakings. Finally it is possible, in some measure at least, to base upon the postal power the Act of March 12, 1914, which authorizes “the president of the United States to locate, construct and operate railroads in the Territory of Alaska.”[239]

Judicial Determinations.—The power of Congress to construct roads and canals did not, in the early days of its assertion and denial, come before the Supreme Court of the United States; in fact, the question has never been directly passed upon by the Court, and long before it was incidentally considered, largely in the cases upholding the right of eminent domain and its delegation to railroad corporations with federal charters, the constitutional problem, as Madison said in rejecting the bank bill of 1814, was “precluded by repeated recognitions, under varied circumstances, of the validity of the exercise of a power to establish a bank by Congress, in acts of the legislative, executive, and judicial branches of the government, accompanied by indications in different modes of a concurrence of the general will of the nation.”[240] Such a test, however, is by no means adequate.

For a time the question of congressional power was acute, and its existence was not acknowledged, even by some who cannot be called strict constructionists. The opinions held by Congress and the executive have already been reviewed; but Monroe’s elaborate veto message on the “gate bill” gave the Supreme Court justices an opportunity to express their views informally, for he sent a copy of his paper to each member of the Court. In his reply Justice Johnson intimated that the doctrine of McCulloch v. Maryland[241] committed the Court to upholding a power in Congress to construct roads for military and postal purposes; Marshall considered the question one “on which many divide in opinion, but all will admit that your views are profound and that you have thought much on the subject.” Story was noncommittal, and thus one of the few attempts to get an informal expression of opinion from the Supreme Court was a failure.[242]

It is difficult to see how, logically, there can be any doubt as to a very wide authority in Congress. A fair interpretation of the word “establish” comprehends “construction” or at least something more than “designation”; otherwise it would have been futile for the Articles of Confederation and the Constitution to give Congress powers under which it has undertaken to “establish” navy hospitals, trading houses with the Indians, inferior courts, rules of capture, and regulations of trade. The second portion of the postal clause did not appear in the Articles of Confederation, and the grant in the Constitution was absolute, with no limitations as to state action. A restricted interpretation, applied to the first part of the clause, as demanded by consistency, would give Congress authority to provide postoffices, but without mails, carriers, routes, secure transmission, or revenue. That Congress in fact had the power to construct roads has been made evident, I think, by the debates on the various measures that were proposed.

But as has been seen in the legislation concerning the Cumberland Road, the consent of the states was required before construction could be started, and limitations were imposed on the federal power. So also, it was at first maintained that Congress did not have the right to keep the roads open, in repair, and to impose tolls for their use, whether they had been constructed under national authority or had simply been designated as mail routes. For example, the Act of March 26, 1804, provided “that whenever it shall be made to appear to the satisfaction of the postmaster general that any road established by this or any former act, as a postroad, is obstructed by fences, gates or bars, other than those lawfully used on turnpike roads, to collect their toll, and not kept in good repair with proper bridges and ferries, where the same may be necessary it shall be the duty of the postmaster general to report the same to Congress, with such information as can be obtained, to enable Congress to establish some other road, instead of it, in the same main direction.”[243]

In 1812 Gallatin made a report to the President on the Cumberland Road and referred to the necessity of levying tolls sufficient to keep certain portions in repair; but this, he said, could be done “only under the authority of the state of Maryland.”[244] The next year the superintendent of the road reported to Gallatin that he expected the Maryland legislature to pass a law, “authorizing the President to receive toll, for the purpose of repairing the road, and likewise against abuses which are common on all roads of the kind to prevent which laws have been found necessary.”[245] Secretary Dallas was of the same opinion, and in 1815 told the House Committee on the Cumberland Road that Congress had no authority to make provision for tolls and the prevention of abuses. “They can only proceed,” he said, “from the legislatures of the states through which the road passes, and consist of an authority for the erection of toll gates, and the collection of a toll sufficient to defray the expenses of repair, and the infliction of penalties upon persons who shall cut, break up, or otherwise destroy or injure the road.”[246]