probative force with other minds, that Mr. Dauphin is engaged in conducting a fraudulent lottery he may and should forbid the delivery of money orders to him, and instruct postmasters to return to the senders all registered letters addressed to Mr. Dauphin.'

Sec. 285. On November 12, 1879, the Postmaster-General issued a "fraud order" under sections 3929 and 4041, R. S., U. S., against M. A. Dauphin, and, in December, 1879 Dauphin filed his bill of complaint in the Supreme Court of the District of Columbia, against the Postmaster-General, denying the facts on which the order was based, averring irreparable injury to himself and asking an injunction against the further execution of the order. The complainant contended that the action of the Postmaster-General, in issuing this order, violated the rights and privileges guaranteed to him by the Constitution of the United States. Mr. Justice Cox, delivering the opinion of the court, held, that the Constitution conferred the power on Congress to establish postoffices and postroads, but this does not impose the duty on Congress to do this; that Congress may provide just such mail facilities as it thinks proper and may, from time to time, change and regulate the whole postal system at its discretion, as it might leave the whole work of mail communication to the States or individual enterprise. "It can not, therefore," said the court, "be said that the citizen of the United States has any absolute constitutional right, or, in other words, that it is one of the privileges of his citizenship, that his letters shall be carried by the United States, at all; and still less, that they be carried in any special manner. Whatever rights he may have in this respect exist in the discretion of the Legislature and are entirely different from those fundamental rights to life, liberty and property, which are secured by the Constitution. Since then, Congress may or may not, in its discretion, provide a postal system for public convenience, it is difficult to say what conditions it may not impose to its use and enjoyment. But,

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while the absolute right of the citizen to have this business convenience provided for him can not be maintained, it may be

said the right exists under the Constitution conditionally; that if Congress shall once exercise its discretionary power, it can not discriminate between persons or classes of persons; it must legislate for all alike; all the citizens of the United States have a constitutional right to equal participation in the benefits of legislation and the use of any instrumentality created by it, unelss, at least the exclusion be imposed by way of punishment for crime and that, after due conviction only; and that any condition, destructive of this equality, is repugnant to the spirit of the Constitution." The learned Justice then goes on to show that while, theoretically, the principle of equality underlies all republican government, yet, when the principle is applied in practice, we find it can be accepted only with distinctions and qualifications. He gives, as instances, the granting of the franking privilege to a few, to the granting of pensions, in the imposing of discriminating duties on imports to encourage home enterprise, by which one class of importers bears burdens not imposed on others, in issuing bonds exempt from taxation and excluding some citizens from the franchise.

The Slaughter House cases, 16 Wall, 36, were referred to as another instance, where the Supreme Court of the United States held that persons and property can be subjected to all kinds of restraint and burdens in order to secure the general comfort. Justice Cox then argues that the legislation in question authorized the Postmaster-General to refuse to deliver registered letters to parties whom he found to be operating lottery and fraudulent schemes, in the interest of public morals, and because it is almost if not quite impossible otherwise to prevent this public convenience from being made an instrument of corruption and adds that "if it be shown * * * that the rule of equality can be departed from on any ground, it is impossible to deny that it may be, when this is deemed necessary by Congress, to prevent a great evil and to prevent what is designed for a blessing from being converted into a *The application of the principle of equality to this case would be that Congress has no right to provide these special mail facilities for the innocent without, at the

curse.

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same time, conceding them to notorious and professional wrongdoers, to whom they would afford the most powerful agency for wrong doing and that the latter must have the same use of the federal agency as others, until accident shall betray their abuse of it and this shall be followed by judicial conviction. We can not believe that the Government is bound to such an inflexible rule of equality as will involve these results. The right of every citizen to the benefit of the discretionary legislation of Congress must be subject to the necessity of public health, morals, order and the general welfare and the efficient execution of the powers expressly conferred by the Constitution. It was also contended by Dauphin, that to deny a citizen the benefits of any Act of Congress, especially on the ground that he is engaged in an unlawful occupation, is punishment, and that to authorize the Postmaster-General to execute the provisions of the law in this respect is to authorize the infliction of this punishment without due process of law in defiance of the guarantees of the Constitution, and is equivalent to investing the Postmaster-General with judicial power, which can only be lodged in the courts. The court, in answer to this contention, discusses the difference between fundamental rights and privileges conferred by legislation. The right to life, liberty and property is held to be fundamental, inalienable and antedating all constitutions and this right is what the Constitution protects. Congress might repeal the whole law relating to the registration of letters or might authorize the Postmaster-General to suspend or abolish the system when he should think the privilege was abused by disseminating immoral matter, and, in that case, it could not be claimed that the people generally were deprived of any property in a privilege that might, at any time, be withdrawn by Congress. "If the repeal of this law could not be held to deprive the people generally of their property without due process of law then the withdrawal from complainant of the right to receive registered letters, even supposing him to have been previously entitled to it, under the law, can not be said to have

such effect as to him, unless such effect be found in the mere fact of discrimination against him. Whether this be so will depend upon the question already discussed, viz.: Whether the complainant has a constitutional right to the privilege of the registry system simply because others have it. For if he has not, as we think has been sufficiently shown, then the withdrawal of the privilege from him while others still retain it dots not deprive him of any property in the constitutional sense of the term."

The distinction between absolute rights and mere legislative privileges is brought out in the franchise cases, Anderson vs. Baker, 23 Md., 531 and Blair vs. Ridgely, 41 Mo. 63. In these and other cases it is held that the right to vote is not protected by the Constitution of the U. S. but it is exclusively within the control of the State and may be enlarged or contracted at the pleasure of the State.

Justice Cox says: "The terms 'due process of law,' as employed in the Constitution, apply only to the fundamental rights referred to in that instrument and are inapplicable to mere privileges of legislative creation. As to these the law of England furnishes no precedent, but the law of their creation, determines the terms and conditions of their enjoyment and by what process they shall terminate.

The objection that the statute under consideration attempts to clothe the Postmaster-General with judicial power is mainly founded upon the assumption, which we consider erroneous, that his action in pursuance of it is virtually a trial and penal judgment against the party affected by it. But if it be not so, as has been shown, there is no ground for the objection. There is probably not an important office in the Executive Departments in which it is not necessary to exercise judgment in such a manner as to affect private interests in carrying the laws into effect, and yet that this is the exercise of judicial power of the United States, which belongs only to its courts, has not been pretended."

The court further held, in that case, that the issuance of the order did not inflict punishment on Dauphin, but was pre

vention, resorted to, because of the difficulty or impossibility of detection. Its object is plainly not to punish, but to preserve the mails from misuse. Dauphin vs. Key, 4 McArthur, 203.

Sec. 286. The case of the New Orleans National Bank vs. Merchant, 18 Fed. Rep. 841, was decided by Judge Pardee in the Circuit Court, Eastern District of Louisiana in January, 1884. Plaintiff applied for an injunction to restrain defendant from refusing to deliver to it registered letters addressed to it and to pay money orders in its favor. The defendant set up as a defense an order of the Postmaster-General directing him to deliver to plaintiff "no registered letters and redeem no money orders payable to it," but in that order there was no finding that plaintiff was then conducting through the mails any lottery scheme or scheme to defraud. The Judge granted the injunction and after referring to the decision in Dauphin vs. Key, supra, decided "that the foregoing statute giving authority to the Postmaster-General to determine upon evidence satisfactory to him whether any person engaged in one of the schemes or enterprises described therein and thereupon to forbid the use of the registered letter and money order systems is constitutional. * * * To this I agree and I refer to the learned opinion rendered in that case by Justice Cox, as the organ of the court, as an answer to all the arguments addressed to me on this hearing on the constitutionality of said laws. Every point raised here on that question seems to have been passed on by Justice Cox."

The Judge then proceeded to the discussion of the question whether the court can in any case grant relief against the action of the postal authorites, and he comes to the conclusion that it can. He found that the order issued by the PostmasterGeneral, in the case, did not, in essential particulars, comply with the law and for that reason it constituted no justification to the defendant to refuse to deliver registered letters and pay money orders to plaintiff. He relied mainly on the opinion of the Supreme Court of the United States in Teal vs. Fetter, 12 How. 284.