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Q999 0631' w 







Victor E. Cappa 


MARCH, 1936 



Victor E. Capua 

MARCH, 1936 



These "two studies ox Certain Constitutional Powers as 
Possible Bases for Federal Peculation of 3nrployer-Zmployee 
Relationship s" were prepared by Mr. Victor F. Cappa of the 
Legal Research Section, Mr. George W. Kretzinger, Jr., in 

It did not prove possible to make available for these 
studies the amount of time or personnel that was originally 
contemplated. They have, however, been carried to a stage 
that justifies making them available in mimeographed form. 

The reader will be interested in certain other analyses 
which have appeared in mimeograph form, such as: 

Work Materials No. 21 - The Possibility of Variations 
in Tariff Rates to Secure Proper Standards of 'wages 
and Hours - 

Work Materials Ho. 24 - The Treaty-Making Power of the 
United States - 

Work Materials !To. 35 - Federal Regulation Through '...j 
the. Joint Employment of the Power of Taxation and the 
Spending Power - 

Work Materials Ho. 26 - Possibility of C-overiiment 
Contract Provisions as a Means of Establishing Eco- 
nomic Standards - 

Work Materials lTo. 29 - State Recovery Legislation in 
Aid of Federal Recovery Legislation — History and 
Analysis - 

At the back of the report will be foiond a brief statement 
of the studies undertaken oy the Division of Review. 

L. C. Marshall 
Director, Division of Review 

March 16, 1336 

- i - 




Would the War Power of the Federal Government Sustain 
Legislation Regulating Child Labor or Hours of Labor in 
the Various Industries of the Country'? 

MARCH, 1936 




Would the war power of the federal government sustain legis- 
lation regulating child labor or hours of labor in the various 
industries of the country: 

Applicable Articles of The United States 

Article I, Section 8: 

"The Congress shall have power: 

"To declare War, grant Letters of Marque and Reprisal, . 
and make Pules concerning Captures on Land and 'water; 

"To raise and suroort Armies, but no Appropriation 
of Money to that Use shall be for a longer terms than 
Two Years; 

"To provide and maintain a Eavy; 

"To make Rules for the Government and Regulation 
of the land and naval Forces; 

"To provide for calling forth the I.iilita to execute the 
Laws of the Union, sup-ores;-. Insurrections and repel In- 

"To provide for or anizing, armin^, and disciplining, 
the Militia, and for governing such ffart of them as 
may be employed in the Service of the United States, 
reserving to the States respectively, the Appointment 
of the Officers, and the Authority of training the Militia 
according to the discipline prescribed by Congress; 

"To make all Laws which shall be necessary and proper 
for carrying into 3xecution the foregoing Powers, and 
all other Powers vested by this Constitution in the 
Government of the United States, or in any Department 
or Officer thereof." 

OP III 1 01! 

It is thought that the direct relationship assumed by our 
-^hypothetical question to exist between child labor, or unduly long hours 



of labor and the maintenance of an adequate supply of able- 
bodied men for military purposes may justify peace time legis- 
lation to regulate matters which "by virtue of authoritative 
judicial "u-cmouncement have "been considered an integral part 
of the residuary powers confirmed to the st.ates "by the Tenth 
Amendment . ( Hammer v. Bagenhart , 347 U. S.' 251; Bailey v. Drexel 
Furniture Co., 259 U. S. 29). 

The theory is that such power is part of the quantum of 
sovereignty exercised "by the Lnglish Crown in times of peace and 
sixrrendered "by the states who inherited that sovereignty to the 
federal government on the adaption of the Constitution. 

The "pivotal inquiry" is, of course, the extent of the 
peace time power of the English sovereign as the result of our 
researches on this point may at the oxvtset dispose of the whole 
question. If the ;->ower is found to have existed, it then becomes 
necessary to determine whether it was transferred to the colonies 
and by the successor states to the federal government without 
limitation of any kind. In order that our inquiry be not consider- 
ed a frivolous one, we must necessarily assume arguendo the strong- 
est factual for the effect of these later practices on the 
citizens military capacity and indeed it would appear that sxich a 
case lias already been ma,de out (See Brief for Defendant in Error - 
Bunting v. Oregon , vol. 14, Case no. 38 Transcripts of Records ■ 
and File Copies of Briefs, U. S. Supreme Court, 1916 at pages -572 
to 604b). 

The mediaeval precedents establish that the king being en- 
trusted with the defense of the country could commit in time of 
war all sorts of trespasses upon private property such as the tak- 
ing of ships, money, men for the defense of the country. It was 
not until 1634, however, that Attorney General Hoy's writs extend- 
ed the old precedents by predicating the kings demand not in 
actual but on apprehended danger and sought to justify the exten- 
sion by the principle that prevention -as better than cure. 
Hoidworth (A History of English Law, Vol. 6, page 51) states: 
"it is perhaps arguable that there is some authority for this view 
in the case of The Kings Prerogative in Saltpetre (1607) 12 Co. 
Rep. 12) - at any rate this seems to have been the opinion of the 
Court of Appeal in 1915." The opinion referred to is found in re 
a Petition of Right C1915 T 3 K. B. 649. Lord Cozens - Hardy M. R. 
seemed to be of the opinion that the argument for Hampden in the 
famous ship-money case (discussed, infra ) confined the discretion 
of the crown within dangerously narrow limits. In dealing with 
the king's powers to enter on land in case of invasion, he said: 
"the existence of the "orero^ative was not distinctly challenged 
by counsel for the suppliants, but they sought to limit it-, to a 
case of actual invasion rendering immediate action necessary. 
In my opinion there is no foundation for this limitation of the 
prerogative. To postpone action until the enemy has landed, or 
unti'l the authorities are satisfied that a landing in a -narticu- 


lar neighborhood is imminent, would or might he fatal to the 
security of the realm." Holdsworth (op. cit. at p. 54) says that 
"this dictum :1s consistent with the views of the Court in the Case 
of Ship Money rather, than ruth the views of those who argued for 
Hampden and its correctness is therefore open to doubt" and that 
"it" is because the prerogative is so limited by common lav: that 
comprehensive Defense of the Realm Legislation is necessary". 

The ship levies aroused great opposition and the right to 
make the same was contested in the courts. The. Crown's conten- 
tions prevailed in Darnel's Cases (1627) 3 S. T. 1; Pates Case 
(1606)^2. S. T. 371 and Ifemden's Case (1637) 3 S. T. 823, where- 
in it was held that the Icing had large discretionary powers to 
imprison dangerous persons, to regulate trade and to act as he 
pleased to secure the safety of the country. The Case of Pro- 
c lamation (1611) 12 Co. Rep, 74, decided against the kind was 
ignored while the favorable decisions were extended beyond all 
bounds to support the system of prerogative rule (Holdsworth, 
op. at p. 54) . 

In the famous Harrnden Case (which the King in 1637, relying 
on the opinion of the judges in favor of its legality, allowed 
to be argued in the courts), the argument for Hampden was the 
distinction drawn between the case of a time of actually present 
danger and the case of a merely apprehended danger. It was 
admitted that in the case of actually present danger, such as 
invasion, the King can act as he pleases. But the country must 
be actually in danger, and the King's allegation that the country 
is in danger cannot give rise to the power. The Crown argued 
that the same principle must apply in, the case of apprehended 
danger or measures for the preservation of the state may be too 
late. The King is the sole judge as to the existence of danger. 
The extent of the discretionary power claimed for the King was 
allowed by the court. Holdsworth (op. cit. p. 53) criticizes the 
decision as making the King the sovereign power in the constitution 
though he voices the opinion that the argument for Hampden con- 
fined to discretion of the, Crown rithin dangerously narrow limits. 

As Holdsworth (A History of the Snglish 1-a^-r, Vol. 6, p. 30) 
points out, the uncertainty of English public law and the great 
obscurity which hung around the extent of many branches of the pre- 
rogative make it difficult to say whether the discretionary power 
claimed by the English monarchs was contrary to law or not, but 
that in any event, it was exercised not in order to increase the 
effectiveness of the executive, but in. order to render him 

In America it would seem that there are no precedents for 
prerogative rule by the independent states, probably due to the 
short interval between independence and the creation of the federal 
government, first under the Articles of Confederation and then under 
the Constitution. While under the Articles, the only element of 
the war power conceded to the central government was "to build and 




equip a navy" (for its land forces it was obliged to rely wholly 
upon requisitions made upon the states) it 'does not appear that 
the sovereignty thus reserved by the states was ever expressed 
in any of the prerogative forms attempted "by the English Mon- 
archy. If such had been the fact, doubtlessly a similar re- 
sistance thereto would have been encountered. 

Moreover, the spirit of the peculiar American constitutional 
system of apportionment of sovereign powers between the dual 
governments is contrary to the theory of the existence of any 
such prerogative power. The framers had in mind the traditional 
abuses of the' alleged royal prerogatives in time of peace and 
they legislated to the end of denying the existence of the pre- 
rogatives in either the federal government or the states. Amend- 
ment III provides that "no soldier shall in time of peace be 
quartered in any house without the consent of the' owner, nor in 
time of war but in a manner to be prescribed by law". This limita- 
tion is applicable to both sovereigns. Article I, Section X, 
Clause 3, prohibits the states from laying "any duty of tonnage in 
time of peace" as well as the keeping of ships of war in time of 
peace or engaging in war, etc. 

The case for prerogative peace time rule being as weak as it 
is, it seems only too evident that it could never overcome the 
additional limitation on the central government, implied though 
it be, which -is tha unique characteristic of our governmental 
form, viz., the Tenth Amendment (newly revitalized). If the war 
power were given the limitless construction contended for, the 
inevitable result would be the destruction of the dual form. 
Universal involuntary military training or conscription, the 
abolition of the liquor traffic, etc., could be accomplished 
through federal legislation. Indeed, it may be "jossible to make 
out a much stronger factual and scientific case for the abolition 
of the liquor traffic under the war power than for the elimination 
of child labor, as conceivably the effects the use of liquor (moder- 
ate or immoderate) on the citizen's military usefulness, are more 
direct than those of child labor. The War Prohibition Act sus- 
tained by the Supreme Court in Hamilton v. Ken tuck/ Distilleries & 
Warehouse Co ., 251 U. 3. 14S, S4 L. 3d. 194 (1919), although not 
a precedent for peace times, recognized this relationship in war 

The theory presently much in vogue that regulatory legisla- 
tion directed to evils in restricted industries and areas would 
overcome the objections of the Supreme Court to the type of compre- 
hensive regulatory legislation which it lias consistently stricken 
down in the past two years, appears to be -iredicated on the fallacy 
that degree rather than legal principle conditions the function- 
ing of the judicial ;process. 

Analogies to the broad interpretations given in the past 
to the commerce power ( Stafford v. Wallace , 258 U. S. 495; Chicago 
Board of Trade v. Olsen . 262 U. S. 1; Minnesota Hate Ceses , 230 
U. S. 352) which have permitted the federal government to regulate 



local matters burdensome or obstructive to interstate commerce 
are unavailing, as the Supreme Court has in its recent decisions 
on new deal legislation, particularly in the Sche enter Case , demon- 
strated 'that it "will not further extend the principles of these 
cases to the extent of obliterating the reserved powers of the 
states. Such would be the effect of the 'proposed interpretation 
of the war power. 

There is a body of law in this country relating to the war 
time powers of the government. These cases make it clear that 
in times of war the federal government does possess certain powers 
which, while theoretically subject to the inhibitions of the 
Constitution are practically in the nature of prerogative rule 
which overrides the police power of the states. However, they are 
emphatic in the statement that these powers exist only during the 
existence of war, or for such a period thereafter as may be necess- 
ary to demobilize the armed forces and industries of the country. 
It appears never to have been thought. that these powers existed 
in times of r>eace preceding a war. national Defense Acts like 
the one enacted in" the emergency of 1916. afford no precedent for 
the proposed effect, as the effect of these is simply to quicken. 

During the World War, the Congress passed as war measures 
such legislation as the War Prohibition Act, the national Prohibi- 
tion Act, the Selective Draft law, acts regulating the conduct 
of civilian individuals within military zones, disorderly houses 
and the sales of liquor within these zones, the sale of fuel and 
the necessities of life, and providing for the taking over and 
control of the transportation systems and t olograph lines. The 
War Labor Policies Board on July 19, 1918, adopted a resolution 
prohibiting the use of child labor on all work done pursuant to 
government contract, thus nullifying in part the effect of the 
decision of the Supreme Court in Hammer v. Dagenhart , suora , de- 
cided June 3, 1918, which invalidated a congressional prohibition 
in interstate commerce of child labor products. The National War 
Labor Conference Board recommended and President Wilson approved 
that the right of employees to organize in unions should 
not be denied and that employers should not 'discharge workers for 
membership in trade unions. This nullified the decisions of the 
Supreme Court- in' Coppage v. Kansas , 236 U. S. 1, and Hitchman Coal 
& Coke Co. v. "Mitchell , 245 U. S. 229, which had invalidated laws 
prohibiting the use of "yellow dog contracts" by employers. 

The regulation of all these matters, particularly the sale 
of intoxicating liquors, was ordinarily within the domaine of 
the state as part of the police power reserved to it ''o'j the 
Tenth Amendment. In Hannah £ Hogg v. Clyne , 263 F. 599, the war 
time prohibition acts were held unconstitutional, In so doing, 
the court said at pages 603 to 607: 

"In times of Congress has no police power 
of any kind, at any time, anywhere, except over 
territory which is peculiarly within its juris- 



diction, such as the District of Columbia, Alaska, 
army posts, and other places used solely for govern- 
mental purposes. Generally, as a proposition of lav;, . 
Congress had no power to regulate the selling of in- 
toxicating liquors, much less to restrict or prohibit 
their disposition within the confines of the several 
states. In Hammer, United States Attorney, v. Dagen- 
hart, 347 U. S. 251, 38 Sup. Ct. 529, 63 L. 3d, 1101, 
Ann. Cas. 19183, 724 (decided June 3, 1918), there 
came "before the Supreme Court of the United States 
an act of Congress prohibiting transportation in . 
interstate commerce of goods made at a factory 
in which children under 14 had "been permitted 
to work, or where those "between 14 and IS years 
of age had worked more than 8 hours in any one 
day. The "bill was filed against the district 
attorney to enjoin him from enforcing the law, 
which for the first offense fixed a fine of not 
more than $200, and for subsequent offenses of 
not less than $100 nor more than $1,000, or by 
imprisonment for not less than 3 months, or both. 
The court held the act unconstitutional, and sus- 
tained the injunction, which enjoined the United 
States attorney from enforcing it, saying: 

" 'The power of the states to regulate their purely 
internal affairs by such laws as seem wise to the 
local authority is inherent and has never been sur- 
rendered to the general government. ' 

"It would' be but a waste of time to cite further 
authority on this point. The constitution (article 
1, S 8) provides as follows: 

"Clause 1: 'Congress shall have power: ' 
"Clause 11: 'To declare war. ' 
"Clause 12: ''To raise and support armies.' 
"Clause 13: 'To provide and maintain a navy.' 
"Clause 14: 'To make rules for the government and regu- 
lation of the land and naval forces. ' 
"Clause 18; 'To make all laws which shall be necessary 
and proper for carrying into execution the 
foregoing powers, and all other powers 
vested by this Constitution in the government 
of the United States, or in any department or 
office thereof. ' 

"Congress was empowered, under section 8, to enact any 
lav; which it deemed necessary or proper to insure a 
successful termination of the war with Germany and its 
allies. Under that power acts were passed regulating 
the conduct of civilian individuals within military 



zones; disorderly houses and the sale of liquor were 
prohibited within those zones; the Selective Draft Law 
vjas passed; the taking over and control of the trans- 
portation systems and telegraph lines; the regulation 
of fuel and the necessities of life. In other words, 
the grant to Congress of the power to raise and support 
armies, considered. in conjunction with the power to de- 
clare war, to make rules for the government and regula- 
tion of the land and naval forces, and to make "all laws 
necessary and proper for the execution of the granted 
powers to commensurate with the emergency, and con- 
ferred upon Congress the right to do many things which 
in times of peace it could not have done. McKinley v. 
United States, 249 U. S. 397, 39 Sup. Ct. 324, 63 L. 3d. 

"A reading of the authorities and the history of the Con- 
stitution must lead one to the conclusion that Congress 
had the power, in time of war, to enact legislation which 
could check or curb, or limit or restrict, or prevent al- 
together, the sale of intoxicating liquors, and that in 
time of peace Congress had and has no such power. 

"The power - the .incidental power it may be called - of 
Congress, granted by clause 18 of section 8, so far as 
it relates to this case, must be liberally construed to 
meet every emergency or contingency definitely related 
to the carrying on of the war* The exercise of that 
power should be tested ''o-j the one question: Is what 
was done in the interest of the general welfare of this 
country and its people? 


"Conceding, as we must, that Congress, aiming toward a 
successful termination of the war, had the right and 
power to enact a police regulation for the general wel- 
fare of all the people, the courts may not substitute 
their judgment for that of the legislative body as to 
the existence of the emergency for, or the propriety 
of, the legislation to. that end. 

"'But by whom, or by what, authority, is it to be de- 
termined whether the manufacture of particular articles 
of drink, either for general use or for the personal use 
of the maker, will injuriously affect the public? Power 
to determine such questions, so as to bind all, must exist 
somev/here; else society will be at the mercy of the few, 
who, regarding only their own appetites or passions, may 
be willing to imperil the peace and security of the many, 
provided only they are permitted to do as they please. 
Under our system that power is lodged with the legislative 


"branch of the government. It belongs to that department 
to exert what are known as the police powers of the state, 
and to determine,, primarily, what measures are appropriate 
or needful for the protection of the public morals, the 
public health, or the public safety.' Iviugler v. Kansas, 
123 U. 3. 623, at page" 660, 8 Sup. Ct. 273, at page 296 
(31 L. 3d. 205). 

"It is only when under the cloak of the police power 
the legislative body does not act in the general wel- 
fare, but proceeds arbitrarily to regulate or prohibit 
a 'trade, business, or vocation, otherwise recognized 
'as lawful : in the community,' that the courts may inter- 

"'It is always a judicial question if any particular 
regulation of such right is a valid exercise of police 
power, though the power of the courts to declare such 
regulation invalid will be exercised with the utmost 
caution, and only where it is clear that the ordinance 
or law 'declared void passes the limits of the police 
powers, and infringes upon rights guaranteed by the 
Constitution.' Dobbins v. Los Angeles, 195 "U. S. 223, 
at page 238,' 25 Sup. Ct. 18, at page 21 (49 L. 'Ed. 

The court rejected the contention that the war pov;er of Con- 
gress expired the moment there had been a cessation of actual com- 
bat, but held that it continued until there had been a demobilisa- 
tion of the armed forces and of industry. 

In Hood Rubber Co. v. Davis , 151 II. 3. 119, 255 Mass. 200, 
Executive Orders by the President of the United States issued in 
October 30, November 5 and November 12, 1919, which purported to 
revise orders formerly issued during the World War under the pro- 
visions of the Lever Act, 40 U. S. Stats, at Large 276, were held 
without warrant in law and to furnish no defense to an action against 
the Director General of Hailroads under the Transportion Act (41 U. 
S. Stat, at Large 461) by the owner and consignee of coal which was 
delivered to the defendant between October 30, 1919 and February 16, 
1920 and was confiscated by him under authority which he assumed 
was conferred on him by such orders. In holding that the restora- 
tion order of October 30, 1919 could be issued only if a state of 
war continued, the court said at pages 204 and 205: < 

"The Liver Act conferred upon the President certain 
powers to regulate the prices and distribution of 
fuel, to be exercised for the efficient prosecu- 
tion of the war. Under section 25 of the act the 
restoration order of October 30 could be issued only 
if a state of war continued, and the order was issued 
as a war measure. On Janus. 17/ 31, 1919, shortly after 



the Armistice, substantially all regulations as to 
prices and distribution of coal were suspended and 
the Administrator ceased to function. The restoration 
of the former order on October 30, 1919, in anticipation 
of a strike in both hard and soft coal mines, and the 
delegation of power to the Director General of Bail- 
roads to divert coal upon the railroads as might seem 
necessary in the then present emergency to provide for 
the requirements of the country, were not in any way 
connected with the war; they affected but a part of 
the community, and the use of a commodity which tho 
government lias not attempted to regulate. The execu- 
tive orders of the President issued October 30, Novem- 
ber 5, and November 12, 1919, were not within the 
power conferred upon the President by the Lfefer 
Act. ...."■ 

The Hood Rubber Company Case is in every material particular on 
all fours with the decision of the Supreme Court in Davis v.ITewton 
Coal Co ., 267 U. S. 292, affirming 281 Pa. 74, 126- A. 192. In 
this case the plaintiff's coal was commandeered by the Director 
General of Railroads (acting under the same orders of the Fuel 
Administrator as were involved in the Hood Case) who sought to 
pay the plaintiff the prices fixed by the Fuel Administrator in 
the orders which were the same as the prices named in plaintiff's 
contracts. It was held,. however, that the plaintiff was entitled 
to be paid the difference between the prices it paid to its ven- 
dors and the market value which was higher. The court thus im- 
pliedly recognized the invalidity of the post war orders, and it 
affirmed the decision of the Supreme Court in Pennsylvania which 
held that the war with Germany had ceased prior to October 30,1919, 
and that the purpose of the Presidents order then issued was to 
meet an emergency incident to the miners' strike - not to provide 
for the efficient prosecution of the war. 

In Public Service Commission of the State of New York v. New 
York Central Railraod Co ., 185 N. Y. S. 267, 193 Aop. Div. 615, 
affd. 129 N. 3. 455, 230 N. Y. 149, the question involved was 
whether an order of the State Public Service Commission directing the 
railroad company to restore a two cents a mile passenger rate which 
had been superseded by a three cents a mile rate fixed by federal 
legislation under the war power (Federal Transportation Act of 
1920). It was held that the war power began and ended with the 
necessities created by the war, and that it did not include the 
power to legislate in matters belonging of right under the Tenth 
Amendment to the states such as the intrastate regulation of 
common carriers. In holding the order of the State Public Ser- 
vice Commission to be paramount, the New York Court of Appeals 
said at pages 152-155: 

"On December 28, 1917, under authority of an act 
of Congress the President entered into 'possession, 
use, control and operation' of the New York Central 
Railroad and later fixed a rate of fare upon that 



road, for all passengers, at three cents a mile. 
This action was not justified "by any of the ordinary 
rules of law. It can be sustained solely as the 
exercise of the war powers of the United States. 
And these poWeis are not limited "by these ordinary 
rules'. They are not "bounded "by any specific grant 
of authority. They are not unlike what in the states 
we call the police power, "but the police power raised 
to the highest degree. They are such powers as are 
essential to preserve the very life of the nation it- 
self. When requisite to this end the liberty of the 
citizen - the protection of private property - the 
peace-time rights of the states must all yield to 

"That the Federal Control Act (U. S. Conp. St. 1918, 
U. S. Comp, St. Ann. Supp. II 3115 3/4a-3115 3/4p) 
was a proper exercise of these -powers- — -that as inci- 
dent to the control of the roads, the question of 
fares intra- as' well as inter-state was lodged ex- 
clusively in the ^resident - has been held by the 
Supreme Court. Eorthern Pacific Ry. Co. v. Horth 
Dakota, 250 U. S. 135, 39 Sup. Ct. 502, 63 L. 3d. 
897. The owners, however, did not lose their proper- 
ty. Their rights over it were suspended. And so as 
to the states.-- Any regulations they might have made 
as to the operation of the roads, any powers they 
possessed over intrastate traffic, any contract obliga- 
tions vested in them, were merely suspended while the 
general government was in possession. 

"The time came when the necessity - the basis of the 
war power - 'ceased. The roads were to be returned to 
their owners; the states were once more to exercise 
their accustomed authority. Yet the process of re- 
adjustment was complex. And the power to seize the 
■roads carried with-it such reasonable power as was 
needed to bring about that readjustment in an orderly 
and equitable manner. The government had operated com- 
peting roads as part of one system. It has distributed 
cars as its needs required. It had increased the wages 
of employees. It had fixed the rates of fare both inter- 
state and intrastate. The public good required that the 
normal state of affairs should be re-established with 
the least possible disturbance. Congress was well with- 
in its rights, therefore, when it provided that the 
tariffs in force on February 29, 1920, should Continue 
until thereafter changed by state or federal authority, 
respectively, or pxirsuant to authority of law, and in 
no case should be reduced before September 1, 1920, with- 
out the approval of the Interstate Commerce Commission. 



"Obviously the purpose of this clause, so far as the 
states were concerned was to maintain fares until Sep- 
tember 1st and thereafter until, in view of possible 
new conditions, affirmative action was taken by the 
state authorities. The thought was that in many 
instances local rates had been fixed by local commfe- 
sions with a view to costs and earnings as they existed 
prior to 1917. Let them act if they desired to re- 
store the old rates. It is equally obvious that when 
such action was taken is immaterial, if the actual 
reduction did not take effect until September 1st. 
In a case like that of the defendant, where the rate 
is a condition of the charter, or in a case where 
the rate is fixed by statute, there would seem to be 
less purpose in such a provision. Possibly it seemed 
wise in all cases to give the roads formal warning 
of reversion to the old state of affairs and an 
opportunity to make and file the necessary tariff 
schedules. In any event, Congress made no excep- 
tion to the general rule. 

"Therefore the Hew Y rk Central Eailroad Company 
might continue existing rates until some change 
was required by the state of federal authorities 
or pursuant to authority of law, or, as we con- 
strue the language as it affects New York, by 
the action of the Interstate Commerce Commission, 
or the Public Service Commission, within the limits 
of their respective powers, or by the action of 
somebody having jurisdiction over the railroad 
and the subject-matter of rates. Such action, 
however, lias now been taken. As we have said, 
the obligation of the defendant to carry way 
passengers for two cents a mile lias not been de- 
stroyed. It was temporarily suspended. It was 
always subject to this possibility under the war 
povrer, if it became necessary. But when the sus- 
pension ceases, it revives with all its original 
force. The suspension does cease, in the language 
of the statute, when the three-cent rate is 'chang- 
ed by state authority. ' That authority over intra- 
state rates is the Public Service Commission. Any 
charge made by a public service corporation in 
excess of that allowed by lav; is prohibited. Pub- 
lic Service Commissions Lav/ (Consol. Laws, c. 48) 
TS 26. And if the commissioners shall after a 
hearing be of the opinion that any fare demanded 
is in violation of any provisions of law, it 
may determine the proper fare to be thereafter 
charged. Section 49. This is precisely what the 
Commission has done. True, the defendant hitherto 
was authorized to charge three cents a mile for 
local fares between Albany and Buffalo. In a sense 



that far 'was allowed oy lav/ 1 ; but the law our 
statute refers to is our lav; still in existence, hav- 
ing all its ancient force when the war powers of the 
United States cease. And they do cease when our Com- 
mission acts. " 


The writer of this memorandum is of the opinion that the v?ar 
power of the Federal Government would not sustain legislation regulating 
child labor or hours of labor in the various industries of the country. 


orncz: of fatiofal ffjcoyfuy admifisteatioit 



Memorandum of Law Concerning the Authority of Congress to Utilize 
Its Constitutional Power to Establish Post Offices end Post Foads 
as a Fasis for Legislation Prohibiting Use of the Fails or of 
Post Foads to Zinployars or Industrial Units Which Fail to Comply 
with I'ederal Minimum Wage, Maximum Fours of Labor, or Fair Trade 

P r ac tice St andards 

MARCH, 19 06 




I. rlistorical Foreword. 
II. The ITature of the Power. 

1. Exclusive or concurrent? 

2. Constitutional limitations on the power. 

3. The prohibition of private agencies. 

4. The case of Ex parte Jachson considered. 
3. Other cases considered. 

6. The exclusion of lottery tickets from the mails. 

7. The exclusion of publications from mail -orivileges. 
£. Delegation by Congress to the Postmaster General of 

the "lower to designate places where the mails shall 
be received and delivered. 
9. The right to use the mails as a right to carry on 

10. The power to ->olice the mails. 

11. Instances where prohibitions against use of the mails 
were sustained by the Supreme Court. 

12. Franchises to construct na-tural highways and bridges. 

13. The First, Fourth, Fifth md Tenth Amendments as 

III. The Eight to Exclude from the Use of the Mails. 

IV. Other Aspects of the Power. 

V. The Use of the Postal Power in Hew Deal Legislation. 

1. Section 5 of the Securities Act of 1933. 

2. Section 4 of the Public Utility Act of 1935. 

3. The cases of Jones v. Securities and Exchange 
Commission and In the Hatter of American States 
Public Service Co., debtor, considered. 

4. The state blue sly laws considered as a precedent. 

5. The due process inhibition of the Fifth Amendment. 




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Can Congress utilize the power granted to it by Article I, Section 
8, Clause 7 of the Federal Constitution "to establish post offices and 
nost roads" as a basis for legislation prohibiting use of the mails or 
of post roads to employers or industrial units which fail to comply with 
federal miiiimum wa,ge, maximum hours of labor, or fair .trade -practice 


I. historical Foreword. 

A review of the records of the Constitutional Convention fails to 
disclose any consider'- "ble discussion in regard to article I, Section 3, 
Clause 7 which provides that Congress shall have the -power to establish 
-post offices and -post roads. The report of the Committee on Style of 
the Constitutional Convention shows provisions reading "to establish, 
post offices and post roads" (Pecords of Federal Convention, Farrand, 
Vol. P, p. 5S5). The Journal of Thursday, August 16, 1737 shows that 
the words "and post roads" were added to the words appearing in the 
Constitution as first proposed (P.ecords of Federal Convention, Farrand, 
Vol. 2, pp. 303-504 and 5S9) and the Constitution as finally adopted 'o^/ 
the Convention on September '17 , 17"7 empowered Congress to establish both 
post offices and post roads. (p.ecords of Federal Convention, Farrand, 
Vol. P, p. 555) . 

The power was regarded as a harmless one as appears from tP.e 
following comment in the Federalist Po . XLII: 

"Tlie power of establishing post roads must, in every view be a 
harmless power; and may,: perhaps, by Judicious management, become 
productive of great public conveniency. nothing which tends to 
facilitate the intercourse between the states can be deemed un- 
worthy of the nublic care." 

Perhaps for this reason no great pains appear to have been taken 
to ezrpress clearly the object of the power. As Poineroy on Constitutional 
Lav/, Section Pll , states: 

"Po other constitutional grant seems to be clothed in words which 
so poorly express its object, or so feebly indicate the particular 
measures which may be a.dopted to c : rry out its design. To establish 
post offices and post roads is the form of the grant; to create and 
regulate the entire -postal system of the country, is the extent in- 



One of the first judicial references, if not the first, to the 
power is that found in I.icCulloch v. I.'aryland , 4 Wheat. 316, (181S) , 
where Chief Justice Marshall in explaining the theory of irmlied powers 
used the postal ~ower as a convenient illustration. Thus at pace 417 
he said: 

11 Take'; for example, the power 'to establish post-offices and post 
roads. 1 This power is executed, by the single act of making the 
establishment. But, from this has been inferred the power and 
duty of Carrying the mail along the -oost-road, from one post-office 
to another. And from this implied power, has again been inferred 
the right to punish those who steal letters from the ^ost-office, 
or rob the mail. It may be said, with some -plausibility , that the 
right to carry the mail, and to punish those who rob it, is not 
indispensably necessary to the establishment of a post-office and 
nost-road. This right is indeed essential to the beneficial exer- 
cise of the power, but not indis-oensably necessary to its existence. 
So, of the punishment of the crimes of stealing or falsifying a 
record or process of a court of the United States, or of perjury 
in such court. To punish these offences, is certainly conducive 
to the due administration of justice. But courts may exist, and 
may decide the causes brought before them, though such crimes ex- 
c ap e "runi shmen t . " 

The historical development of the power from a mere governmental 
monopoly of the right to carry the mails to one which has supported many 
regulatory measures (with more than incidental effect on purely local 
activities) has come aboxit (similarly to the development of other con- 
stitutional powers) through the a.p-VLication of the general principle 
that the extent of the delegated powers is not to be determined \>j the 
necessities of the powers at the- time the constitution was adopted bytt 
by the exigencies of future contingencies. The best statements of this 
principle are doubtlessly those found in The Federalist Ho. XXXIV, in 
iicCulIoch v. Maryland, 4 Wheat, 316, 415 and in Pensacola Telegraph Co. 
v. Union Telegraph Co. , 96 U.S. 1, 24 L. Ed. 708. Hamilton writing in 
The Federalist (supra), in discussing another provision of the Con- 
stitution said: 

11 . . .we must bear in mind that we are not to confine our view to 
the present period, but to look forward to remote futurity ... 
nothing, therefore, can be more fallacious, than to infer the ex- 
tent of any power proper to be lodged in the national government, 
from an estimate of its immediate necessities. There ought to be 
n capacity to provide for future contingencies, as they may happen; 
and as they are illimitable in their nature, so it is impossible 
safely to limit that capacity." 

In I.icCulloch v. Maryland , supra , Chief Justice Marshall (also dis- 
cussing another provision) said at 415: 

11 ... This provision is made in a. constitution, intended to en- 
dure for ages to come, and consequently, to be adapted to the var- 
ious crises of human affairs. To have prescribed the means by 
which government should, in all future time, execute its powers, 



wotild have "been to change, entirely, the character of the instru- 
ment, and give it the prOTerties of a. legal code. It would have 
"been an unwise attempt to orovide, by immutable rules, for exi- 
gencies which, if foreseen at all, must have "been seen dimly, and 
which can be best provided for as they occur. ..." 

In Pensacola. Telegraph Go. v. Union Telegraph Co . , supra , the 
Supreme Court in discussing this very -nower said (p. 9): 

"The powers thus granted are not confined to the instrumentalities 
... or the costal service known or in use when the Constitution was 
adopted, but they keep -oace with the "-ro^ress of the country, and 
adapt themselves to the new developments of time end circumstances." 

Aside from the grant of this power, it would seem that Congress 
would have had the r>ower to control the malls between the states at 
least, a.s incidental to the regulation of commerce. In Pensacola Tele - 
graph Co. v. Union Telegraph Co . , supra , it wa.s held that the trans- 
mission of telegraphic messages was not only an operation under the 
i->ower to establish post roads but was commerce and as such, when inter- 
state, subject to congressional regulation. 

The development of this power can be more adequ.ately tra-ced under 
the subsequent headings hereof as it is inextricably interwoven with 
such ,%rea.t constitutional questions as the reserved power of the states 
under the tenth amendment, the right of the people to be secure in their 
papers against unreasonable searches and seizures, the freedom of the 
press, etc. 

II. The ITa.ture of the Power. 

One of the early views of trie power was that by this grant Congress 
was given the power only to designate the routes over which the mails 
should be carried and the ^ost offices where they should be received and 
distributed and that it did not provide the authority to construct and 
opera/te agencies for the carrying and distributing of mails. Vol. 2, 
■Jilloughby on The Constitution of the United States., 1102. President 
Monroe wrote to Congress in connection with "his veto of hay 4, 1822 of 
the Cumberland Ho ad Bill as follows: 

"We are satisfied that all of them (a number of our enlightened 
citizens) would answer that a power was given thereby to Congress '• 
to fix on the towns, courth r uses and other places, through our 
Union, at which there should be "lost offices; the routes 'oir which ' 
the mails should be carried from one -cost office to another, so as 
to diffuse intelligence as extensively, -rid to make the institution 
as useful as -oossible; to fix the postage to be paid on every letter 
and packet thus carried to support the establishment; and to pro- 
tect the post offices and ma.ils from robbery, by punishinjj those 
who should commit the offense. The idea of the right to lay off 
the roads of the United States on a general scale of improvement, 
to take the soil from the proprietor by force; to establish turn- 
pikes and tolls, and to punish offenders in the manner sta/ted above 
would never occur to any such person. The use of the existing roa.d, 

9 309 


by the stage, mail carrier, or post-toy, in passing over it, as 
others do, is all that would "be thought of; the jurisdiction and 
soil remaining to the State, with a right in the State, or there 
authorized by its legislature, to change the road at pleasure." 

See also 4 Elliot's Debates 279, 233 and 354 for the same view. 

The view opposed to this was that the power was not exhausted by 
these modes of exercising the power and that it comprehended the right 
to make or construct any roads which Congress might deem proper for the 
conve;-ance of the mail and to keep them in due repair for such purpose. 
In his Commentaries On The Constitution (2nd ed.) Chap. XVIII, Story 
argued persuasively for this second or liberal interpretation. 

The broader view has been sustained by the courts. In the case of 
Ex Parte Jackson . 96 U.S. 727, a restricted interpretation was definitely 
rejected. In upholding the right of Congress to exclude from the mails 
letters or circulars concerning illegal lotteries, the court approved 
a liberal view. Thus the court said at page. 732: 

"The power vested in Congress 'to establish post-offices and post- 
roads' has been practically construed, since the foundation of the 
government, to authorize not merely the designation of bhe routes 
over which the mail shall be carried, and the offices where letters 
and other documents shall be received to be distributed or for- 
warded, but the carriage of the mail, and all measures necessary 
to secure its safe and speed;" transit, and the prompt delivery 
of its contents. ..." 

In California v. Central Pacific P. P, Co *. 127 U.S. 1, 32 L. Ed. 
150, the power of Congress to construct or to authorize individuals to 
construct railroads across the States and Territories was involved. 
This power the Supreme Court held was implied not only in the power to 
regulate commerce but in the powei" to provide for postal accomodations 
and military exigencies. 

iioreover, the courts since have recognized broader limits than even 
Story contended for, though the full extent of the power may not be 
known until the Supreme Court passes on recent ITew Deal legislation 
wherein r much more comprehensive use thereof than before known to the 
law is contemplated. 

Logically, the next inquiry after that relating to the extent of 
the power is whether it is an exclusive power or is concurrent in the 
states. Story , supra , sec. 1150, did not regard this as an important 
inquiry because it was admitted on all sides that even if it v/ere con- 
current in the state, it could be exercised only in subordination to 
the power of Congress. According to one commentator cited by him (I 
Tuck Black Coram. App. 2SC) the power was concurrent though subordinate 
and a state might therefore establish a post road or post office on any 
route where Congress had not established' any, but according to another 
commentator (P.awle on the Constitution, Ch. 9, p. 103, 104-) the power 
was exclusive in Congress. 



Undoubtedly the federal government may monopolize for itself the 
"business of carrying mail m tter, for, in all countries this monopoli- 
zation has been practiced by governments, ffiillonghby , supra , section 
65). Thus in United States v. "ochs^or^r , 26 Ted. Cas. 803 (i860), 
the court said: 

"ho government has ever organized c system of posts 
without securing go itself, to some extent, a monopoly 
of the carriage of letters and mailable packets." 

The mere existence of a governmental postal system, however, does 
not imply the existence of a governmental monopoly, as the court 
pointed out, but that exists only when there is statutory provision 
to that effect, which- provision h s been made in the United States 
and. is now found in Sections 179 to 188 of the Penal Code of the United 
States. (18 U.S.C.A. seas. 301-311). 

Thus Section 179 of tire Criminal Code (18 U.3.C .A. 302) provides 
that "whoever, without authority from the postmaster General shall set 
up or profess to keep any office or place of business bearing the sign, 
name, or title of post office, shall be fined not more than $5C0." 
Section 181 of the" Criminal Code (18 U.S.C.A. 304) provides that "who- 
ever shall establish any private express for the conveyance of letters 
or packets, or in any manner cause or provide for the conveyance of 
letters or packets, or in any manner cause or provide for the convey- 
ance of the same by regular trips or at stated periods over any post 
route which is or may be established "by law, or from any city, town, 
or place , to any other city, town, or place, between which the mail is 
regularly carried, or whoever shall aid or assist therein shall be 
fined not more than 3500. or imp.risom-.icnt not more than six months or 
both." Section 183 of the Criminal Code (18 U.S.C.A. 306) provides 
that "whoever shall transmit by private express or other unlawful means, 
or deliver to any agent thereof, or deposit or cause to be deposited 
at any appointed piece, for the purpose of being so transmitted, any 
letter or racket*, shall be fined not more than $50." 

These Sections and others in pari materia prohibiting the estab- 
lishing of private expresses have been upheld. United Sta.tes v . Thomp- 
son , (D.C.Mass. 1846) 28 Ted. Cas. : Uo. 16,489, United States v. Sasson, 
18 IT. 590, Tlackham v. Grcsham , 16 P. 609, 21 Op. Atty. Gen. 394, 4 Op. 
Atty. Gen. 159. 

The case of United States v. EaBson , supra , involved the ownership 
and management by a private person for his private benefit and profit 
and not as a branch- of the public service of a private express. The 
defendant's business was to employ a corps of messengers for the purpose 
of going .about the City of Hew York to the stores end offices of all 
his customers, collecting letters daily, generally tvro or three times 
a day, for delivery anywhere b twecn the lattery and khrlcm. Stamps 
similar tc postage stamps w.-r; furnished and sold to' such customers 
beforehand, which, on being affixed to the letters, entitled them to 
delivery by the defendant according to the course of his business which 
was to bring all the letters thus collected to his office, then to send 
them out into packages, to male: up conv nicnt routes for delivery, to 
dispatch the letters by messengers sent out for that purpose who took 



on their routes the letters of all the persons whose letters had "been 
brought to the central office. The defendant was held to be violating 
Section 181 of the Criminal Code. 

While not expressly applicable to the states, the use of the 
general pronoun "whoever" throughout these Sections v/ould indicate the 
existence of an all comprehensive congressional intent, which, even 
if it were not to be -construed as comprehending the states would 
certainly operate on any individual employee of the state engaged in 
the conduct of postal operations, as no exceptions arc made in favor 
of such employees* Thus the Sections apply to any "owner;, driver, 
conductor, iaastcr or oth r person having charge of a conveyance of ".ny 
kind used to carry letters and packets" (18 U.S.C.A. 307) and even to 
the transmitter by private express of "letters and packets". (18 U.S. 
C,A, 306). The obvious intent is to eliminate competition from all 
sources in conflict with the federal postal system. 

It is thus difficult -to understand the suggestion by Vlilloughby , 
supra , Section 654, that it would appear from the case of Lx Parte Jack- 
son , 96 U.S. 727 (1878) that the states "may permit , or themselves pro- 
vide for the carrying of letters or merchandise in other ways, as for 
instance, '^y express companies and this too with reference to materials 
excluded by Congress from the mails as immoral, fraudulent or otherwise 
objectionable", though not for natter treasonable to the United States. 

This view probably is based on a certain dictum of the court at 
page 735. After calling attention to the f ct that in 1836 the question 
of the power of Congress to exclude certain publications from the mails 
had b en discussed in the Senate and that the prevailing view had been 
that Con rcss had not this power the court continued at page 735: 

"Great reliance is placed by the petitioner u >on these 
views, coming, as they did in many instances, from men 
alike distinguished as jurists and statesmen, hut it is 
evident that they were founded upon the assumption that 
it was competent for Congress to prohibit the trans- 
portation of newspapers end pamphlets over postal-routes 
in any other way than by mail; and of course it would 
follow, that if, with such a prohibition, the trans- 
portation in the could also be forbidden, the cir- 
culation of the documents would be destroyed, and a fatal 
blow given to the freedom of the press. But wc do not 
think that Congress possesses the' power to prevent the 
transportation in other ways, as merchandise, of matter 
which it excludes from the mails. To give efficiency to 
its regulations and prevent rival postal systems, it may 
perhaps prohibit the carriage by others for hire , over 
postal routes, of articles' which legitimately constitute 
mail matter, in the sense in which those terms wore used 
whe the Constitution was adopted, consisting of letters, 
and of newspapers and pamphlets, when not sent as merchan- 
dise; but fr.rthor than this its power of prohibition can- 
not extend." 

In our opinion this dictum stands for nothing more than the 


£5 J. 

proposition that while Congress may exclude certain materials and 
merchandise other than letters or packets from the nails, it nay not 
prevent the transportation of the same in other ways. The dictum, 
however, does not touch on the right of Congress to prevent the trans- 
portation in other ways, whether by state postal systems or by private 
expresses of "letters and packets", and certainly Congress in Sections 
179 to 186 of the Criminal Code of the United States (18 U.S.C.A. sec. 
301-311) lias legislated on the assumption that it had such power. 
Furthermore the language of the Supreme Court in Ex Parte Rapier , 143 
U.S. 110, 35 L. Ed. 93 (189;;:), clearly indicates that there has been 
a surrender by the states to the Congress of the power to establish 
post offices and post roads. The Court said at page 134: 

"The states before the Union was formed could establish 
post-offices and post— roads", and in doing so could bring 
into play the police power in the protection of their 
citizens from the use of the means so provided for pur- 
poses supposed to exert a demoralizing influence upon 
the people. When the power to establish post-offices 
and post-roads was surrendered to the Congress it was as 
a complete power, and the grant carried with it the right 
to exercise all the powers which made that rower effective.. 

In any event if any state were to attempt to establish a postal 
system or private exoress to carry letters and- packets, the citizens 
of. the state who attempted to use it might run the risk of a. criminal 
prosecution under 18 U.S.C.A. - 306. The question is merely academic, 
however, as no state has over attempted the exercise of the postal 
power; and as Story said ( supra , page 79): 

"It is highly improbable that -any state will attempt 
any exercise of the power, considering the difficulty 
of carrying it into effect without the cooperation of 

It is thus a safe conclusion that the power is in principle and prac- 
tice an exclusive power of Congress. 

III. The Right To Exclude From the Use of The Mails. 

This right is subject to general constitutional prohibitions. 
Villoughby (Vol. 2, The Constitution of The United States, p. 1105, 
HOC; 1929 ed.) discusses the subject as follows i 

"... In general it may be said that exclusion from the 
mails is more easily defended, and, perhaps, is more ex- 
tensive than it is in the of interstate commerce, 
unless it be held, as has not yet been expressly and ex- 
plicity held, that the very right to engage in interstate 
commerce is a distinctively Federal right, that is, that 
it is of Federal origin and creation, and, therefore, 
may be .ranted or withheld upon such conditions as Congress 
may see fit to impose. The author is not acquainted with 
a case in which it has been held, in explicit terms, that 
the right to send or receive matter in or through the mails 

, 9809 • 

owes its existence to Federal law, "but it is certain 
that, if such a, right were to 'be deemed one existing 
independently of Federal action, it would 'be an abso- 
lutely empty and purely abstract one v/ere it not for 
the postal facilities supplied and operated "by the 
Federal Government. From the fact that., as regards 
the mails, the facilities for their transmission are 
exclusively supplied "by the Federal Government itself, 
which is not the case with reference to interstate com- 
merce, it might be argued that Congress may determine 
in a more arbitrary manner what shall and shall not be 
carried in the mails than it constitutionally can with 
regard, to interstate commerce which it regulates rather 
than creates the right to engage in, and the instrumental- 
ities for the carrying on of which it does not supply or 

"However, in any case, it would seem that Congress, in 
exercising whatever power it may possess to exclude 
matter from the mails, is limited by those general 
. . , , limitations and prohibitions which, by the Federal Con- 
stitution, are placed upon the exercise of its enumerated 
powers by Congress. And thus there have arisen numerous 
cases in which there has been raised the question whether 
an exclusion from the mails, including the means provided 
for enforcing that exclusion,, have not violated the pro- 
hibitions of the Constitution with reference to the denial 
of due process of law, the abridgement of freedom of speech 
and the press, the prohibition of unreasonable searches 
and seizures, etc. ..." 

The right to use the mails is of the same nature as the right to 
carry on business, which the Supreme Court lias been desirous.™' to protect 
against arbitrary deprivations, ( Adair v. United States , 208 U.S. 161 
(1908) 52 L. Ed. 436'. Coppage v. Kansas , 236 U.S. 1 (1915), 59 L. Ed, 
441. Adams v. Tanner , 244 U.S. 590 (1917), 61 L. Ed. 1336. Allgeyer . 
v. Louisiana , 165 U.S. 578 (1897), 41 L. Ed. 832.) The right which 
Congress has granted to all properly circumstanced persons to use the 
mails is a substantial right, ( Hoover v. LicChesny , 81 Fed. 472.) and 
independent of the discretion of the Postmaster General. That right, 
and the conditions upon which it may be exercised are defined and rest 
wholly upon mandatory legislation of Congress. United States v. Burleson , 
255 U.S. 407, 65 L. Ed. 704). The right, however, is subject to the 
power to police the mails as an incident of the postal power. Thus 
Congress may exclude from the mails matter which is dangerous or which 
carries on its face immoral expressions, threats, or libels. It may 
go further, and through its power i>f exclusion exercise, within limits, 
general police power over the material which it carries, even though 
its regulations are entirely unrelated to the business of transporting 
mails. ( in re Rapier , supra; Lewis publishing Co. v. Morgan , 229 U.S. 
238, 57 L. Ed. 1190 (1913). 

"Nevertheless, the postal power, like all the other powers of 
Congress is subject to the limitations and the prohibitions placed by 
the Fifth Amendment to the Constitution upon the Exercise of the enumerated 


powers of Congress. ( Burton v. United States , 202 U.S., 344, 371 (1906), 
50 L. Ed. 1057, 1067.) 

In Ex Parte Jacks on, surra, the power of Congress 
to exclude lottery tickets from the mails was questioned. The court 
held that the postal power extended to the right to determine what 
should "be carried, its classification, weight, form and charges to "be 
made and that the right to designate what shall "be carried necessarily 
involved the right to determine what shall be excluded. This it did 
in the following language at page 752: 

"...The validity of legislation prescribing what should 
be carried, and its weight and form, and the charges:, to 
which it should be subjected, has never been questioned. 
What should be mailable lias varied at different times, 
changing with the facility of transportation over the 
post-roads. At one time, only letters, newspapers, maga- 
zines, pamphlets, and other printed natter, not exceeding- 
eight ounces in weight, were carried; afterwards boohs 
were added to the list; and now small packages of merchan- 
dise, not exceeding a prescribed weight, as well as books 
and printed matter of all kinds, are transported in the 
.mail. The power possessed by Congress embraces the regu- 
lation of the entire postal system of the country. The 
right to designate what shall be carried necessarily in- 
volves the right to determine what shall be excluded. ..." 

The court then pointed out that the difficulty attending the 
subject arose not from the want of power in Congress to prescribe 
regulations as to what shall constitute maul matter, but from the 
necessity of enforcing them consistently with rights reserved to the 
people, of far greater importance than the transportation of mail. 

The first of these rights considered was the constitutional 
guaranty of the Fourth. Amendment against unreasonable searches and 
seizures. The court in disposing of objections based on this ground 
said at pp. 732, 733: 

"... In their enforcement, 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, such as newspapers , maga- 
zines, pamphlets, and other printed matter, purposely 
left in a condition to be examined. Letters and sealed 
packages of this kind in the mail are as fully guarded 
from examination and inspection, except as to their out- 
ward form and weight, as if they Were retained by the 
parties forwarding them in their own domiciles. The con- 
stitutional 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 bo opened and examined under like warrant, 
issued upon similar oath or affirmation, particularly 


describing the thing to "be 'seised, as, is required when 
papers are subjected to search in one's own household. 
l 7 o law of Congress can place in the hands of officials 
connected with the postal 'service any authority to in- 
vade the secrecy of letters and such sealed packages 
in the mail; and all regulations adopted as to mail 
matter of this hind must he in subordination to the 
great principle embodied in the fourth amendment of 
the. Constitution." 

PP. 735, 736: 

"Whilst regulations excluding matter from the mail can- 
not be enforced in a way which would require or permit 
an examination into letters, or sealed packages subject 
to letter postage, without v/arrant , 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 the parties 
receiving the letters or packages , or from agents de- 
positing then in the post-office, or others cognizant 
of the facts. And as to oo jectionable printed matter, 
which is open to examination, the regulations may be 
.enforced in a similar way, ''ay the imposition of penal- 
ties 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 n obscene picture or print. In such 
cases, no difficulty arises, and no principle is violated, 
in excluding the prohibited articles or refusing to -for- 
ward them. The evidence respecting them is seen by every 
is in its nature conclusive." 

The court next considered objections based on the constitutional 
guaranty of the First Amendment which prohibits the enactment of laws 
abridging the freedom of speech or of the press. In disposing of them 
the court said at pp. 733, 736: 

"I'Tor can any regulations be enforced- against the trans- 
portation of printed matter in the mail, which is open 
to examination, so as to interfere in any manner with the 
freedom of the press* Liberty of circulating is as essen- 
tial to that freedom as liberty of publishing; indeed, 
without the circulation, the publication would be of little 
value. If, therefore, printed matter be excluded from the 
mails, its transportation in any other way cannot be for- 
bidden by Congress." 

* * * 


-25- .; - 

"In various articles from the.- -mail , the object 
of 'Congress 'has.. not "been to i. .terfere -wi^h./bhe freedom 
of the press,, of .with any other rights of the people; 
"but to re if use i t s facilities for the distribution of 
matter deemed injurious to the public morals, . -" 

• » 

"All that Congress meant, by this act was, that the mail 
should not be used to transport such corrupting publications 
and articles, and that any one who attempted to iise it for 
that purpose should be punished. The same inhibition has 
been extended to circulars concerning lotteries, — in- ■ ■' 
stitutions which are' supposed to have a demoralizing in- 
fluence upon the people, ..." 

In the course of its decision it reviewed certaindiistorical 
aspects of the view that the power did not extend to the exclusion of 
publicati'ons from the use of the rails ."because such would be an abridge- 
ment of the liberty of the press. This review (found at pp. 733 to 735) 
is as follows: 

"In 1856, the question as to the power, of Congress to ex- 
"» elude Publications from the mail was discussed in the 
Senate; and the prevailing opinion of its members, as ex- 
pressed in debate, was ; against the existence of the power. 
President Jachson, in his annual message of the previous 
year, had referred to the attempted circulation through 
the mail' of inflammatory appeals, addressed to the passions 
of the slaves, in prints, and in various publications, 
tending'' to stimulate them to insurrection; and suggested 
to Congress the propriety of passing a law prohibiting! 
under severe penalties, such circulation of 'incendiary 
publications' in tile Southern States, In the Senate, 
„•.•■•.■ that portion of 'the message was referred to a select com- 
mittee, of which'Mr. C: .lhotui was chairman; and he made an- 
elaborate report on the subject.; in which he contended 
' that it belonged to the States ,. and,, not -to-, Congress , to 
"determine what is and what is not calculated to disturb 
their security, and that to hold otherwise would' be fatal 
to the States; for if Congress might determine what papers 
were incendiary, and as such prohibit their circulation 
through the mail, it might also determine what were not 
incendiary, and enforce their^ circulation, Whilst, there- 
for, condemning in the strongest terms the circulation 
of the publications, he insisted that Congress had not the 
power to pass a law prohibiting their transmission through 
the mail, on the ground that it would abridge the liberty 
of the press, 'To understand,' he said, 'more fully the. .>• 
extent of the control which the right of prohibiting circu- 
lation through the mail would give to the government over 
the press, it must be borne in mind that the power of 
Congress over the post-office and the mail is an exclusive ,, 
power. It must also be remembered that Congress, in the 
exercise of this power, may declare any road or navigable 



water to "be a post-road; and that, by the act of 1825, it is pro- 
vided "that no stage, or other vehicle which regularly performs 
trips on a post-road, or on a road parallel to it, shall carry 
letters."' ' The same provision extends to packets, boats, or \ • 
other vessels on navigable waters. Like provision may "be ex- 
tended to newspapers and pamphlets, which, if it be admitted 
that Congress has the right to discriminate in reference to their 
character, what papers shall or what shall not be transmitted by 
the mail, would subject the freedom of the press, on all sxibjects, 
political, moral, and religious, completely to its will and plea- 
sure. It woiild in fact, in some respects, more effectually control 
the freedom of the press than any sedition law, however severe its 
penalties.' Mr. Calhoun, at the same time, contended that when a t "■'" 
State had pronounced certain publications to be dangerous to its 
peace, and prohibited their circulation, it was the duty of Congress 
to respect its law and cooperate in their enforcement; and whilst, 
therefore, Congress could not prohibit the transmission of the in- 
cendiary documents through the mails, it would prevent their de- 
livery by the postmasters in the States where their circulation 
was forbidden. In the discussion upon the bill reported by him, 
similar views against the power of Congress were expressed by other 
senators, who did not concur in the opinion that the delivery of 
papers could be prevented when their transmission was permitted," 

The court then proceeded to state that the views of these dis- 
tinguished jurists and statesmen were founded on the assumption that 
it was competent for Congress to prohibit J 'the transportation of news- 
papers and pamphlets over postal routes in any n-ther way than mail, 
but that in the opinion of the court Congress did not possess the power 
to prevent the transportation in other ways of merchandise or matter which 
it excluded from the mails. 

In the case of Ex Parte Rapie r, 143 U. S. 110, 36 L. Ed. 93, the pow- 
er of Congress to forbid the use of mails to. lottery tickets, circulars, 
and certain other matter -was again challenged. The contention was made 
that where Congress coxild not by direct legislation pronounce a business 
to be a crime and punish it as such it was not competent for Congress 
to deprive it of the benefit of the mails for the sole purpose of en- 
deavoring to harass or obstruct or suppress it. While the Tenth Amend- 
ment was not cited by name, considerable stress was' laid on the point 
that the suppression of lotteries by the denial of the use of the mails 
was utterly inconsistent with the whole theory of the constitutional 
relations between the general government and the states. This same 
argument is being urged against the validity of the use of power to ex- 
clude from the malls which is made in recent New Deal legislation such 
as the Public Utility Act of 1935 and the Securities Act of 1933, here- 
inafter considered in detail under point V of this opinion. 

Without specific reference to the Tenth Amendment, the court sus- 
tained the power of Congress to forbid the use of the mails to articles 
of this character in the following language at p. 134: 


. • < 

It is not necessary that Congress should have the power to deal 


with crime or immorality within the States in order to maintain 
that it possesses the power to forbid the use of the mails in aid 
of the perpetration of crime or immorality. 

"The argument that there is a distinction "between mala prohibit a 
and mala .in s e, and that Congress might forbid the use of the mails 
in promotion of such acts as are universally regarded as mala in se , 
including all such crimes as murder, arson, burglary, etc., and the 
offence of circulating obscene books and papers, but cannot do so .> 
in respect of other matters which it might regard as criminal or 
immoral, but which it has no -power itself to prohibit, involves a 
concession which is fatal to the contention of petitioners, since 
it would be for Congress to determine what are within and what with- 
out the rule; but we think there is no room for such a distinction 
- here, and that it must be left to Congress in the exercise of a 
sound discretion to determine in what manner it will exercise the 
power it undoubtedly possesses."' 

Specifically referring to the freedom of the press objection, the 
court said at pp.134 and 135: 

"We cannot regard the right to operate a lottery as a fundamental 
right infringed by the legislation in question; nor are we able to 
see that Congress can be held, in its enactment, to have abridged 
the freedom of the press. The circulation of newspapers is not 
prohibited, but the government declines itself to become an agent 
in the circulation of printed matter which it regards as injurious 
to the people. The freedom of communication is not abridged with- 
in the intent and meaning of the constitutional provision unless 
Congress is absolutely destitute of any discretion as to what shall 
not be carried in the malls, and compelled arbitrarily to assist in 
the dissemination of matters condemned by its judgment, through the 
governmental agencies which it controls. That power may be abused 
furnishes no ground for a denial of its existence, if government is 
to be maintained at all." ' 

In Lewis Publishing Co. v. Morgan , s upra, the freedom of press ob- 
jection was urged against the denial of the privileges of second class 
mail matter including low postal rates to newspaper and Toeriodicals 
which did not publish sworn statements of their average circulation, the 
names of their editors, publishers, owners, principal stockholders, 
principal creditors, and other specified data, and mark all paid reading 
matter as "advertisement". The Supreme Court examined carefully the 
power of Congress to classify mail under its general power to establish 
and operate a postal system, and declared the requirements in question 
to 'be reasonable in character and constitutional. In its decision the 
"court used the following language, p. 313, 314: 

"... That Congress in exerting its power concerning the mails has 
the comprehensive right to classify which it has exerted from the 
beginning and therefore may exercise its discretion for the pur- 
pose of furthering the public welfare as it understands it, we think 
it too clear for anything but statement; the exertion of power of 



course, at all times and under all- conditions being subject to the 
express or necessarily implied limitations of the Constitution. 
Prom this it results that it was and is In the power of Congress 
in 'the interest of the dissemination of current intelligence' to 
so legislate as to the mails, by classification or otherwise, as 
to favor the widespread circulation of newspapers, periodicals, 
etc., even although the legislation on that subject, when con- 
sidered intrinsically, apparently seriously discriminates against 
the public and in favqr of newspapers, periodicals, etc., and their 
publishers... This being true, the attack on the -orovision in 
Question as a violation of the Constitution because infringing the 
freedom of the press, and depriving of property without due pro- 
cess of law, rests only upon the illegality of the conditions which 
the provision exacls in return for the right to enjoy the privi- 
leges and advantages of the second-class mail classification" 

In United States v„ purleson, supra, the question of the freedom 
of the press was also involved. The .Supreme Court upheld an order which 
suspended the second class mail privilege of a newspaper publishing 
company -which had in violation of the Espionage Act of June 15, 1917 (40 
Stat, at Large 230) published systematically false reports and state- 
ments intended to interfere with the success of military operations of 
the United States and to obstruct its recruiting and enlistment service. 
The exclusion from the mails was held to be applicable to all issues 
of the newspaper until such time as it should be shown that the newspaper 
was no longer publishing such false reports and statements. 

Numerous prohibitions against use of the mails imposed by Congress 
have either been upheld specifically by the Supreme Court, or their 
constitutionality has not been under attack. Among the statutes enacted 
by Congress prohibiting the use of the mails by certain specified matter, 
are laws excluding from the mails obscene matter and information con- 
cerning abortion, ( U. S-. Criminal Cod e, S ection 211 ;o obscene, libelous or 
threatening iinatter upon envelopes or postal cards, U. S.. Criminal Cod e, 
S ection 212 ;' matters relative to schemes to defraud, U.S. Criminal Code , : 
Section 215| poisons, insects, reptiles, explosives, intoxicating liquors, 
U. S. Criminal. Ccag , Sec tion 2 17; matter of a character to incite arson, 
murder or assassination. Act of Mar c h 4, 1 911, C hap. 241 , Section 2 (36 
Stat, at he 1339): matter violating copyright, Act of March 3 , 1 879, 
Chap. 180, Sec , 15.. (-SO' Stat, at L.3E9); prize fight films, Act of July 31, 
1 912, Chap. 263; Sect, 1, (37 Stat, at L. 240); advertisements and solici- 
tations for orders -for intoxicating liquors in prohibition states, Act of 
March 3, 191"% C hap, 1? 2, Section 5 , (.39 Stat, at 1. 1069). 

The Supreme Court in ladders v. United States, 240 U. S. 391 (1916), 
60 L. Ed. 703 decided that the provisions of Section 215 of the Un. S. 
Criminal Code prohibiting 'the placing of letters in the mail for the pur- 
pose of executing a scheme to defraud is within the power of Congress, l 
even as applied to what may be a mere incident of a fraudulent scheme that 
is outside the jurisdiction of Congress. This case is cited in Jones v . 
Securities and E xc hange Commi ssion) i nfra , to sustain the use of the postal 
power in the Securities Act of 1933 to exclude from the mails unregistered 

The constitutionality of the Espionage Act was upheld by the Supreme 
Court in S chenck v. United States, supra. 


. -29- 

The Trading with the Enemy Act passed on October 6, 1917 by Con<- 
gress, Chap. 106, Sec. 19, 40 Stat, at L. 425, provided that until the _ 
end of the War foreign language papers should he nonmailable unless a 
translation should have been previously filed with the local postmaster; 
but that postmastfer General might, in his discretion, grant a permit to 
mail without such translation; such provisions to be applicable to pub- 
lications sent by any class of mails. Its constitutionality was not sub- 
subjected to attack. 

The Act prohibiting the use of the mails by prize fight films was 
never attacked in the Courts and remains in effect; although the Supreme 
Court in Weber v. Freed , 239 U.. S. 325 (1915), 60 L. Ed. 308, held to be 
constitutional that portion of the Act prohibiting importation in foreign 
commerce of such fight films. 

By the Act of February 8, 1927 (29 Stat, at L. 512, TE. S. Criminal 
Code, Sec. 245) Congress forbade the depositing or carrying in the mails 
of "any obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, 
writing, print or other publication of an indecent character, etc." The 
Supreme Court has not rassed squarely upon the constitutionality of this 
law; but in United States v. Popper , 98 Fed. 423 (1899), the District Court 
for the Northern District of California upheld the law; and this decision 
was cited with approval by the Supreme Court in Hoke v. United States, 227 
U. S. 308 (1913), 57 L. Ed. 523, in- which the validity of the Mann Act (36 
Stat, at L. 825) was sustained. 

The case of Champion v. Ames , 138 U. S. 321 (1903), 57 L.Ed. 492 up- 
holds the Act of Congress passed on March 2, 1895 (28 Stat, at L. 963), ex- 
cluding from interstate or foreign commerce "any paper, certificate, or in- 
strument purporting to be or represent a ticket, share or interest in or de- 
pendent' upon the event of a lottery, so-called gift concert or similar en- 
terprise offering prizes dependent upon lot or chance". This Act also pro- 
hibits the depositing in or carriage by the mails of the same matter. The 
constitutionality of the latter provision of the Act has never been attack- 

The "Reed"' or "Bone Dry" amendment to the Post Office Appropriation 
Act passed by Congress on March 3, 1917 (39 Stat, at L. 1058-1069) pro- 
vided that no letter, postal card, circular, newspaper, pamphlet or pub- 
lication of any kind containing any advertisement or spiritous, vinous, 
malted, fermented, or other intoxicating liquors should be deposited in or 
carried by the malls of the United States, or delivered by any postmaster 
or letter carrier when addressed to any person, or corporation, or other 
addressee at any place in any state or territory of the United States or the 
district of Columbia, "at which it is by the law in force in the State or 
Territory at the time unlawful to advise or solicit orders for such liquors, 
or any of them respectively". The constitutionality of this Act, insofar 
as it prohibits the use of the mails, has remained undisturbed by attack. 
However, its provisions prohibiting transportation in interstate or foreign 
commerce have been upheld by the Supreme Court in United States v. Hill , 
248 U. S. 420" (1919)", 63 L. Ed. 337. 

By Section 2 of the' Act of May 16, 1918, Chap. 75, 40 Stat, at L. 
554, authority was conferred upon the Postmaster General to stop delivery 
of mail to a person whom he finds "upon evidence satisfactory to him" to 
be using the mails in violation of the Espionage Act. 



The power of the Federal Government to refuse the mails to object- 
ionable matter attends that matter at every step from its first deposit 
in the mail until its final , delivery to the addressee. Public Clearing 
House v. Coyne, 194 U. ' S. 497., (1904), ' 48 L. Ed. 1092. 

By sections 6 of the Act of June 8, 1872 (17 Stat, at L. 285, Chap. 
335), the Postmaster General was empowered to "superintend' the business 
of the Department, and to execute laws relative to the postal service". 
The Postmaster General, acting through his subordinates rejects matter 
offered for mailing, or removes matter already in the mail, which, in his 
judgment, is unmailable* . The power of the Postmaster General to . do this 
within the limits of the principles enunciated in the various cases al- 
ready cited can not be doubted. 

To sum up, while the postal power is planary, extending to the classic: 
fication and exclusion of articles presented for transmission through the 
mails, it is not without limitations. They' are: 

First: ' Freedom Of the press, guaranteed by the First Amendment to 
the Federal Constitution. 

, Second: Security from unreasonable search and seizures, pursuant 
to the Fourth Amendment to that Constitution. 

Third: Due process, required by the Fifth Amendment to that Con- ' 

• In connection with fr eedo m of ' the press , and the limitation imposed 
by the First Amendment, there appears to be no doubt that if there should 
be a real interference with freedom of the press, the Supreme Court would 
decline to grant its approval. The decisions of that Court lead to no 
conclusion other than that any attempt on the part of Congress to place a 
serious restraint upon the press., or even to deny the press postal facili- 
ties, would receive \a. judicial vefco 

All exclusions from the mails actually upheld by the Supreme Court 
can be justified as partaking of the nature of Federal police regulations. 
The excluded articles are either inherently injurious, inimical to the 
health, safety and well-being of the recipients, or the use of the mails 
has been denied because such use would be in furtherance of a, design that is 
condemned by moral considerations, or is against public policy. 

If legislation to regulate hours and wages of industries should sim- 
ply make 'matter relating to unapproved hours and wages non-mailable and 
should penalize any attempt to use the postal service for its carriage^ 
such legislation would probably be less objectionable. But it seems 
clear that if legislation should grant the Postmaster General absolute 
authority to deny delinquent industries mail facilities for all of its :.._.. 
mail matter, much of which would be admittedly innocuous, the result 
would be,-, in effect, to empower the Postmaster General to mete out pun— 
'ishment for acts not make criminal by Congress, Such legislation would 
be unconstitutional. This appears very clearly from the principle of 
the cases already cited and those which follow. 

9809.-; x 


If industries violate a constitutional law that ma - / "be enacted by 
Congress relating to hours and wages, or their -.hours and wages have 
"been otherwise out-lawed "by valid legislation, Congress would have the 
right to deny them the use of the mails, since it would "be anomalous 
for the Federal Government to aid, through its instrumentalities such 
as the postal service, persons or corporations violating valid laws. 

The Fe deral Child Labor Act of September 1, 1916 ( 39 Stat, at L. 
675) was declared unconstitutional "by the Supreme Court as to interstate 
commerce in Hamme r v. Da genhart, supra , as not be'ng a regulation of 
Clause of the Federal Constitution; "but, on the contrary, as "being a - 
regulation of production or manufacture within the exclusive right of 
the states to regulate. It is logical to assume that the same line of 
reasoning would "be applied "by the Supreme Court to any federal legis- 
lation regulating industry hours and wages containing provisions excluding 
communications and parcels of industries that are in violation of such 
legislation where such regulation had no other constitutional sanction. 

The Supreme Court has held that Congress, i n the exercise of an' 
acknowledged power , may reach indirectly a result which' it is not con- 
stitutionally authorized to reach directly; and the desire to reach this 
indirect result which may have furnished the real motive for its action 
is not a matter into which the courts can constitutionally inquire, ( 
Chanpioir v «Ames , 183 U. S. 321 (1903), 47 L. Ed. 492; McCray v. Unite d 
States, " 195 U. SI 27 (1904), 49 L. Ed. ?8»; Ygazie Bank v. Fenno, 8 7all. 
533 (1869); Hipolite Egg Co . v. United States, 222 U. S. 245 (1911), 55 
L. Ed. 520; Caminetti v. United S tates, 242 U. S. 37C (1917), 61 L. Ed. 
371; Clark Distilling Co. v. Western Maryland Ra i lroad, 243 U. S. 311 
(1917), 61 L. Ed. 741). 

Thus, Congress may exercise a right of exclusion of matter from the 
mails, when to do so constitutes a necessary and reasonable means of ren- 
dering effective a policy which, in itself, is one which Congress has the 
constitutional right to enforce even though the indirect results there- 
of are to influence matters within the regulatory powers of thestates. 
If, therefore, the Supreme Court should find an act passed by Congress 
regulating hours and wages of -industries to be constitutional under the 
Commerce Clause, a provision in such an act excluding matter of delinquent 
industries from the mails would be lawful even though the matter was not 
inherently dangerous to carry or of such a character as to do any injury, 
moral or physical, to anyone. But any federal legislation excluding mat- 
ters from the mails mast apply directly to the things mailed, not to the 
persons using the mails. This seems clear from the general principles 
already enumerated, and from the case of Jones v. Securities & Exchange 
Commission , infra , and American States Public Service Co . , Debtor in r e, 
infra . 

However, Congress under the guise of an exercise of its postal 
power,- may not regulate matters not otherwise within its powers to' reg- 
ulate. • Such an extension of ■'. the postal pqwor night result in the sub- 
jection of practically all local activities in the country to regulation 
by Congress, since business cannot be conducted without use of the mails. 
Little would then remain of state rights and powers. As Walter F. Dodd 
in "Adjustments of the Constitution to New 'Needs (A. B.A. Journal, 
February, 1936, at page 128), says; 


r;,/.'"The power 'to establish! 'host . offices and post roads', if construed 

to. .permit the denial of postal facilities win respect to local 
••"■.-■transactions not otherwise within the po?rer of the national govern- 
.ment, may of itself alone bring an .abandonment of the constitu- 
tional principle that the ■ federal government has limited- powers.."" 
IV.. Other, aspects of the Power. 

The case of I n reHeiis .,158 U. S. 564, 39 L. Ed.. 1092 (1895) involved'' 
the issue whether, for protection of the mails aid o f interstate .com- 
merce, the Federal Government,, may "by the use of judicial restraining 
orders or the employment of its armed forces, if necessary, prevent' 
interference with the malls and with interstate commerce. The. Supreme 
Court decided the issue in the affirmative, even in the absence of Fed- 
eral legislation on the subject. It said at page 582: 

"... The entire strength of the nation 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 Consti- 
tution to its care. The strong arm of the national government may 
be put forth to brush away all obstructions to the freedom of inter- 
state commerce or the transportation of the mails.,.." 

The same. fullness of control. as exists over railroads declared by statute 
to be post roads exists over waterways, and the Federal Government has 
the same power to remove obstructions from the one as from th other. 
(iri re Debs , supra . ) 

This control extends to the granting of franchises authorizing cor- 
porations to construct national highways and bridges from state, to state, 
(California v. Central Pacific Railroad C o. , suora[_* Pennsylva n ia' v. Wheel- 
i ng, etc., Bridge Co . ,18 How. 421, 15 L. Ed. 435 (1856); Luxton v. North 
River Bridge Co. , 153 U. S. 529, 38 L. Ed. 808 (1894), and to grants of 
rights of way through states, immunity f rom taxation, powers of eminent 
domain, and the right to resort to federal courts on the ground of federal 
citizenship. "There can be no doubt as to the right of the federal gov- 
ernment to construct highways for the transportation of the mail and to 
charge tolls for their use; also to own and operate carriers, and, in— 
incidentally, to engage in business of a priva.te nature if this insures 
the efficiency of the Governmental agency." The Postal Power of Con- 
gress (1916) — Lindsay Rogers. 

It is self-evident that the regulatory power of Congress over post 
offices and post roads is enlarged because of the designation of rail- 
roads, water lines and highways as post roads and the utilization of 
railroad cars, boats, trucks and blisses, operated over such post roads, 
as federal post offices within the confines of a state. 

The federal control of post roads, a. r the Debs Case , 158 U. S. 564 
(1895), made clear, is not confined to mere legislative rules enforces 
able in the courts; but extends Ito the removal of obstructions to the 
carriage of the mails and the executive power. The National Government 
is -charged "with the duty of keening those highways of interstate com- 
merce free from obstruction, for it has always been recognized as one 
ofc the powers and duties of a government to remove obstructions from 
the highways under its control. 1 ' 1 


Moreover, the Federal Government, under its right of eminent domain, 
upon the payment of adequate compensation, judicially determined, may 
compel postal- service from railroads. ,Ihis may be- done' either by as- 
suming management of them for such a purpose, or by enforcing crim- 
inal provisions against obstructing or delaying the mails. (43rd 
Congress, 1st Session, Senate Report IT o. 478). 

The discussion by Willoughby (op. cit. page 1114-15) of. the gen- 
eral question of -how much control' a state may exercise' over the re- 
cipient of mail matter and over federal postal agents noted. 

Thus he states: 

» * ». 

"...This question at one time gave rise'. to extended discussion' in 
connection with the laws of certain of the States prohibiting the ■ 
possession or- ':distributiohxo£ writings or publications which 
those States deemed incendiary or otherwise pernicious. . . This con- 
troversy did not reach the courts, but it led to the rendition of 
an interesting opinion by Cushing, Attorney General of the United 
States, and also one by John Randolph Tucker, Attorney .General of 
the State of Virginia. In Mr. Tucker's memorandum or opinion he 
stated the proposition that the Federal power over the mails ceased 
when the mail matter reached the point of reception, and that then 
the State authority began and was exclusive, with the result that 
each State might determine whether the mailed matter should be de- 
livered to the persons in the State to whom it was addressed, and 
that a postmaster violating State laws as to this could not plead " 
a justification derived from the Federal Constitution or Federal 
laws. This doctrine was approved by Postmaster General Holt, It 
would seem clear, however, that this doctrine was not a sound one, 
since the delivery of mail matter to the addressee is obviously 
an integral part of Federal postal, service,- and, as such, could not, 
constitutionally, be directly interfered with any under State auth_* 
ority. The fact that the doctrine should have been declared and should 
have met with any acceptance is explainable,' as Professor. Rogers' 
points out, only by the fact that, at the time it was declared, the 
absolute supremacy of Federal over State authority had not been so 
clearly stated and enforced as it later came to be. 
"However, thougn it is clear that a Stat.e may not constitutionally 
forbid or punish the receiving by persons in the State of mail matter 
the transmission of which is legal under Federal law, it is possible 
to argue that the. States' may" forbid and penalize the possession by 
the individual of such matter, which, because of its intrinsic 
character,. tn Q State may reasonably judge to be prejudicial -to the 
peace, safety, or welfare of its citizens ■■•or' Of itself. Professor 
Rogers seems to think that such a nositiorHis* a valid one, but the 
present writer is. of opinion". that should: tire question reach the 
Supreme Court, that tribunal ^ould holjt : :that the Federal right to 
receive would be unconstitutionally impaired or denied should a 
State attempt to declar- that, unless the receiver of the mail matter 
should, immediately after receipt thereof, dispossess himself of the 
matter, he mieht be h'eld'' ; criminally liable. It is the belief of the 
writer that the States may constitutionally, so far as the Federal 
postal power is concerned, prohibit the receiver of mail matter from 
transferring it to other persons, or transporting it, or making other 



objectionable use of it, '..but .that this i-8 as far as State authority- 
should he construed to extend. By anal6gv, : considers'ble lieht is 
thrown upon this point- by , the attitude of the courts towards the 
receipt of intoxicating liquors "brought into the State in inter- 
state commerce. ■ 

"Although a. State may not penalize, or otherwise interfere with the 
exercise or enjoyment of postal riehts, hecause these are Federal in 
character, it is reasonably cl°ar that a person accused of a violation 
of a valid State criminal law cannot secure immunity uoon the ground 
that the means, or one of the means, whereby the act charged against 
him was committed, was the use of the United States mails. Thus, in 
a case, in which the defendant was charged with soliciting orders for 
intoxicating liquors in violation of the law. of, the State, the Federal 
Circuit Court .of Appeals said: 'It makes no difference that the 
United States mail was used for the solicitation. The Federal Govern- 
ment does not protect those who use its mails to thwart the -oolice 
regulations of a State made for the conservation of the welfare of its 
citizens. The use of the mails 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.'" 

Attention is also directed to the following cases upholding various 
protective measures: 

Houston v. Moore , 5 Wheat. 1, 5 1, Ed. 19 (1820); 

United States v. Kirby , 7 W a ll. 482, 74 U.S. 278 (1868) : 

(The offense of robbing .^he mails may be made punishable under 
federal law enacted by Congress) ; 

Considine v. United States . 112 Fed. 342 (Cir. Ct., Ohio 1901): 

(Section 5478 of United States Revised Statutes held constitutional. 
It provides that "any person who shall forcibly, break into or 
attempt to break into any -oost office or any building used, in 
whole or in part, as a -oost office -^ith intent to rommi t t' therein 
larceny or other depredation" , shall be guilty and punishable 
by the Federal Government); 

United States' v. McCready . 11 Fed. 225 (Cir. Gt. , Tenn. , 1882): 
(Congress hrs the po^er to make it a federal Criminal offense for 
anyone , to open a letter even after it has massed from the actual 
control of the post office officials and agents and before, manual 
delivery to the person to whom it was directed); 

Illinois 'Central Railroad v. Illinois , 163 U.S. 142, 41 I. Ed. 107 
(1896) ,: (A state statute providing that all regular passenger 
trains shall stop at stations and requiring a fast mail train to 
turn aside from the direct interstate route and to run to a station 
at Cairo, Illinois and back again in order to receive and ..discharge 
passengers at that station is an unconstitutional obstruction of 
the mails) , . . . » • 



V. The Use of the Postal p ower in New Deal Legislation. 

The 'new deal legislators ha - "' made use of the postal t>o m er in several of 
the inroortant regulatory statutes recently enacted. - Thus, Section 5 of the 
Securities Act of 1933,(15 U.S.^C.A. 77e) orovides that unless a registration 
certificate is. in effect as to a security it shall he unlawful for a r>erson 
to make use of any means of transportation or communication in interstate 
commerce, or of the mails, to sell or offer to buy an unregistered security 
through the use of. any prospectus .or otherwise,, or to carry or cause to he 
carried hy these means any such security for. the nurpose- of sale or for 
delivery after sale, or a registered security unaccompanied hy a -orospectus 
meeting certain requirements. ■.... •.-,■■ -....--,. 

The Puhlic Utility Holding Company Act of 1935 orovides in Section 4 that 
unless a holding conroany (as defined in the Act) is registered with the 
Securities and. Exchange Commission, it shall he unlawful for such company to 
use the malls or any instrumentality of interstate commerce to negotiate, 
enter into, take any sten in the oer"ormance of any service-, sales or con- 
struction contract, sell goods to any t>ublic utility or holding company, to 
distribute or. make any puhlic offering for sale or exchange of any security 
of such holding Qomioany, or. subsidiary or affiliate conroany, to sell any such- 
security, to acauire or negotiate f or .the acquisition of any security or " ■-■ 
utility assets of any subsidiary conroany or affiliate of, such holding conroany, 
any public utility company.: or any holding .conroany. Section 6 of the Act 
contains, further exclusions from the use of the mail for the issuance and 
sale of securities airoU cable here to registered holding conroanies or sub- 
sidiaries. ; ..,,'..; , 

In' Jones v. Securities and. Exchange Commission , 79 F. (2d) 617 (1935), 

the Circuit Court of Apoeals for the, second circuit uoheld Section 5 of the 

Securities Act of 1933. (15 U.S.C.A. 77e). In so doing the court said at 
oages 619, 620: 

"The ap-oelont contends that the,, Securities Act of 1933 as amended is 
unconstitutional because the securities are not subjects of commerce. 
But the noower of Congress it relates to control over the use of 
the mails is fully, sustained : by the cases which have considered the 
mail fraud statutes. Badders v. U.S., 240 U.S. 391, 36 S. Ct. 367, 
60 In Ed, 706; Public. Clearing House v. Coyne, 194 U.S. 497, 24 S. Ct. 
789, 48 Li Ed. 1092; In, re Racier, .143 UiS. 110, 12 S. Ct. 374, 36 
L. Ed. 93; Ex oarte Jackson, 96 U.S. .727, 24 L. Ed. 877. It is not 
an unreasoable method of preventing "he use of the mails to oromote and 
consummate the sales of misrepresented securities, to require that all 
securities, before mails are used, must be registered. Lewis Publishing 
Co. v. Morgan, 229 U.S. 288,,, 33 S. .Ct. .867, 57 L.Ed, uoheld. the exaction 
of certain information a condition precedent to a newspaper's 
classification .as second-class matter. Congress already- had the -oower 
to enact the orovision .excluding .securities from the use of the mails 
unless a true statement destiribin-? them was filed in a -oublic office 
in Wpshington. The costal cower, like all other cowers, of Congress., is 
subject to the limitations imposed by , the Bill of lights. United States 
ex rel Milwaukee S.D. Pub. Co. v. Burleson, 255 U.S. 407, 430, 41 S. Ct. 
352, 65 L.Ed. 704; Burton v. United States, 202 U.S.- 344, 371, 26 S. Ct. 



688, 50 L.Ed. 1057, 6 Ann. Casj 362. But admitting such limitation, 
we think there was sufficient authority for the. mail sections of the 
Securities Act. The claim that the registration requirements 
violated due process of . law is without force. Registration of all 
securities, whether good or "bad, required by State blue sky laws 
have been upheld as no violation of the due process clause. Hell 
v.- Geiger-Jones Co., 242 U.S. 539, 37 S. Gt. 217, 61 L.Ed.. 480, 
L.R.A. 1917 B . 514, -Ann. Gas. 1917 0. 643; Caldwell v. Sioux Falls' 
Stock Yards Co., 242 U.S. 559, 37 S,- Ct. 224, 61 L.Ed. 493, Merrick 
v. N.W. Ha'-ey & Co., 242 U.S. 568, 37 S. Ct. 227, 61 L.Ed. 498. 
Similar registration required of securities within the jurisdiction 
by the federal government would likewise be clear of the inhibitions 
• • of due process in the Eifth Amendment, If the act is constitutional 
so far as it forbids the use of the mails, that is sufficient for our 
present consideration. Section 26 of the act (15 U.S.C.A. 77z) 
cqntains a provision that the invalidity of one part shall not in- 
validate the rest." 

The attempted exercise of the -costal oo w er in the Public Utility Act ■ 
of 1935 was declared an excess of constitutional -oower in American States 
Public Service Co., Debtor in re ., D.C.D.Md. , decided November 7, 1935, 
by District Judge Coleman. The court pointed out the fact that in the cases • 
in which Congress- had been held eraoowered to prohibit the movement of 
persons and things in interstate commerce "the exclusion was addressed directly 
to the transportation of harmful persons or things" and that "the laws that 
were upheld in each of these cas^s did not provide that the shipper of the 
harmful thing should be denied the right to use the facilities of commerce, 
except; for the harmful purpose. The exclusion imoosed by the Public Utility 
Act is vastly broader and bears no relation necessarily to the use itself 
but to the user." 

In holding the act unconstitutional as a denial of due process and an 
invasion of the rights of the states,- the court said: 

"The Public Utility Act, however, denies the right to use the mails 
to all companies or individuals that fall within its classifications 
when they fail to comply with any of the multifarious requirements 
of the act, not as .we have seen, with respect merely to matter,, the 
transmission ,of which through , the mails shall first have been found 
to be contrary to the public interest, but it excludes communications 
of every v ind whatsoever indulged in by these companies or individuals, 
without regard to the character of such communications, other than 
that they shall relate to the business of these comoanies or in- 
dividuals, on the theory that they are affected with a national public 
interest. . . , the decisions of the Supreme Court very definitely 
support the conclusion here reached, to wit, that the exclusion must 
rest directly upon a j-egulation of the mails, that is of the use of 
the mailo , - of the thing mailed, - and not upon a regulation of the 
user . . . Congress by the Public Utility Act seeks to close absolutely 
the use of the mails to a certain class of coroorations and individuals 
, if they refuse to co r, roly with conditions which Congress has no -oower 
. directly to impose, aiming by such exclusion to regulate certain 
practices of these corporations and individuals declared to be 


objectionable, although such practices are dissociated from much, if 
not indeed, the greater portion of the matter thus excluded and itself 
completely innocuous." 

The foregoina; cases etch out line "by line the limits of the constitutional 
power of Congress to establish post offices and post roads. While the 
question of whether Congress may, in the exercise of this -cower, exclude any 
and all matter from the mails even though harmless in character, or may prohibit 
or condition the use of the post roads as a means primarily of controlling 
not the matter of the use of the roads themselves, hut the persons using the 
mails or roads in their activities not connected with the use of the mails or 
roads (such as general compliance with H.R.A., standards, minimum wage and 
maximum hour -orovisions, etc.) appears never to have been presented to the 
Supreme Court for decision, nevertheless the unconstitutionality of any 
legislation addressed to this end seems clear. Maximum hour and minimum wage 
legislation within the limits of Wilson v. New , 243 U.S. 332, would probably 
be constitutional but of little practical value. 

A. general summary of the nrinciolas enunciated by the decisions may be 
made as follows: 

1. The post office and post roads clause delegates nlenary pow-^r to 
Congress which, however, is subject to the constitutional limitations imposed 
upon the exercise by Congress of its enumerated powers, particularly, the 
freedom of the pr=ss guaranteed by the First Amendment, the security from 
unreasonable search and seizure guaranteed bv the Fourth Amendment and the 
due process required by the Fifth Amendment. 

2. Congress mav not indirectly under the guise of the postal and post 
road po rr er interfere with constitutional guarantees or the rights reserved 
to the states by the Tenth Amendment or regulate matters not otherwise 
within its powers where such interference or regulation would be prohibited 
if attempted directly. 

3. An exclusion from the use of the mails or Dost roads must rest upon 
a regulation of the mails or roads and not upon a regulation of the user and 
is proper only when it is a necessary and reasonable means of rendering 
effective a policy which Congress has the constitutional right to enforce. 





Executive Order No. 7075, dated June 15, 1935, established the Division of Review of the 
National Recovery Administration. The pertinent part of the Executive Order reads thus: 

The Division of Review shall assemble, analyze, and report upon the statistical 
information and records of experience of the operations cf the various trades and 
industries heretofore subject to codes cf fair competition, shall study the ef- 
fects of such cedes upon trade, industrial and labor conditiens in general, and 
other related matters, shall make available for the protection and promotion of 
the public interest an adequate rsvie.v of the effects of the Administration of 
Title I of the National Industrial Recovery Act, and the principles and policies 
put into effect thereunder, and shall otherwise aid the President in carrying out 
his functions under the said Title. I hereby appoint Leon C. Marshall, Director of 
the Division of Revie*. 

The study sections set up in the Division of Review covered these areas: industry 
studies, foreign trade studies, labor studies, trade practice studies, statistical studies, 
legal studies, administration studies, miscellaneous studies, and the writing of cede his- 
tories. The materials which were produced by these sections are indicated below. 

Except for the Code Histories, all items mentioned below are scheduled to be in mimeo- 
graphed form by April 1, 1936. 


The Code Histories are documented accounts of the formation and administration of the 
codes. They contain the definition of the industry and the principal products thereof; the 
classes of members in the industry; the history of code formation including an account of the 
sponsoring organizations, the conferences, negotiations and hearings which were held, and 
the activities in connection with obtaining approval of the code; the history of the ad- 
ministration of the code, covering the organization and operation of the code authority, 
the difficulties encountered in administration, the extent of compliance or non-compliance, 
and the general success or lack of success of the code; and an analysis of the operation of 
cods provisions dealing with wages, hours, trade practices, and other provisions. These 
and other matters are canvassed not only in terms of the materials to be fcund in the files, 
but also in terms of the experiences of the deputies and others concerned with code formation 
and administration. 

The Code Histories, (including histories of certain NRA units or agencies) are not 
mimeographed. They are to be turned over to the Department of Co-ioerce in typewritten fom. 
All told, approximately eight hundred and fifty (850) histories will be completed. This 
nuaber includes all of the approved codes and some of the unapproved codes. (In Work Mate- 
rials No. 13, Co ntents of Code. Histories , will be found the outline which governed the 
preparation of Code Histories. ) 

(In the case of all approved codes and also in the case of some codes not carried to 
final approval, there are in NRA files further materials on industries. Particularly worthy 
of mention are the Volumes I, II and III ahich constitute the material ofiicialiy submitted 
to the President in support of the recommendation for approval of each code. These volumes 
9768—1 . 

- ii - 

set forth the origination of the code, the sponsoring group, the evidence advanced to sup- 
port the proposal, the report of the Division of Research and Planning on the industry, the 
recommendations of the various Advisory Boards, certain types of official correspondence, 
the transcript of the formal hearing, and other pertinent matter. There is also much offi- 
cial information relating to amendments, interpretations, exemptions, and other rulings. The 
materials mentioned in this paragraph were of course not a part of the work of the Division 
of Review. ) 


In the work of the Division of Review a considerable number of studies and compilations 
of data (other than those noted below in the Evidence Studies Series and the Statistical 
Material Series) have been made. These are listed beloff, grouped according to the char- 
acter of the material. (In Work M aterials No, 17, T entative O utlines and Summari es of 
Studies in Process , these materials are fully described). 

Industry S tudies 

Automobile Industry, An Economic Survey of 

Bituminous Coal Industry under Free Competition and Code Regulation, Economic Survey of 

Electrical Manufacturing Industry, The 

Fertilizer Industry, The 

Fishery Industry and the Fishery Codes 

Fishermen and Fishing Craft, Earnings of 

Foreign Trade under the National Industrial Recovery Act 

Part A - Competitive Position of the United States in International Trade 1927-29 through 

Part B - Section 3 (e) of NIRA and its administration. 
Part C - Imports and Importing under NRA Codes. 
Part D - Exports and Exporting under NRA Codes. 

Forest Products Industries, Foreign Trade Study of the 

Iron and Steel Industry, The 

Knitting Industries, The 

Leather and Shoe Industries, The 

Lumber and Timber Products Industry, Economic Problems of the 

Men's Clothing Industry, The 

Millinery Industry, The 

Motion Picture Industry, The 

Migration of Industry, The: The Shift of Twenty-Five Needle Trades From New York State. 
1926 to 1934 

National Labor Income by Months, 1929-35 

Paper Industry. The 

Production, Prices, Employment and Payrolls in Industry, Agriculture and Railway Trans- 
portation, January 1923, to date 

Retail Trades Study, The 

Rubber Industry Study, The 

Textile Industry in the United Kingdom, France. Germany. Italy, and Japan 

Textile Yarns and Fabrics 

Tobacco Industry, The 

Wholesale Trades Study, The 

Women's Neckwear and Scarf Industry, Financial and Labor Data on 


- iii - 

Women's Apparel Industry, Some Aspects of the 

T rade Prac tice Studies 

Commodities, Information Concerning: A Study cf NRA and Related Experiences in Control 
Distribution, Manufacturers' Control of: Trade Practice Provisions in Selected NRA Codes 
Distributive Relations in the Asbestos Industry 
Design Piracy: The Problem and Its Treatment Under NRA Codes 
Electrical Mfg. Industry: Price Filing Study 
Fertilizer Industry: Price Filing Study 

Geographical Price Relations Under Codes of Fair Competition, Control of 
Minimum Price Regulation Under Codes of Fair Competition 
Multiple Basing Point System in the Lime Industry: Operation of the 
Price Control in the Coffee Industry 
Price Filing Under NRA Codes 
Production Control in the Ice Industry 
Production Control, Case Studies in 

Resale Price Maintenance Legislation in the United States 

Retail Price Cutting, Restriction of, with special Emphasis on The Drug Industry. 
Trade Practice RuJes of The Federal Trade Commission (1914-1936): A classification for 
comparison with Trado Practice Provisions of NRA Codes. 

Labor S tudies 

Cap and Cloth Hat Industry, Commission Report on Wage Differentials in 

Earnings in Selected Manufacturing Industries, by States, 1933-35 

Employment, Payrolls, Hours, and Wages in 115 Selected Code Industries 1933-1935 

Fur Manufacturing, Commission Report or. Wa cs and Hours in 

Hours and Wages in American Industry 

Labor Program Under the National Industrial Recovery Act, The 

Part A. Introduction 

Part B. Control of Hours and Reemployment 

Part C. Control of Wages 

Part D. Control of Other Conditions of Employment 

Part E. Section 7(a) of the Recovery Act 
Materials in the Field of Industrial Relations 
PRA Census of Employment, June, October, 1933 
Puerto Rico Needlework, Homeworkers Survey 

Adm inistrative Stu d ies 

Administrative and Legal Aspects of Stays, Exemptions and Exceptions, Code Amendments, Con- 
ditional Orders of Approval 

Administrative Interpretations of NRA Cedes 

Administrative Law and Procedure under the NIRA 

Agreements Under Sections 4(a) and 7(b) of the NIRA 

Approve Codes in Industry Groups, Classification of 

Basic Code, the — (Administrative Order X-61) 

Code Authorities ar.c. Their Part in the Administration of the NIRA 
Part A. Introduction 
Part E. Nature, Composition and Organization of Code Authorities 

9768 — 2. 

- iv - 

Part C. Activities of the Code Authorities 

Part D. Code Authority Finances 

Part E. Summary and Evaluation 

Code Compliance Activities of the NRA 

Code Making Program of the NRA in the Territories, The 

Code Provisions and Related Subjects, Policy Statements Concerning 

Content of NIRA Administrative Legislation 

Part A. Executive and Administrative Orders 

Part B. Labor Provisions in the Codes 

Part C. Trade Practice Provisions in the Codes 

Part D. Administrative Provisions in the Codes 

Part E. Agreements under Sections 4(a) and 7(b) 

Part F. A Type Case: The Cotton Textile Code 
Labels Under NRA, A Study of 

Model Code and Model Provisions for Codes, Development of 

National Recovery Administration, The: A Review of its Organization and Activities 
NRA Insignia 

President's Reemployment Agreement, The 

President's Reemployment Agreement, Substitutions in Connection with the 
Prison Labor Problem under NRA and the Prison Compact, The 
Problems of Administration in the Overlapping of Code Definitions of Industries and Trades, 

Multiple Code Coverage, Classifying Individual Members of Industries and Trades 
Relationship of NRA to Government Contracts and Contracts Involving the Use of Government 

Relationship of NRA with States and Municipalities 
Sheltered Workshops Under NRA 
Uncodified Industries: A Study of Factors Limiting the Code Making Program 

Legal Studies 

Anti-Trust Laws and Unfair Competition 

Collective Bargaining Agreements, the Right of Individual Employees to Enforce 

Commerce Clause, Federal Regulation of the Employer-Employee Relationship Under the 

Delegation of Power, Certain Phases of the Principle of, with Reference to Federal Industrial 
Regulatory Legislation 

Enforcement, Extra-Judicial Methods of 

Federal Regulation through the Joint Employment of the Power of Taxation and the Spending 

Government Contract Provisions as a Means of Establishing Proper Economic Standards, Legal 
Memorandum on Possibility of 

Industrial Relations in Australia, Regulation of 

Intrastate Activities Which so Affect Interstate Commerce as to Bring them Under the Com- 
merce Clause, Cases on 

Legislative Possibilities of the State Constitutions 

Post Office and Post Road Power — Can it be Used as a Means of Federal Industrial Regula- 

State Recovery Legislation in Aid of Federal Recovery Legislation History and Analysis 

Tariff Rates to Secure Proper Standards of Wages and Hours, the Possibility of Variation in 

Trade Practices and the Anti-Trust Laws 

Treaty Making Power of the United States 

War Power, Can it be Used as a Means of Federal Regulation of Child Labor? 



The Evidence Studies were originally undertaken to gather material for pending court 
cases. After the Schechter decision the project *as continued in order to assemble data for 
use in connection with the studies of the Division of Review. The data are particularly 
concerned »ith the nature, size and operations of the industry; and with the relation of the 
industry to interstate commerce. The industries covered by the Evidence Studies account for 
more than one-half of the total number ol workers under codes. The list ol those studies 

Automobile Manufacturing Industry 
Automotive Parts and Equipment Industry 
Baking Industry 

Boot and Shoe Manufacturing Industry 
Bottled Soft Drink Industry 
Builders' Supplies Industry 
Canning Industry 
Chemical Manufacturing Industry 
Cigar Manufacturing Industry 
Coat and Suit Industry 
Construction Industry 
Cotton Garment Industry 
Dress Manufacturing Industry 
Electrical Contracting Industry 
Electrical Manufacturing Industry 
Fabricated Metal Products Mfg. and Metal Fin- 
ishing and Metal Coating Industry 
Fishery Industry 

Furniture Manufacturing Industry 
General Contractors Industry 
Graphic Arts Industry 
Gray Iron Foundry Industry 
Hosiery Industry 

Infant's and Children's Wear Industry 
Iron and Steel Industry 

Leather Industry 

Lumber and Timber Products Industry 
Mason Contractors Industry 
Men's Clothing Industry 
Motion Picture Industry 
Motor Venicle Retailing Trade 
Needlework Industry of Puerto Rice 
Painting and Papsrhanging Industry 
Photo Engraving Industry 
Plumbing Contracting Industry 
Retail Lumber Industry 
Retail Trade Industry 
Retail Tire and Battery Trade Industry 
Rubber Manufacturing Industry 
Rubber Tire Manufacturing Industry 
Shipbuilding Industry 
Silk Textile Industry 
Structural Clay Products Industry 
Throwing Industry 
Trucking Industry 
Waste Materials Industry 
Wholesale and Retail Food Industry 
Wholesale Fresh Fruit and Vegetable Indus- 
Wool Textile Industry 


This series is supplementary to the Evidence Studies Series. The reports include data 
on establishments, firms, employment, payrolls, wages, hours, production capacities, ship- 
ments, sales, consumption, stocks, prices, material costs, failures, exports and imports. 
They also include notes on the principal qualifications that should be observed in using the 
aata, the technical methods employed, and the applicability of the material to the st^dy cf 
the industries concerned. The following numbers appear in the series: 
9766 — 5. 

- vi - 

Asphalt Shingle and Roofing Industry • Fertilizer Industry 

Business Furniture Funeral Supply Industry 

Candy Manufacturing Industry Glass Container Industry 

Carpet and Rug Industry Ice Manufacturing Industry 

Cement Industry Knitted Outerwear Industry 

Cleaning and Dyeing Trade Paint, Varnish, and Lacquer, Mfg. Industry 

Coffee Industry Plumbing Fixtures Industry 

Copper and Brass Mill Products Industry Rayon and Synthetic Yarn Producing Industry 

Cotton Textile Industry Salt Producing Industry 

Electrical Manufacturing Industry 


The original, and approved, plan of the Division of Review contemplated resources suf- 
ficient (a) to prepare some 1200 histories of codes and NRA units or agencies, (b) to con- 
solidate and index the NRA files containing some 40,000,000 pieces, (c) to engage in ex- 
tensive field work, (d) to secure much aid from established statistical agencies of govern- 
ment, (e) to assemble a considerable number of experts in various fields, (f) to conduct 
approximately 25% more studies than are listed above, and (g) to prepare a comprehensive 
summary report. 

Because of reductions made in personnel and in use of outside experts, limitation of 
access to field work and research agencies, and lack of jurisdiction over files, the pro- 
jected plan was necessarily curtailed. The most serious curtailments were the omission of 
the comprehensive summary report; the dropping of certain studies and the reduction in the 
coverage of other studies; and the abandonment of the consolidation and indexing of the 
files. Fortunately, there is reason to hope that the files may yet be cared for under other 

Notwithstanding these limitations, if the files are ultimately consolidated and in- 
dexed the exploration of the NRA materials will have been sufficient to make them accessible 
and highly useful. They constitute the largest and richest single body of information 
concerning the problems and operations of industry ever assembled in any nation. 

L. C. Marshall, 
Director, Division of Review. 
9768—6 .