“A distinction is to be made between different kinds of mail matter, between what is intended to be kept free from inspection, such as letters and sealed packages, subject to letter postage, and what is open to inspection.... Letters and sealed packages of this kind in the mail are to be as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly in describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.”[341]
The limitation operates chiefly upon administrative officials who attempt to get evidence of violations of the law regarding obscene literature and fraudulent matter excluded from the mails. In regard to this the Court said:
“Whilst regulations excluding matter from the mails cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways; as from parties receiving the letters and packages, or from agents depositing them in the postoffices, or others cognizant of the facts. And as to the objectionable printed matter which is open to examination, the regulations may be enforced in a similar way, by the imposition of penalties for their violation through the courts, and, in some cases by the direct action of the officers of the postal service. In many instances those officers can act upon their own inspection, and, from the nature of the case, must act without other proof; as where the postage is not prepaid, or where there is an excess of weight over the amount prescribed, or where the object is exposed, and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. In such cases, no difficulty arises, and no principle is violated in excluding the prohibited articles and refusing to forward them. The evidence respecting them is seen by everyone and is in its nature conclusive.”[342]
This view of the law has been acquiesced in by Congress which has provided that nothing in the acts excluding certain matters from the mails, “shall be so construed as to authorize any person other than an employee of the Dead Letter Office, duly authorized thereto, to open any letter not addressed to himself.”[343] The regulations promulgated for the postoffice department, provide, moreover, that neither postmasters, inspectors, employees, nor officers of the law, “without legal warrant therefor, have authority to open under any pretext a sealed letter while in the mails, not even though it may contain improper or criminal matter, or furnish evidence for the conviction of offenders,” and out of excess of caution, it is further added that “the seal of letters or packages suspected to contain unmailable matter shall not be broken to ascertain that fact.”[344] The regulations provide that matter manifestly unmailable shall be withdrawn and sent to the Division of Dead Letters with a statement of the facts upon which such action was taken; if there is doubt as to the propriety of such disposition, the matter shall be sent to the Assistant Attorney General for the Postoffice Department, for his decision.[345] Any unlawful opening of the mail by a postal employee is dealt with criminally.[346] Special regulations govern the examination by a customs officer of sealed packages supposed to be dutiable, in the presence of the addressee, but before delivery to him.[347]
If, then, at times, administrative zeal may lead to a disregard of these regulations, the official is criminally liable, and the one whose sealed mail is searched, has a right of action for damages. But the avowed purpose of Congress and of the postoffice department is to subordinate efficiency in the detection of wrongdoing to the right of the people, under the Fourth Amendment, to be secure in their sealed papers when they are in the hands of the government for transmission through the mails.[348]
CHAPTER V
The Power of the States to Interfere with the Mails
In the disputed zone between federal authority and the reserved rights of the states, interesting and often acute problems have, of course, frequently developed. The most important of these have probably been with regard to the national control of interstate commerce and the police power of the states, and several times Congress has passed legislation designed to leave certain subjects within the jurisdiction of the states or to make local regulations more effective. In Jefferson’s administration, for example, Congress passed a law prohibiting the transportation of free negroes from one state into another where by local laws they were not permitted to reside;[349] the sale of oleomargarine has been made subject to local regulations;[350] Congress has forbidden the transportation of game killed in violation of state laws,[351] and has twice enacted legislation to enable the states more effectively to regulate the sale of intoxicating liquors.[352] Such action has been necessary since congressional silence has been interpreted by the courts as meaning that commerce between the states shall be free, just as, when Congress has acted affirmatively, state laws in conflict are thereby suspended: in both cases the supremacy of the federal authority is unquestioned. Nevertheless local jurisdictions have been permitted to exercise a slight measure of police control.[353]
It would seem evident, at first glance, that, inherently, the power of Congress over the postal system is even more paramount than that over interstate commerce, but there has been practically no judicial determination of the subject, and as there are only a few incidents in which a conflict of jurisdiction has taken place, conclusions as to the exclusiveness of the federal power must be largely speculative. Some aid, it is true, may be drawn from the analogy of interstate commerce, but there is the fundamental difference that postal facilities are established and conducted, while trade between the states is simply regulated, by Congress. From this arises the presumption that the mails are less subject to interference than is interstate trade. Has this in fact proved to be the case?[354]