The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

The first question as to the rights of the states was raised in 1812, when the general assembly of the Presbyterian Church and the Synod of Pittsburgh memorialized Congress to suspend the carrying and opening of the mails on Sunday, but, owing to the “peculiar crisis of the United States” then pending, the petitions were withdrawn and the House Committee on the Postoffice and Postroads did not consider the requests on their merits.[355] In practice the activities were lessened, offices at which the mail arrived on Sunday being kept open for one hour only, and that not during the time of public worship. So, the Senate Committee to which similar memorials were referred, deemed it inexpedient to make any change, particularly “considering the condition of the country, engaged in war, rendering frequent communication through the whole extent of it absolutely necessary.”[356]

The practice to which objection was made had obtained since the adoption of the Constitution. By the postal act passed in 1810[357] it was made a duty of postmasters “at all reasonable hours, on every day of the week, to deliver” mail to the proper persons, and since this provision was reenacted in 1825[358] protests were still received from a number of the states in which rigorous Sunday observance laws had been passed. Upon the memorials which were presented in 1829 the Senate Committee acted unfavorably, but the House Committee acceded so far as to propose the discontinuance of delivery, but the maintenance of transportation;[359] the chief objection seemed to be to the keeping open of the postoffices and not to the carrying of the mails, for which, it was realized, the greatest possible expedition was desirable. In 1830 counter memorials opposed “the interference of Congress upon the ground that it would be legislating upon a religious subject and therefore unconstitutional,”[360] but this argument is clearly untenable, since Sunday legislation has uniformly been upheld, not upon religious grounds, but as a valid exercise of the police power,[361] and Congress certainly has analogous authority so far as concerns the conduct of government business.

During the whole of this period, however, when certain localities and religious bodies desired observance of Sunday by the postoffice, the authority of Congress to make such regulations as it might see fit for the transportation of the mails, was not seriously questioned, and the states did not attempt, under their police power, themselves to take affirmative action. One of the committee reports suggested, but did not argue, a contrary proposition when it asked: “If the arm of the government be necessary to compel respect and obey the laws of God, do not the state governments possess infinitely more power in this respect?” But this implication of authority in the states to interfere with the postal function is later denied when the committee says that in order to insure effective Sabbath observance it should be made a crime to receive, write, or read letters.[362] Congress, however, is the sole judge of the primary question. As a House Committee said in 1817: “The power ‘to establish postoffices and postroads’ is by the Constitution of the United States exclusively tested in Congress; and the transportation and distribution of the mail, at such times and under such circumstances as the public interest may require, are necessarily incident to that power.”[363]

It should be remembered, however, that the law provided for delivery “at all reasonable hours, on every day of the week,” and so the question is different from that decided by the Supreme Court of the United States in Hennington v. Georgia,[364] where it was held that a state statute prohibiting the running of freight trains on Sunday was, in the absence of congressional regulation of the subject, not invalid as interfering with interstate commerce. But even if Congress had not provided for the carriage of the mails on Sunday, there could be no stoppage under a state statute, since the subject is one for exclusive federal regulation; and if the freight trains in the Georgia case had carried mails, the decision would have been otherwise. Similarly, the state laws which provide punishment for working on Sunday are inoperative as applied to postal employees (in discharge of their duty imposed by federal regulations) even though the local statute may make no express exception. The question has rarely come before the courts, but it has been held a work of necessity to shoe horses used by a stage company in transporting the mail.[365] The work done by postal employees would, therefore, be necessary within the exemption made by nearly all Sunday observance laws; but if this were not the case, the laws would not apply.

Closely allied to this question is that of how far the states may go in making police regulations, regard for which will result in a temporary delay of the mails. As early as 1817 it was held by a federal circuit court that a municipal corporation is competent to prevent the reckless driving of a mail carrier through crowded streets.[366] Of similar import was the advice given the postoffice department in 1852 by Attorney General Crittenden, that municipal ordinances prohibiting railroad trains from running at a rate of more than six miles an hour within the town limits, the mails thereby being delayed, were valid regulations and not in conflict with the act of Congress.

“When such regulations,” said the opinion, “are fairly and discreetly made with intent to preserve the peace, safety and well being of the inhabitants of the city, they may be said to flow from powers necessary and proper in themselves, which the act of Congress does not intend to take away or impugn.”[367]

At later dates the validity of similar regulations requiring trains to stop at particular points was passed upon by the United States Supreme Court and the exercise of local authority was, in several cases, declared inoperative, primarily upon the ground that it interfered with the freedom of trade between the states, and the commercial, rather than the postal, power was relied upon, as in federal incorporation, to furnish the basis of the court’s decisions. But the fact that, in many instances, the trains carried the mails under contracts which required expedition was incidentally referred to as a further reason for declaring local regulations invalid.

Thus, when an Illinois statute required an interstate train to turn aside from the direct route for a stop at a station three and one half miles away, the Supreme Court held the requirement to be “an unconstitutional hindrance and obstruction of interstate commerce and of the passage of the mails of the United States....

“It may well be, as held by the courts of Illinois, that the arrangements made by the company with the Postoffice Department of the United States cannot have the effect of abrogating a reasonable police regulation of the state. But a statute of the state, which unnecessarily interferes with the speedy and uninterrupted carriage of the mails of the United States, cannot be considered as a reasonable police regulation.”[368] And in a later case the court said:

“The fact that the company has contracts to transport the mails of the United States within a time which requires great speed for the trains carrying them, while not conclusive, may still be considered upon the general question of stopping such trains at certain stations within the boundaries of a state. The railroad has been recognized by Congress and is the recipient of large land grants, and the carrying of the mails is a most important function of such a road.”[369] The test as laid down by the United States Supreme Court is, therefore, simply one of reasonableness and necessity; and the courts, not the legislatures, are to determine the question.