And on the basis of this principle, there is no reason to hold that the postal employees could not be punished for distributing the incendiary matter when it was their federal duty so to do. To be sure, as urged by Cushing and Tucker, the United States guarantees each state a republican form of government and protects it against domestic violence, but this does not mean that a law which is passed by Congress to apply uniformly to the whole country, and which may, on account of peculiar local conditions, aid insurrectionary movements in certain of the states, is thereby unconstitutional. The resort of the states is not to the courts, but to Congress for the repeal of the harmful measure. Furthermore, the guarantee does not obligate the United States to insure a state against the occurrence of any violence, but simply to protect it when the violence is attempted. Since, therefore, the federal laws made criminal the detention of any mail matter, with only such exceptions as Congress might introduce, there was no way in which the states might enforce their laws against incendiary literature, unless they could exclude it absolutely from their borders.
As to this power, there are no judicial precedents, but the carriage of the mails being under federal auspices and Congress having a property right in them, the authority of the states to exclude, if it exists at all, is certainly narrower than that in regard to interstate commerce. As to this, the states may exclude from their borders only such articles as are intrinsically unfit for commerce and unmerchantable. The Supreme Court enumerated, as examples, “rags or other substances infected with the germs of yellow fever, or the virus of small pox, or cattle, or meat or other provisions that are diseased or decayed.” These articles “may be rightly outlawed as intrinsically and directly the immediate sources and causes of destruction to human health and life.”[391] Publications calculated to incite the slaves to rebellion would not fall within this classification. The conclusion, then, must be that in disseminating the incendiary literature, the postal agents acted properly, and that the state laws were inoperative as applied to them. But if the states have a restricted power of exclusion, such as that defined in the Bowman case, it is, in effect, a nullity, since circumstances can hardly be imagined under which its exercise might take place, without delaying the mails, or violating federal statutes which attach penalties for opening the mail and interfering with it while in transitu.
There remains the further question whether a state is competent to forbid its citizens to receive certain mail matter, and here also the interstate commerce analogy affords an answer. By a long line of decisions, principally in regard to intoxicating liquors, it has been established 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.[392] 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.[393] 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,”[394] 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 Circuit 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.”[395]
In Adams v. The People[396]—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.[397] 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.[398]
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 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,[399] 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. State[400]—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 mails[401]—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 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.[402]