"in favor of their authority"-" against the title or immunity especially set up," etc. are to be eliminated from the section, it must be construed as giving, not a mutual or reciprocal right of review of Federal questions decided in the state courts, but an unilateral right of review, dependent upon the way in which the question was decided in the state court.

The distinction has been recognized by this court in cases without number. See Whitten v. Tomlinson, 160 U. S. 231, 238; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 695; Holder v. Aultman, 169 U. S. 81, 88; Field v. Barber Asphalt Co., 194 U. S. 618, 620.

The terms of § 237, Judicial Code, are not new. Except for using the word "especially" instead of “specially" the jurisdictional clause is identical with the corresponding clause in § 709, Rev. Stat., under which it has been uniformly held that this court has no general power to review or correct the decisions of the state courts, and is authorized only to protect against alleged violations in state court decisions of rights arising under the Federal authority; that it was not the purpose of Congress to authorize a review by this court whenever a Federal question is decided in a litigation in a state court, but was to prevent the state jurisdictions from impairing or frittering away the authority of the Federal Government by failing to give full force to the statutes, etc., established by that Government; and that therefore the writ of error will lie only when the decision is adverse to the Federal right asserted in the state court by the plaintiff in error; and that a decision in the state jurisdiction upon a Federal question, however erroneous the decision may be, is not to be corrected in this court if the decision be in favor of the right or immunity that is set up under the Federal authority. Montgomery v. Hernandez (1827), 12 Wheat. 129, 132; Hale v. Gaines (1859), 22 How. 144, 160; Murdock v. City of Memphis (1874), 20 Wall. 590, 626; Mis

souri v. Andriano, 138 UT. S. 496, 499; Jersey City & Bergen R. Co. v. Morgan, 160 U. S. 288, 292; DeLamar's Nevada G. M. Co. v. Nesbitt, 177 U. S. 523, 528.

In all these cases the word "immunity," as used in § 709, Rev. Stat., like the associated words "title, right, privilege," has been given its normal affirmative force; the clause meaning not that the plaintiff in error may have merely denied a Federal right asserted against him by his adversary, but that he must have claimed exemption from a liability or obligation asserted against him on grounds of state or of Federal law, by specially setting up an immunity because of some statute, or treaty, or constitutional provision of the United States.

The more recent decisions that are sometimes supposed to have given a different construction to § 709, do not, upon critical examination, bear out this view. Nutt v. Knut, 200 U. S. 12, 19, and cases cited; Texas Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 434, etc.; Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573, 591; Creswill v. Knights of Pythias, 225 U. S. 246; Seaboard Air Line Ry. v. Duvall, 225 U. S. 477. An apparent exception is St. Louis, Iron Mountain & S. Ry. v. Taylor, 210 U. S. 281, 291, etc. But in that case the plaintiff in error did at least assert a special construction of the Federal act upon which its adversary's suit was based, and upon that special construction claimed an exemption from liability.

I am unable to find in § 709, or in previous decisions of this court, any authority for a review by this court of a decision by a state court sustaining a defendant's liability in an action founded upon a Federal law, although such decision be excepted to; or for reviewing a state court decision that, instead of impairing or limiting the effect of an act of Congress, is alleged to enlarge its scope and effect and the consequent responsibility of a defendant thereunder.

LEWIS PUBLISHING COMPANY v. MORGAN, POSTMASTER IN NEW YORK CITY.

JOURNAL OF COMMERCE AND COMMERCIAL BULLETIN v. BURLESON, POSTMASTER GENERAL OF THE UNITED STATES.1

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Nos. 819, 818. Argued December 2, 3, 1912.-Decided June 10, 1913.

From the beginning Congress, in exerting its power under the Constitution to establish post-offices, has acted upon the assumption that it is not bound by any hard and fast rule of uniformity, and has always assumed the right to classify in its broadest sense. Congress always has given, and subject only to the express limitations of the Constitution, can give, special mail advantages to favor the circulation of newspapers, and has also fixed the general standard and imposed conditions upon which these privileges can be obtained. The provisions in § 2 of the Post Office Appropriation Act of 1912 regarding publications and conditions under which they can be carried in the mail construed and held, that:

Those provisions are intended simply to supplement existing legislation relative to second class mail matter, and not as an exertion of legislative power to regulate the press, curtail its freedom or to deprive one not complying therewith of all right to use the mail service.

A provision in a departmental appropriation act gives rise to the inference that it concerns the general subject under control of that Department.

A provision in a post-office appropriation act referring to the entering of mail matter refers to second class mail as that is the only class to which the word enter" can apply.

Requirements in the second paragraph of a statutory provision held to apply to articles enumerated in the preceding paragraph

1 See post, p. 600, for proceedings on motion for restraining order in this case.

229 U.S.

Argument for Appellant.

when the words used cannot otherwise be reasonably construed, and when it also appears that as passed by the first enacting chamber the two paragraphs subsequently divided were embodied in one paragraph.

A penalty of denial of the privileges of the mail for failure to comply with requirements applicable only to second class matter does not amount to entire exclusion from use of the mail.

Requirements in regard to publications entitled to be entered as second class mail and sanctioned by the penalty of exclusion from the privileges of such second class, are not to be construed as independent regulation of such publications, but only as condition precedent to retaining the privileges of second class mail after entry of the publication; and so held as to the provision that paid for matter in periodicals must be marked "advertisement " under penalty of exclusion from the privileges of the mail.

Legislative history of a statute can be examined to enable the court to construe it.

The requirements in § 2 of the Post Office Appropriation Act of 1912 that certain specified information be presented to the Postmaster General and that all paid for matter, editorial and otherwise, be marked "advertisement " under penalty of exclusion from the privileges of the mail, held, not to be an unconstitutional abridgment of the freedom of the press protected by the First Amendment or a denial of due process of law under the Fifth Amendment, or as a denial of the use of the mail, but only a requirement relating to second class mail matter sanctioned by exclusion from the privileges of the mail in that regard.

THE facts, which involve the constitutionality and construction of the provisions in the Post Office Appropriation Act of 1912 in regard to privileges of second class mail matter accorded to magazines and other publications, are stated in the opinion.

Mr. James M. Beck, for Lewis Publishing Company, appellant in No. 819:

To adopt the Government's narrow construction of this statute would be judicial legislation. Its provisions are plain and free from ambiguity. Failure to comply with its requirements subjects "every newspaper" to a denial VOL. CCXXIX-19

Argument for Appellant.

229 U. S.

of "the privileges of the mails"-not the advantages of second class rates only, but the privilege of using the mail for any purpose.

The act has been thus interpreted by the Attorney General, the Postmaster General, the press and the public. Its position in the appropriation act confirms this interpretation, for it is not included in the subdivision relating to second class matter, but in that which deals with miscellaneous and general legislation. The views expressed by its proponents in Congress confirm the same interpretation.

The present attempt to restrict its meaning was an afterthought to save its constitutionality.

While it is true that this court will accept of two "reasonably susceptible" interpretations the one which is most free from constitutional objection, yet this court should not, in applying this salutary doctrine legislate by reconstructing a statute. United States v. Reese, 92 U. S. 214; James v. Bowman, 190 U. S. 127.

Either construction of the statute, however, makes it unconstitutional. The difference is one of degree but not of kind. Congress can neither enlarge the powers of the Federal Government over the newspaper press by the duress of exclusion from the mails nor by the inducement of preferential rates. In either event such a statute is an attempted "accomplishment of objects not entrusted to the Government" and therefore "not the law of the land." McCulloch v. Maryland, 4 Wheat. 423. Otherwise Congress could indirectly legislate as to many matters which, under the Tenth Amendment, were reserved to the States, by the simple device of compelling a citizen to do things, in themselves beyond Federal power, if he wishes to use the mails, and such a privilege being vital, the citizen would have no choice but obedience to an unconstitutional statute.

This case draws sharply the vital issue between an