delivered the opinion of . the court.
The Post Office Appropriation Act of August 24, 1912, 37 Stat. 539, 553, 554, c. 389, in § 2, contains the following:
“Sec. 2. ... . That it shall be the duty of the editor, publisher, business manager, of owner of every newspaper, magazine, periodical, or other publication to file with the Postmaster General and the postmaster at the office at-which, said publication is entered, not later than the first day of April, and the first day of October of each year, on blanks furnished by the Post Office Department, a sworn statement setting forth the names and post-office addresses of the editor and managing editor, publisher, business managers, and owners, and, in addition, the stockholders, if the publication be owned by a corporation; and also the’ names of known bondholders, mortgagees, or other security holders; and also, in the case of daily newspapers, there shall be included in such statement the average of the number of copies of each issue of such publication sold or distributed- to paid subscribers during the preceding six months: Provided, That the provisions of this paragraph shall not apply to religious, fraternal, temperance, and scientific, or other similar publications: Provided further., That it shall not be necessary to include in such statement the names of persons owning less than one per centum of the total amount of stock, bonds, mortgages, or othér securities. A copy of such sworn statement shall be published in the'second issue of such newspaper, magazine, or other publication printednext after the filing of such statement. Any such publication shall be denied the privileges of the mail if it shall fail to comply with the provision's of this paragraph within ten days after notice by registered letter of such failure.
“That all editorial or other reading matter published in any such newspaper, magazine, or periodical for the publication of which money or other valuable consideration is paid, accepted, or promised shall be plainly marked ‘advertisement.’ Any editor or publisher printing editorial or other reading matter for which compensation- is paid, accepted or promised without so marking the. same, shall upon conviction in any court having jurisdiction, be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500).”
The two appellants, publishers -of newspapers' in the City of New York, complaining that this legislation abridged the freedom of the press -protected by the nirst, and constituted a denial of the due process of law guaranteed by the Fifth, Amendment to the Constitution, filed their bills against designated officials of the .United States to prevent the enforcement of the .provision in question. The bills were dismissed for want of equity and this appeal was taken directly to this court, because of the rights asserted under the Constitution. Coming to define the controversy in'order toN appreciate and restrict the issues to the end that we may pass on none-but the questions which, are necessary to be decided, it is to be observed that there are some differences in the mode in which the cases are stated in the pleadings and in the argument. But after all, 'these divergencies give rise to no real -distinction between the two cases and we hence treat them as ode. At the outset, in order to state in the most direct way the grievances which the publishers deem they have suffered, we reproduce, retaining the italics, the statement made on that subject in the opening passages of the argument of" the counsel for the Lewis Publishing Company:
"The newspaper law, whose constitutionality is in this suit called into question, is neither in form nor substance a law to regulate the carriage of the mails but to regulate journalism.
“In this respect it has the merit of sincerity: It does not pretend to be in aid of the Post Office Department. That Department did not seek its enactment but protested against it.
“ The law in question makes no reference, to the mails except that it uses exclusion therefrom as a means of enforcing this censorship of the press.
“Even this remote connection is wanting in the latter section of the law, which requires paid reading matter •to be formally branded as an advertisement. Its enforcement is left to a criminal action for a penalty.
“ The law has two plainly avowed objects.
“The first is to compel a disclosure to the Government, under oath, of the names and addresses of the editors, publishers, business managers and owners, stockholders, security creditors and the daily circulation of such newspapers for the preceding six months.
“ This will be hereafter referred to as the inquisitorial provision.
“ The second object is to compel a disclosure to the public through newspaper publication of these facts and also whether any editorial or reading matter in such publication has been inserted for a valuable consideration.
“ This will be hereafter referred to as the publicity provision.
“ The publicity provision cannot be referred to any proper function of the Post Office Department. Its function is to carry the mails and in such carriage it cannot matter whether the public- are advised as to the ownership, editorial direction and circulation of a newspaper or not, or whether the matter which it publishes is published for a consideration.”
.And thus interpreting the ..assailed provision not as a
‘G. The Constitution has not either under the Post Itoads clause or elsewhere delegated to the Federal Government. the power (1) to -compel these disclosures and (2) to direct, t-lieir publication or (3) to compel paid reading matter to be marked as an advertisement.
“2. The Constitution not only failed to give such power but it expressly forbade it, by the First Amendment, prohibiting any law ‘abridging the freedom of the press.’
“3. The requirement that a certain class of newspapers shall disclose to the public by publication the most intimate details of their business, and use their own capital, labor facilities and valuable space for such disclosure, is a taking of ‘liberty’ and ‘property’ without due process of law and a like taking of valuable property rights for an ■assumed public use without just compensation.”
On the other hand, putting aside what we deem to be minor subdivisions, broadly stated, all the contentions of the Government are reducible to the following: (a) That the assailed provision in no sense can be considered as an attempted exertion of power to regulate the freedom of the press or even as the exercise of -the legislative authority to regulate the mails in the larger or general sense of that term since, when rightly construed, the provision only deals with what is- known as second class mail matter, and imposes conditions necessary to be complied with to
From this statement of the opposing contentions it is apparent that the first and fundamental cause of difference arises from the widely conflicting views entertained concerning the meaning of the assailed provision, and that hence it becomes primarily necessary to settle such differences, that is, to determine • the true meaning of the provision. Moreover, as the controversy concerning the meaning of the provision involves its - relation to the law concerning the carriage of newspapers in the mails in force at the time of the pássage of the''provision and an appreciation of its letter and spirit, it also becomes necessary’ to consider that law, its and development.
An abstract of the laws relating to’the postal service from early Colonial times (1639), and under the Constitution down to, .and including the year 1888, will be found in the report of the. Postmaster General for the year 1888. A condensed yet comprehensive statement of the. general
A consideration of the abstract made by the Postmaster General above referred to and of the synopsis contained in the report of the Commission, leaves no doubt that from the beginning Congress, in exerting the power to establish post-offices arid post-roads, has acted ripon the assumption that it was not bound by any hard and fast rule of uniformity, that is to say, that in exerting its power on the subject of the mails it has always considered that the right to classify in the broadest sense was enjoyed, and, consequently, depending upon conceptions of public good to be accomplished irrespective of the mere cost of carriage, the rates of mail have varied and the privileges accorded have changed from time to time. All the power which has been exerted is derived from the grant to Congress, in Art. I, § 8 of the Constitution to establish post-offices and post-roads. And the wise combination of limitation with flexible and fecund adaptibility of the simple yet comprehensive provisions of the Constitution are so aptly illustrated by a statement in the argument of the Government as to'the-development of the postal system; that we insert it as follows:
''Under that six-word grant of power the great postal system of this country has been built up, involving an annual revenue and expenditure of over five hundred millions of dollars, the maintenance of 60,000 post offices, with hundreds of thousands of employes, the carriage of more than fifteen billions of pieces of mail matter per year, weighing over two billion of pounds, the incorporation of railroads, the establishment of the rural free delivery system, the money-order system, by which more .than a halfa billion of dollars a year is transmitted from person to person, the postal savings bank', the parcels post, an aeroplane mail service, the suppression of lotteries, and a most efficient suppression of 'fraudulent and criminal schemes impossible to be reached in any other way.”-
Only particularly concerned as we are with the legislation relating to the carriage of newspapers in the -mails we need not stop to generally demonstrate the accuracy of the statements we have made. An abstract from and reference, to the statutes chronologically arranged, relating particularly to discriminations in favor’ of the carriage of newspapers in the mail, will be found in a statement made by W. A. Glasgow, Jr., Escp, before the Postal Commission of 1906-7, forming part of House Document, vol. 98, beginning at p. 641. And a consideration of the statutes referred to in this abstract will demonstrate the legislative inauguration of and persistent adhesion to what is aptly described in the report of the Commission on Second-class Mail Matter as “the historic policy of encouraging by low postal rates the dissemination of current intelligence.” Indeed, we think also that it is not open to controversy that a review of these statutes will demonstrate that it. was always conceived not only that Congress might so exert, its power as to favor the circulation of newspapers, by giving special mail advantages, but that- it also possessed the authority to fix a general standard to which publishers seeking to obtain the proffered privileges must conform in order to obtain them. Nothing affords a more apt illustration of the assumed existence of the power in Congress to discriminate on the subject than was shown as early as 1845 by the act of March 3 of that year, 6 Stat. 736, c. 43, § 9, by which, although there was secured to the Government a virtual monopoly in the transportation “of any letters, packets, or packages of letters,” by forbidding the establishment of “any private express or expresses” for their conveyance on mail routes, it was declared that the
But it is useless to pursue the subject in detail, since as the result of legislation, beginning with the act of March 3, 1863, c. 71, 12 Stat., pp. 701, 704
et seq.,
and embracing statutes which are noted in the margin,
1
it had come to pass on August 24, 1912, when the provision here assailed was enacted, that mail matter, disregarding mere subordinate subdivisions, was divided into four general classes, the first class embracing letters and printed matter, the second class covering newspapers and periodicals, the third, books and pamphlets and the fourth merchandise. And it is obvious and is not disputed, that the classification thus adopted was based, not upon merely inherent distinctions or differences in the nature and character of the articles as mailable matter,and the cost of their carriage, but rested upon broad principles of. public policy; in other words, upon the conceptions of Congress as to how far it was wise for the general welfare to give advantages to one class not enjoyed by another. It is not necessary to stop to enumerate the exceptional privileges, and great advantages which were offered to publishers of newspapers by the classification thus adopted, since it is not questioned that as a result of giving them the benefits of the second class rates, pecuniary advantages of great consequence to them resulted which when conjoined with the exceptional administrative and other privileges, which were accorded under' that classification "undoubtedly operated a very groat discrimination in
But the mere distinction between the classes is not the only measure of the exceptional privileges accorded to publishers, for within the second class under which they are placed, advantages aré given them not possessed by others in that class. For instance, the postage on a newspaper coming under the second class rate when mailed by an individual is higher than is the rate of postage exacted for the mailing of the same newspaper by publishers or news agents. While it cannot be questioned that the conferring of the" special privileges above stated, were at least in form a discrimination against the public generally, beyond doubt, however, in.the.legislative mind they were deemed not to be of that character because the purpose of their bestowal was to secure to the public the benefits to result from “the wide disseminatibn of intelligence as to current events.” Certain, however, as is this view, it is equally also certain that for the. purpose of securing the
“Sec. 14. That the conditions upon which a publication 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 pubr lication.
“Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguished printed books for preservation from periodical publications;
“Fourth. - It must be originated and published for thé dissemination óf information of a public character, -or devoted to literature, the sciences, arts, or some special industry,, and having a- legitimate list of subscribers; Provided, however, That nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, of for free circulation, or for circulation at nominal rates.”
And the long settled administrative practice in enforcing these conditions serves to show what was. deemed to be their importance and.the necessity for applying them to the end that the results intended to be-accomplished by Congress might be realized. Prior to 1887 the enforcement of the conditions exacted as a prerequisite to the enjoyment of second class mail privileges depended upon the action of postmasters throughout the United States and although in the discharge of their duty they were governed by regulations and instructions promulgated by the Post Office Department, there was certainly laxity
It is true to say that these regulations promulgated in 1887, modified in some respects not material here to be considered, were continuously in force from their adoption up to the tinie the statutory provision here in question was enacted, and had therefore been in operation for about twenty-five years.
In the light of this statement concerning the evolution of the law, as to mail-matter and its classification, as it existed at the time the provision here involved was enacted, we come, to dispose of the. controversy as'to the meaning of that provision, the question which we are' called upon to solve being this:
Whs the provision intended simply to supplement the existing legislation relative to second class mail matter,or was it enacted as an exertion of legislative power to regulate the press, to curtail its freedom, and under the assumption that there was a right to compel obedience to the.command of legislation having that object in .view, to deprive one who refused to obey, of all right to use the mail service? When the question is thus defined its solution is ■free from difficulty, since by its terms the provision only regulates second class mail, and the exclusion from the mails for which it provides is not an exclusion from the mails generally, but only from the right to participate in and enjoy the privileges accorded by the second class classification.
The reasons which cause us to think this to be the case are these: (a) Because the provision is part of a post-office appropriation act and naturally therefore, gives rise to the inference that it concerns the general subject of the mails, there being an entire absence of anything justifying even a surmise, if such a point of view could be indulged in under any circumstances, that Congress was intentionally exerting power not delegated to it and consciously
Further, we think that because as finally enacted the provision which was in one paragraph as it passed the House of Representatives, in the Senate was divided into two paragraphs; affords no ground for contending that the requirement as to advertisements contained in the second printed paragraph is not embraced within and controlled by the conclusion we have stated. We say this because the second printed paragraph by reference clearly manifests that its provision applied to “such” newspapers, periodicals, etc., that is, the newspapers or periodicals covered by the first paragraph and which by its terms are submitted to the duty of entry in order to enjoy the privileges conferred. Nor do we think there is in reason ground to support the proposition that because the provision sanctioned the duty to make entry by an exclusion from
. Equally wanting in force is the further, contention that because the regulation in' the second. paragraph to the effect that paid matter shall be marked as advertisement is sanctioned by a penalty, therefore, at least as to such provision, an independent regulation of the press was intended, divorced from the requirements as to entry contained in the first paragraph. We reach this conclusion-because when the paragraph referred-bo is accurately considered it makes more cogent the view we have taken and additionally demonstrates that the legislative mind in enacting, it,. was sensitively alive to the fact that the provision alone concerned the 'privileges of second class mail, and'the-administrative rule which for so many years prevailed on the subject. In other words, that as, under existing administrative regulations,, the exactions as to entry contemplated conditions existing at the time of the application for entry, and the condition as to advertisements concerned conduct of a publisher after entry, which could not therefore be a condition precedent to entry, a penalty for the latter was devised in order to harmonize with the requirements as to admission to the second class mail.
“The extremely low postage, rate accorded to. secondTilass matter gives these publications' a circulation and a corresponding influence unequaled, in history. It is a common belief that many periodicals are secretly owned or controlled, and that in reading'such papers the public is deceived through ignorance of the interests the publication represents. We believe that, sincq the general public bears a large portion of the expense of distribution of second-class matter, and since these publications wield a large influence because of their special concessions in the mails, it is n’ot only equitable but highly desirable that the public should know the individuals who own or control them.”
As therefore the assailed provision when rightly- construed only affixes additional conditions for admission to a privileged class, of mail, and it was merely designed to provide for the continuance on compliance with designated conditions of a system-under which vast sums of public
We come then to determine Whether the provision as thus construed is valid.. 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 purpose of furthering the public welfare as it understands it, we think it too clear for anything but statement; the exertion of the power of course, at all times and under all conditions being subject to the express or necessarily implied limitations of the Constitution. From 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 considered intrinsically,' apparently seriously discriminates against the public and in favor of newspapers, periodicals, etc., and their publishers. Although in the form in which the contentions here made 'by the publishers which we have at the outset reproduced,' as. literally stated, seem to challenge this proposition by suggesting that the power of Congress to classify is controlled and limited by conditions intrinsically inhering in the carriage of the mails, we assume that such apparent contention was merely the result of an unguarded form of statement, since we cannot bring our minds to the conclusion that it'was intended on behalf of the publishers to generally assail -as an infringement of the constitutional prohibition against the invasion of the freedom of the press the legislation which for a long series of years has favored the press by discriminating so as to secure to it great pecuniary and other concessions
Let us consider the matter from the historical and from the inherent standpoint. Under the statute, as we have seen, for a long series of years a püblication primarily devoted to advertisements was not entitled to the benefit of the second class classification, and by a long administrative construction, embodied in the regulations, the disclosure of the names of the proprietors as well as of ’the
It may be deemed from what we have said in considering the asserted repugnancy oí the' conditions imposed by the provision under examination that we have assumed that if the attack made upon such conditions was well founded and they therefore would disappear, nevertheless the right to. continue to enjoy the second class mail privileges would remain, but we have not considered that subject and intimate no opinion upon it.
Finally, because there has developed no necessity of passing on the question, 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.
Decrees affirmed.
Notes
Act of .June 8, 1872, c. 335, §§ 99 el seq., 17 Stat. 283, 296; June 23, 1874, c. 456, §§ 5 el seq., 18 Stat. 232; July 12, 1876, c. 179, §.15, 19 Stat. 78, 82; March 3, 1879, c. 180, § 7 el seq., 20 Stat. 355, 358; June 9, 1884, c. 73, 23 Stat. 40; March 3,1885, c. 342, 23 Stat. 385, 387; July 16, 1894, c. 137, 28 Stat. 105; June 6, 1900, c. 801, 31 Stat. 660; May 12, 1910, c. 230, 36 Stat. 366. See, also, act of August 24, 1912, 389, 37 Stat., p. 551.
From Postal Laws and Regulations — ed. 1902, p. 198.
V. — Applications for Entry of Publications as Second Class Matter.
Sec. 438. When a publication, not included in sections 429 and 430 (sec secs. 427 and 428), is offered for mailing for the first lime at ihe second-class rates of postage the postmaster shall require the proprietor or his duly authorized representative to make and present to him, with two copies-of the publication, sworn answers in writing (on Form 3501) to the following interrogatories:
(1) How often is the. publication issued?
(2) Whore is the “known office of publication” ? (If in a city give street and number.)
(3) Where is it printed?
(4) Who are the proprietors?
(5) Are they in any way interested pecuniarily in any business or trade represented by the publication, either in the reading matter or in the advertisements? If so, what is the interest?
(0) Who are the editors of the publication, and how is their compensation determined?
(7) Have the editors any pecuniary interest in any business or trade represented by the publication, either in the reading matter or in the advertisements? If so, what is the interest?
(8) Can any house in good standing advertise in your publication at the regular published rates?
(9) Are advertisements of competitors accepted at the usual rates?
(10) Have any of the business houses which advertise in your pub
(11) What is the greatest number of copies furnished to any person ' or firm advertising in your publication?
(12) On what terms arc these papers furnished?
(13) What number of copies do you print of each issue?
(14) What number of bona fide subscribers have you. for the next issue-of your paper, made up as follows:
a. Direct individual subscriptions to publisher without premium?
b. Direct individual subscriptions to publisher with premium?
c. Direct individual subscriptions in clubs or through clubbing arrangements?
d. Copies regularly sold over publishers’ counter to purchasers of individual copies? - -
e. Copies regularly sold by newsboys? ■
/. Regular sales of consecutive issues by hews agencies?
g. Bulk purchases of consecutive issues by news agencies for sale without the return privilege?
h. Copies'to advertisers, one to each to prove advertisement?
i. Bona fide exchanges, one copy for another, with existing -second-class publications? • '
(15) What is the subscription price of your publication per annum?
(16) How many pounds weight will cover the papers furnished to regular subscribers? - •
(17) What average number of specimen copies with each issue do you desire to send through the mails at the pound rate?
(18) 'How are the names of the persons- to whom sample .copies are to be sent obtained?
(19) What disposition is made of the excess, if any,.of copies.printed over those furnished to subscribers, news agents, including newsboys, and as sample copies.