dissenting.
This ease arose during the World War; but it presents no legal question peculiar to war. It is important, because what we decide may determine in large measure, whether in times of peace our press shall be free.
The denial to a newspaper of entry as second-class mail, or the revocation of an entry previously made, does not deny to the paper admission to the mail; nor does it deprive the publisher of any mail facility. It merely deprives him of the very’ low postal rates, called second class, and compels him to pay postage for the same service at the rate called third class, which was, -until recently, from eight to fifteen times as high as the second-class rate.1 Such is the nature and the only'effect of an order denying or revoking the entry. See Postal Laws and Regulations, §§ 421, 422 and 423. In this case entry to the second-class mail was revoked because' the paper had, in the opinion of the Postmaster General, systematically inserted editorials and news items which ..he deemed unmailable. The question presented is: Did Congress confer upon the Postmaster General authority to deny second-class postal rates on 'that ground? The question is one of statutory construction. No such authority is granted in terms in the statutes which declare what matter .shall be unmailable. Is there any provision of the postal laws from which, the intention of Congress to grant such power may be inferred? The specific reasc^ why the Postmaster General deemed these editorials and news items unmailable was that he considered them violative of Title XII of the Espionage Act. But it is not contended that this specific reason is of' *418legal significance. The scope of the Postmaster General’s-alleged authority is confessedly the same whether the reason for the nonmailable quality of the matter inserted in a newspaper is that it violates the Espionage Act, or the copyright laws, or that it is part of a scheme to defraud, or concerns lotteries, or is indecent, or is in any other respect matter which Congress has declared shall not be admitted to the mails.1 The quéstion of- the scope of the Postmaster General’s power is presented to us on the following record:
Some years prior to 1917 The Milwaukee Leader, a daily newspaper published by the Milwaukee Social Democratic Publishing Company, made application to use the second-class mail, was declared entitled to do so, and thereafter used it continuously. It built up a large circulation, of which about 9,000 copies were distributed daily through the second-class mail. „In September, 1917, its publisher was directed to show cause “why the authorization of admission .... to-the second class mail matter . . . should not be revoked upon the following ground:'
“ The publication is not ‘ a newspaper or other periodical publication ’ within the meaning of the law governing mailable matter of the second class, it being in conflict with the provisions of the law embodied in section 4813^ Postal Laws and Regulations. ”
*419That section relates not specifically to the second-class mail; but to all mail. It recites the provisions of Title XII of the Espionage Act of June 15, 1917, c. 30, 40 Stat. 217, 230, which declares unmailable all letters, pictures, publications and things “in violation of any of the provisions” of that act, and prescribes fine-and imprisonment as punishment for the use or attempt to use the postal service for the transmission of such unmailable matter.1 On this notice to show cause the Third Assistant Postmaster General held the customary informal hearing. The publisher of The Milwaukee Leader had not been convicted by any court of violating the Espionage Law; and its representative denied that it had ever committed any act in violation of it. But the Third Assistant Postmaster General issued on October 3, 1917, to the postmaster at Milwaukee the instruction that The Milwaukee Leader “is not entitled to transmission in the mails at the second-class rates of postage because it appears from the evidence in possession of the Department that the publication is not a 'newspaper or.other periodical publication’ within the meaning'of the law governing mailable matter of the second class, it being in conflict with the provisions of the law embodied in section 481H, Postal Laws and-Regulations.”
This determination and action were confirmed by the Postmaster General; and the postmaster at Milwaukee thereafter denied to the publication transmission at the rates provided by law for second-class mail. The order did not forbid to The Milwaukee Leader all use of the. mails; nor did it limit in ahy way the use of the mail, facilities; it merely revoked the so-called second-class mailing permit; and the effect of this was to impose a *420higher rate of postage on every copy of the. newspaper thereafter mailed. '
The return filed herein by the Postmaster General alleges that this order.“involved the exercise of judgment, and discretion on his part ” and is “not subject to be reviewed, set aside, or. controlled by a court-of law;” but he gives this justification for his action: “ .
“By representations and complaints from sundry good and loyal citizens of the United States and from personal reading and consideration of the issues of the said relator’s publication, from the date of the declaration, of war down To the time of service of the citation upon it", and the hearing granted in pursuance thereof, it seemed to this respondent, in the exercise of his judgment, and discretion and in obedience to the duty on him reposed as well by the general statutes as by the special provisions of said Espionage L^w, that the provisions of the latter act were systematicálly-and continually violated by the relator’s publication”
It thus appears, that’ the Postmaster General, in the exercise of a supposed discretion, refused to carry at second-class mail rates all future issues, of'The Milwaukee Leader, solely because he believed it had systematically violated the Espionage Act in the past. ' It further appears that this belief rested partly upon the contents of past issues of the paper filed with the return and partly upon “representations and complaints from sundry good and. loyal citizens, ” whose statements are not incorporated in this record and which do not appear to have been called to thé attention of the publisher of The Milwaukee Leader, at the hearing or otherwise. . It is this general refusal, thereafter to accept the paper for transmission at the second-class mail rates which is challenged as being without warrant in law.
In discussing whether Congress conferred upon the Post-, master 'General the authority which he undertook to exer*421cise in this case, I shall consider, first, whether he would have had the power to exclude the paper altogether from all future mail service on the ground alleged; and second, whether he had power to deny the publisher the second-class rate.
First. Power to exclude from the mails has never been conferred in terms upon the Postmaster General. Beginning with thé Act of March 3,1865, c. 89, § 16,13 Stat. 507, relating to obscene matter and the Act of July 27,1868, c. 246, § 13, 15 Stat. 196, concerning lotteries, Congress .has from time to time forbidden the deposit in the mails of certain matter. In each instance, in addition to prescribing fine and imprisonment as a punishment for sending or attempting to send the prohibited matter through the mail, it declared that such matter should not be;conveyed in the mail, nor delivered from any post office nor by any letter carrier.1 By § 6 of the Act of June 8,1872, c. 335,17 Stat. 285, (Rev. Stats., § 396), the Postmaster General was empowered to "superintend the business of the department, and execute all laws relative to the postal service. ” Asa matter of administration the Postmaster General, through his subordinates, rejects matter offered for mailing, or removes matter already in the mail, which in his judgment is unmailable. The existence in the Postmaster General of the power to do this cannot be doubted. The only question which can arise is whether in the individual case the power has been illegally exercised.2 But while he may *422thus exclude from the mail specific matter which he deems of the kind declared by Congress to be unmailable, he may not, either as a preventive measure or as a punishment, order that in the future mail tendered by a particular person or the future issues of a particular paper shall be refused transmission.
Until recently, at least, this appears never to have been questioned and the Post Office Department has been authoritatively advised that the power of excluding matter from the mail was limited to such specific matter as upon examination was found to be unmailable and that the Postmaster General could not make an exclusion order operative upon future issues of a newspaper. -
In 1890 Tolstoi’s Kreutzer Sonata had been excluded from the mails as indecent. Certain newspapers began to publish the book in instalments and their position was 'referred to the Attorney General. He replied:
“ . . . I do not see that it necessarily follows that eveiy instalment of the story thus publishedjs obscene, because the story as a whole is declared to be so. It may be, indeed, that one or more chapters of this story are entirely unexceptionable in character. If so, the exclusion, as unmailable, of newspapers’ containing them might involve serious consequences to yourself. ” (19 Ops. Atty. Gen. 667, 668.)
Again, in 1908, President Roosevelt asked the Attorney General if the law permitted him to deny the mails to an anarchist newspaper published in the Italian language in which appéared articles advocating the murder of the police force of Paterson and the burning of the city. The Attorney General advised him that such an article constituted a seditious libel (it has since been made criminal by statute, Act of March 4,1911, c. 241, § 2, 36 Stat. 1339), and that “the Postmaster General (would) be justified in excluding from the mails any issue of any periodical, otherwise entitled to the privileges of second-class mail *423matter, which shall contain any article containing a seditious libel and counseling such crimes as murder, arson, riot, and treason. ” (26 Ops. Atty. Gen. 555.)
But the Attorney General was caréful to point out that the law gave no authority to exclude issues of the paper which should contain no objectionable matter;
“It must be premised that the Postmaster General clearly has no power to close the mails to any class of persons, however reprehensible may be their practices or however detestable their reputation; if the question were whether the mails could be closed to all issues of a newspaper, otherwise entitled to admission, by reason of an article of this character in any particular issue, there could be no doubt that the question must be answered in the negative” p. 565.
If such power were possessed by the Postmaster General,. he would, in view of the practical finality of.his. decisions, become the universal censor of publications. For a denial of the use of the mail would be for most of them tantamount to a denial of the right of circulation. Congress has not granted to the Postmaster General power to deny the right of sending matter by mail even to one who has been-convicted by a jury and sentenced by a court for unlawful use of the mail and who has been found by the Postmaster General to have been habitually using the mail for frauds or lotteries and is likely to do so in the future. It has, in order to protect the public, directed postmasters'to return to the sender mail addressed to one found by the Postmaster General to be engaged in a scheme tó defraud or in a lottery enterprise.1 But beyond this Congress has never *424deemed it wise, if,-indeed, it has considered it constitutional, to interfere with the civil right of using the mail for .lawful purposes.* 1
The Postmaster General does not claim herd the power to issue an order directly denying a newspaper all mail service for the future.2 Indeed, he asserts that the mail *425is still open to the Milwaukee Leader upon payment of first, third or fourth-class rates. He contends however that in regard to second-class rates special provisions of law apply under which he may deny that particular rate at his discretion. This contention will now be considered.
Second. The second-class mail rate is confined to newspapers and other periodicals, which possess the qualifications and comply with the conditions prescribed by Congress. 1 In the present case the Postmaster. General insists that by reason of alleged past violations of Title XII of the Espionage Act, two of the conditions had ceased to be fulfilled. "His reasons are these: The Mail Classification Act of March 3, 1879, c. 180, 20 Stat. 358, provides by § 14, that a newspaper to be mailable at the second-class rates “must regularly be issued at stated intervals, as frequently *426as four times a year,” and that it must be “originated and published for the dissemination of information of a public character. ” If any issue'-of a paper has contained matter violativé of the Espionage Act, the paper Is no longer “regularly issued”; and likewise it has ceased to be a paper -‘published for the dissemination of information of a public character. ”1 The argument is obviously unsound. The requirement that the newspaper be “regularly issued” refers, not tq the propriety of the reading matter, but to the fact that publication periodically at stated intervals must be intended and that the intention must be carried out. Similarly, the requirement that the paper be “published for the dissemination of information of a public character” refers not to the reliability of the information or the soundness of the opinions expressed, therein, but to the general character of the publication. The Classification Act doeá not purport to deal with the effect of, or the punishment for, crimes committed through á publication. It simply provides rates and classifies the material which may be sent at the respective rates. The act says what shall *427constitute a newspaper. Undoubtedly the Postmaster General has latitude of judgment in deciding whether a publication meets the definition of a newspaper laid down by the law, but the courts have jurisdiction to decide whether the reasons which an administrative officer gives for his actions agree with the requirements of the statute under which he purports to act. Gegiow v. Uhl, 239 U. S. 3; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94. The fact that material appearing in a newspaper is unmailable under wholly different provisions of law can have no effect on whether or not the publication is a newspaper. Although it violates the law, it remains a newspaper. If it is a bad newspaper the act which makes it illegal and not the Classification Act provides the punishment.
There is, also, presented in brief and argument, a much broader claim in support of the action of the Postmaster General. It is insisted that a .citizen uses the mail at second-class rates not as of right — but by virtue of a privilege or permission, the granting of which rests in the discretion of the Postmaster General. Because the payment made for this governmental service is less than it. costs, it is assumed that a properly qualified person has not the right to the service so long as it is offered; and may not complain if it is denied to him. The service is called the second-class privilege. The certificate evidencing such freedom is spoken of as a permit. But, in fact, the right to the lawful postal rates is a right independent of the discretion of the Postmaster General. The right and conditions of its existence are defined and rest wholly upon mandatory legislation of Congress. It is the duty of the Postmaster General to determine whether the conditions prescribed for any rate exist. This determination in the case of the second-class rate may involve more subjects of. enquiry, some of them, perhaps, of greater difficulty, than in cases of other rates. But the function of the. Postmaster General is the *428same in all cases. In making the determination he must, like a court or a jury, form a judgment whether certain' conditions prescribed by Congress exist, on controverted facts or by applying the law. The function is a strictly judicial one, although exercised in administering an executive office.1 And it is not a function which either involvésor permits the exercise of discretionary power. The so-called permit is mere formal notice of his judgifient, but indispensable to the publisher because without it the local postmaster will not transmit the publication at second-class rates. The same sort of permit is necessary for the same bulk service at first, third or fourth-class rates.2 There is nothing, in short, about the second-class rate which furnishes the slightest basis in law for differentiating it from the other rates so fan. as the discretion of the Postmaster General to grant or withhold it is concerned.
Third. Such is the legislation of Congress. It clearly appears that there was no express grant of power to the Postmaster General to deny second-class mail rates to futuré issues of a newspaper because in his opinion it had systematically violated the Espionage Act in the past; and it seems equally clear that there is no basis for the conten*429tion that such power is to be implied. In respect to newspapers mailed by a publisher at second-class rates there is clearly no occasion to imply this drastic power.1 For a publisher must deposit with the local postmaster, before the first mailing of every issue, a copy of the publication which is now examined for matter subject to a higher rate and in order to determine the portion devoted to advertising. Act of March 3,1879, c. 180, § 12, 20 Stat. 359; Act of October 3,1917, c. 63, § 1101, 40 Stat. 327. If there is illegal material in the newspaper, here is ample opportunity to discover it and remove the paper from the mail. Indeed, of the four classes of mail, it is the second alone which affords to the postal official full opportunity of ascertaining, before deposit in the mail, whether that which it is proposed to transmit is mailable matter. But even if the statutes were less clear in this respect than they seem to me, I should be led to adopt that construction because of the familiar rule that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter. ” United States v. Delaware & Hudson Co., 213 U. S. 366, 408. For adoption of the construction urged by the Postmaster General would raise not only a grave question, but a “succession of constitutional doubts ” as suggested in Harriman v. Interstate Commerce Commission, 211 U. S. 407, 422. It would in practice seriously abridge the free*430dom of the press. Would it not also violate the First Amendment? It would in practice deprive many publishers of their property without due process of law. Would it not also violate the Fifth Amendment? It would in practice subject publishers to punishment without a hearing by any court. Would it not also violate Article III of the Constitution? It would in practice subject publishers to severe punishment for an infamous crime without trial by jury. Would it not also violate the Sixth Amendment? And the punishment inflicted — denial of a civil right — is certainly unusual. Would it also violate the Eighth Amendment? If the construction urged by the Postmaster General is rejected, these questions need not be answered; but it seems appropriate to indicate why the doubts raised by them are grave.
(a) The power to police the mails is an incident of the postal power. Congress may, of course, 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 of exclusion exercise, within limits, general police power over the material which it carries, even though its regulations are quite unrelated to the business of transporting mails. In re Rapier, 143 U. S. 110. Lewis Publishing Co. v. Morgan, 229 U. S. 288. As stated in Ex parte Jackson, 96 U. S. 727, 732: “The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importancé than the transportation of the mail. ” In other words, the postal power, like all its other powers, is subject to the limitations of the Bill of Rights. Burton v. United States, 202 U. S. 344, 371. Compare Adair v. United States, 208 U. S. 161. Congress may not through its postal police power put limitations upon the freedom of the press which if directly attempted would be unconstitu*431tional. This court also stated in Ex parte Jackson, that “Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. ” It is argued that although a newspaper is barred from the second-class mail, liberty of circulation is not denied; because the first and third-class mail and also other means of transportation are left open to a publisher. Constitutional rights should not be frittered away by arguments so technical and unsubstantial. “The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. ” Cummings v. Missouri, 4 Wall. 277, 325. The Government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of the service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open. But to carry newspapers generally at a sixth of the cost of the service and to deny _that service to one paper of -the same general character, because to the Postmaster General views therein expressed in the*past seem illegal, would prove an effective censorship and abridge seriously freedom of expression.1
How dangerous to liberty of the press would be the *432holding that the second-class mail service is merely a privilege, which Congress may deny to those whose views it deems to be against public policy is shown by the following contention made in 1912 by the Solicitor General in the Lewis Case (see Brief, pp. 46-47):
“A possible abuse of power is no argument against its existence, but we may as well observe that a denial of the mails to a paper because of its ownership or the views held by its owners may well be illegal as having no relation to the thing carried in the mails unless the views are expressed in the paper; but if such views are expressed in the paper Congress can. doubtless exclude them, just as Congress could now exclude all papers advocating lotteries, prohibition, anarchy, or a protective tariff if a majority of Congress thought such views against public policy.” (Italics in the original.) 1
(b) The right which Congress has given to all properly ciroumstaneed persons to distribute newspapers and periodicals through the mails is a substantial right. Hoover v. McChesney, 81 Fed. Rep. 472; Payne v. National Railway Publishing Co., 20 App. D. C. 581; 192 U. S. 602. Itds of the same nature as, indeed,' it is a part of, the right to carry on business which this court has been jealous to protect against what it has considered arbitrary -deprivations. Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1; Adams v. Tanner, 244 U. S. 590; Allgeyer v. Louisiana, 165 U. S. 578. A law by which certain publishers were unreasonably or arbitrarily denied the low rates would deprive them of liberty or property without due process of law; and it *433would likewise deny them equal protection of the laws. Compare Second Employers’ Liability Cases, 223 U. S. 1, 52-53. The court might hold that a statute which conferred upon the Postmaster General the power to do this, because of supposed past infractions of law, was unreasonable and arbitrary; particularly in respect to second-class mail which affords ample opportunity for preventing the transmission of unmailable matter; and hence obnoxious to the Fifth Amendment.
The contention that, because the rates are non-compensatory, use of the second-class mail is not a right but a privilege which may be granted or withheld at the pleasure of Congress, rests upon an entire misconception, when applied to individual members of a Glass. The fact that it is largely gratuitous makes clearer its position as a right; for it is paid for by taxation.1
(c) The order revoking the entry of The Milwaukee Leader to second-class mail was clearly a punitive, not a preventive measure; as all classes of mail except the second were, as the Postmaster General states, , left open to it provided it had sufficient financial resources. Of *434the three left available, the third class, being for “miscellaneous printed matter,” was an appropriate one for distributing newspapers and was the cheapest. But the additional cost to the publisher involved in distributing daily 9,000 copies by the third-class mail would be a very serious one. The actual'and intended effect of the order was merely to impose a very heavy fine, possibly $150 a day, for supposed transgression in the past. But the trial and! punishment of crimes is a function which the Constitution, Article III, § 2, cl. 3, entrusts to the judiciary.1 I am not aware that any oiher civil administrative officer has assuméd, in any cm ntry in which the common law prevails, the power to icfiict upon a citizen severe punishment for an infamous cime. Possibly the court .would hold that Congress could not, in view of Article III of the Constitution,- confer upon the Postmaster General as a mere incident in the administration of his department, authority to issue an order which could operate only as a punishment. See Wong Wing v. United States, 163 U. S. 228, 235-237.
(d) The Sixth Amendment guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed and that he shall be confronted with the witnesses against him. It is only in the case of petty offences that the jury may be dispensed with. Schick v. United States, 195 U. S. 65, 68. What is in effect a very heavy fine has been imposed by the Postmaster General. It has been imposed because he finds that the publisher has committed the crime of violating the Espionage Act» And that finding is based in part upon “representations and complaints from sundry good and loyal citizens” *435with whom the publisher was not confronted. It may be .that the court would hold, in view of Article Sixth in our Bill of Rights, that Congress is without power to confer upon the Postmaster. General, or even upon a court, except upon the verdict of a jury and upon confronting the accused with the witnesses against him, authority to inflict indirectly such. a substantial punishment as this. See Callan v. Wilson, 127 U. S. 540; Thompson v. Utah, 170 U. S. 343.
(e) The punishment inflicted is not only unusual in character; it is, so far as known, unprecedented in American legal history. Every fine imposed by a court is definite in amount.1 Every fine prescribed by Congress' is limited in amount. Statutes frequently declare that each day’s continuation of ian offence shall constitute a new crime. But here a fine imposed for a past offence is made to grow indefinitely each day — perhaps throughout the life of the publication. Already, having grown at the rate of say $150 a day, it may aggregate, if the circulation has been maintained, about $180,000 for the three years and four months since the order'was entered; and its growth continues. It was assumed in Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 111, that an excessive fine, even if definite, would violate the Eighth Amendment. Possibly the court, applying the Eighth Amendment, might again, as in Weems v. United States, 217 U. S. 349, 381, make clear the "difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice.”
The suggestion is made that if a new application for entry to second-class mail had been made the publishers might have been granted a certificate. It is no bar to proceedings to set aside an illegal sentence, that an ap*436plication to the Exécutive for clemency might have resulted in a pardon. “ .
In conclusion I say' again — because it cannot be stressed too strongly — that the power here claimed is not a war power. There is no question of its necessity to protect the country from insidious -domestic foes. To that end Congress conferred upon the Postmaster General the enormous power contained in the Espionage Act .of entirely excluding from the mails any letter, picture or publication which contained matter violating the broad terms of that act. But it did not confer— and the Postmaster General concedes that it did not confer — the vague and absolute authority practically to deny circulation to any publication which in his opiniort is likely to violate in the future any postal law. The grant of that power is construed into a postal rate statute passed forty years ago which has never before been suspected of containing such implications. I cannot believe that in establishing postal classifications in 1879 Congress intended to confer upon the Postmaster General authority to issue the order here complained of. If, under the Constitution, administrative officers may, as a mere incident of the peace time administration of their departments, be vested with the power to issue such orders as -this, there is little of substance in our Bill of. Rights and in every extension of governmental functions links a new danger to civil liberty.
Act of March 3, 1885, c. 342, § 1, 23 Stat. 387; Act of March 3, 1879, c. 180, § 17, 20 Stat. 359-360. Compare Act of October 3,1917, c. 63, § 1101,40 Stat. 327. See Message of the President, February 22, 1912, transmitting the Report of the Commission on Second-Class Mail Matter, 62d Cong., 2d sess., H. R. Doc. 559, pp. 56
Criminal Code, § 211 (obscene matter, information concerning abortion); § 212 (obscene, libelous or threatening.,matter upon envelopes. or postal cards); § 213 (matter concerning lotteries); § 215 (schemes to defraud)/§ 217 (poisons, insects, reptiles, explosives, intoxicating liquors); by Act of March 4, 1911, c. 241, § 2, 36 Stat. 1339, § 211 of the Criminal Code, supra, was amended to include matter of a character to incite arson, nun-der, or assassination; by Act of March 3,. 1879, c. 180, § 15, 20 Stat. 359, matter violating copyright laws was excluded; by Act of July 31, 1912, c. 263, § 1, 37 Stat. 240, prize-fight films were excluded; by Act of March 3,1917, c. 162, § 5, 39 Stat. 1069, advertisements and solicitations for orders for intoxicating liquors in prohibition States.
Like punishment is provided in all statutes referred to in note 1, p. 418, supra except that mailing matter violative of the copyright law is not punishable criminally. The maximum punishment for mailing prize-fight films is a fine of $1,000 and imprisonment for one year.
Criminal Code, §§ 211, 212, 213, 217; Act of March 3, 1917, e. 162, § 5, 39 Stat. 1069; Espionage A.ct of June 15,1917, c. 30, Title XII, 40 Stat. 230.
Orders excluding individual issues of newspapers or periodicals because of unmailable matter contained therein were sustained in Masses Publishing Co. v. Patten, 246 Fed. Rep. 24; Anderson v. Patten, 247 Fed. Rep. 382. In Post Publishing Co. v. Murray, 230 Fed. Rep. 773; and Brooklyn Daily Eagle v. Voorhies, 181 Fed. Rep. 579, such orders were enjoined as being unwarranted by the facts. See also Davis v. Brown, 103 Fed. Rep. 909.
Revised Statutes, § 3929, as amended by Act September 19, 1890, c. 908, § 2,26 Stat. 465, as amended by Act March 2,1895, c. 191, § 4, 28 Stat. 964.
By § 2 of the Act of May 16,1918, c. 75,40 Stat. 554 — enacted after this case had gone to judgment in the trial court — authority was conferred upon the Postmaster General to stop, in like manper, delivery
*424of mail to a person whom he finds “upon evidence satisfactory to him” to be using the mails in violation of the Espionage Act.
In the Sixty-third Congress, Third Session (1915) a bill, H. R. 20644, was introduced to deny absolutely the use,of the mail'to any person who, in the opinion of the Postmaster General, “is engaged or represents himself as engaged in the. business of publishing any books or pamphlets of an' indecent, immoral, scurrilous or libellous character.”' It .was objected: The, “bill would invest one man . . . with the power to destroy the business of a publisher without affording any opportunity-'for trial by jury, according to regular court practice. The punishment which may be inflicted upon a publisher by the Postmaster General under the provisions of this bill is most severe, absolutely depriving him of the privilege of using the United States mails, even for legitimate purposes. . . . Furthermore, this bill makes it possible for the Postmaster General-to inflict what is practically a confiscatory penalty for an offence not clearly defined. .' . . Under such circumstances as these it is not safe to leave to the decision jof one man, after an ex parte investigation, a decision which will involve the freedom of' the press. Trial by jury and a penalty inflicted for' each specified act is the only safeguard against an arbitrary and tyrannical power.” ' The bill failed of passage. Hearings -before Committee on Post Office and Post Roads, February 1,1915, On Exclusion of Certain Publications from the Mails, pp. 38, 39, 63rd Cong.' 3d sess. See The Postal Power of Congress, by Lindsay Rogers, Johns Hopkins University Studies (1916, Series XXXIV, No. 2), pp. 158,159.
In a letter to Senator Bankhead the Postmaster General said:
“I will state generally with regard to the action of the Department that no newspaper, of periodical has been denied the privilege of the mails as such. Particular issues of certain publications have, been found to contain matter which would interfere with the operation or success of the military or naval forces . . . etc., etc. . . . and therefore nonmailable under the act in question.” Cong. Rec. Aug. 22; 1917, pp. 6851-6857. See also a letter to Mr. Moon, Chairman of the House Committee on Post Offices and Post .Roads, House Report No. 109, 65th Cong., 1st sess.
Act of March. 3, 1879, c. 180, § 14, 20 Stat. 359: “That the conditions upon which a publicatioh.shall be admitted to the second class are as follows:
•First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively.
Second. It must be issued from a known office of publication.
Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications.
Fourth. It must be originated, and published for the dissemination of information of a piiblicxcharacter, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers; Provided, hoioever, That nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal' rates.”
Act of August 24, 1912, c. 389, § 1, 37 Stat. 550, applying to publications of benevolent, professional, etc., societies, educational institutions, state boards, trade unions, etc.
Act of August 24, 1912, c. 389,-§ 2, 37 Stat. 553, requiring a sworn statement of the names of editors, owners, stockholders, bondholders, etc., and that all paid matter be plainly marked “advertisement.” Lewis Publishing Co. v. Morgan, 229 U. S. 288.
In a letter to Senator Bankhead August 22, 1917, Cong. Rec. pp. 6851-6857, submitted at. the argument,, the Postmaster General said: ' “For many (?) years this Department has held publications not to be ‘regularly issued’ in contemplation of law when any issue contained,, non-mailable matter; and when the second-class privilege has been withdrawn under such circumstances, the'formal notice of withdrawal has contained the statement that the second-class privilege has been revoked on both the grounds stated.”
In his report for the year ending. June 30, 1918, the Postmaster General'says, p. 46:
“In the administration of the law governing second-class matter it was again found necessary to revoke the second-class mail privilege of some publications for the reason that their contents consisted more or less of matter which was non-mailable under the Espionage and other laws, and which, therefore, removed them from the class-cif publications entitled to that privilege.”
The statement is repeated in the Postmaster General’s report for the year ending June 30, 1919. p. 25.
The orders of the Postmaster General excluding periodicals from second-class mail, sustained in Houghton v. Payne, 194 U. S. 88; Bates & Guild Co. v. Payne, 194 U. S. 106, and Smith v. Hitchcock, 226 U. S. 53; as well as the fraud orders sustained in Public Clearing House v. Coyne, 194 U. S. 497, and that with which the court refused to interfere by certiorari in Degge v. Hitchcock, 229 U. S. 162, involved merely decisions of this nature. In American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, his fraud order was set aside because wholly unwarranted by the facts.
Under recent legislation a “permit” may be issued for either first, third or fourth-class mail. Under Act of April 28, 1904, c. 1759, § 2, 33 Stat. 429, 440, as amended by Act of May 18, 1916, c. 126, § 13, 39 Stat. 159, 162, and Act of April 24/1920, c. 161, 41 Stat. 574, identical articles may be deposited in large • quantities without stamps áffixed-and sent .at first, third or fourth-class rates, according to their nature, by paying the postage in advance in cash in a lump sum.
In the one case where drastic preventive measures were considered necessary — in the case of the foreign language press — Congress granted discretionary power to the Postmaster General specifically and in plain terms. By Act of October 6, 1917, c. 106, § 19, 40 Stat. 425 (The Trading With The Enemy Act), it was provided that, until the end of the war, foreign language papers should be nonmailable unless a translation should.have been previously filed with the local postmaster, but that the Postmaster General might at his discretion grant a permit to mail without such translation.- This act applied to publications sent by any olass of the mails.
See “Freedom of Speech” by Zechariah Chafee, Jr., pp. 105-109, 233-234; also p. 199: “A newspaper editor fears being put out of business by the administrative denial of the second-class mailing privilegé much more than the prospect of prison subject to a jury trial.” It has been uniformly held that a statute prescribing similar penalties for failure to observe its provisions or the order of a public service commission, although made after- full hearing, is a deterrent so potent as to amount to a denial of the right to a judicial review, and operate as a taking of property without due process of law in violation of the Fourteenth Amendment. Ex parte Young, 209 U. S. 123, 147; Missouri Pacific Ry. Co. v. Tucker, 230 U. S. 340, 349; Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 662; Oklahoma Operating Co. v. Love, 252 U. S. 331, 337.
It was, perhaps, in reference to this contention that the court said in closing its opinion in that case (p. 316): “We do not wish even by the remotest implication to be regarded as assenting to the broad contentions concerning the existence of arbitrary power through the classification, of the mails, or by way of condition embodied in the proposition of the Government which we have previously stated.”
This is trae, although the deficit is covered directly, in large part, by profits on first-class mail. The net cost of this service to the Government was, before the World War, equal to one-tenth of its expenditures for all other than postal purposes. Compare Lewis Publishing Co. v. Morgan, 229 U. S. 288, 304, with 34. Statistical Abstract of the United States (1911) p. 656. The justification for this non-compensatory service lies in the belief that education in its broad sense — intellectual activity fostered through the dissemination of information and of ideas — is essential to the life of a free, self-governing and striving people. This non-compensatory service is comparable to many rendered by the Government, e. g., to the facilitation of communication and commerce by port, canal, passport or consular services, for all of which only small charges, or none, are made.
That a Government furnishing public service must be judged by ordinary standards of public callings, see Chafee on Freedom of Speech, p. 109, citing H. J. Laski in 31 Harvard Law Review, 186, and Laski’s Authority in the Modern State, p. 378.
Compare Harbor Commissioners v. Redwood Co., 88 Cal. 491; Cleveland, etc., Ry. Co. v. People, 212 Ill. 638; Langenberg v. Decker, 131 Ind. 471; In re Sims, 54 Kan. 1.
Compare Morris v. State, 1 Blackf. (Ind.) 37, 38; State v. Bennett, 4 Dev. & B. (N. Car.) 43, 50; Easterling v. State, 35 Miss. 210.