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§ 167. “Postal.”

Postal, telegraphic and telephonic departments will not be transferred to the Federal Government at the establishment of the Commonwealth, but on a subsequent date, fixed and proclaimed by the Governor-General, acting on the advice of the Federal Administration. When these important departments are taken over by the Commonwealth, all the property of every kind of each State, used exclusively in connection with them, will become vested in the Commonwealth. The Commonwealth will also be able to acquire any property of each State used, but not exclusively used, in connection with those departments. The Commonwealth will compensate each State for the value of property passing to it under the Constitution, as well as for the value of property partially used in connection with transferred departments which the Federal Government may, in the exercise of its discretion, decide to acquire. The procedure for determining the amount of compensation is detailed in sec. 85. In taking over these valuable assets, the Commonwealth is bound to assume the obligations of each State in connection therewith, current at the date of transfer. (Sec. 85—iv.)

Under the power to establish post-offices and post-roads, the mail operations of the United States are regulated. Postmasters are appointed and their duties prescribed; mail contracts are made and carriers of mails regulated; provisions are made for the punishment of depredations on the mail. These powers are incident to the main power. (Sturtevants v. City of Alton, 3 McLean, 393. Baker, Annot. Const. p. 47.)

The powers conferred are not confined to the instrumentalities in use when the Constitution was adopted. Congress, in its exercise, should keep pace with the progress of the country and adapt the regulations to the development of time and circumstances. The powers were conferred for the government of business for all time and under all circumstances. To this end Congress may establish telegraph lines, and in this, is not limited in its operation to such military and post-roads as are on the public domain. (Pensacola Tel. Co. v. Western Union Tel. Co. 96 U.S. 1, id. p. 47.)

The postal power of the United States embraces the regulation of the entire postal system of the country, and enables Congress to designate what shall be carried in the mail and what excluded. A law excluding circulars of lotteries, &c., is a valid exercise of the power. But when any matter is excluded from the mails, Congress cannot forbid its transportation by other means, so as to interfere with the freedom of the press. (Ex parte Jackson, 96 U.S. 727, id. p. 47.)

“We may also class the power of Congress over the postal service with, but not under, the power to regulate commerce with foreign nations and among commonwealths. I say with, but not under, because this power extends to postal communication within a single commonwealth, as well as among the commonwealths and with foreign States, and because the Congress has interpreted its power in this respect as authorizing it not simply to regulate the postal business, but to authorize the administration to do the postal business, and to do it exclusively; i.e., Congress has claimed and exercised the power of establishing a governmental monopoly of the postal business overall governmental postal routes, and, since Congress may declare every route a governmental postal route, the monopoly is complete at the option of the Congress. The Court has ratified the interpretation which Congress has placed upon its power in this respect.” (Burgess Political Sc. II. p. 139–40.)

“Again, Congress must not so exaggerate the conception of mail matter as to claim the express business as a governmental monopoly. It cannot prohibit from carriage in other ways than through the United States mail anything which was not regarded as mail matter at the time of the formation of the constitution.” (Id. p. 140.)

“Whether, under the power to establish post offices and post roads, the legislature of the United States may make the telegraph a governmental monopoly cannot be regarded as entirely settled, although the Congressional Act of 1866, and the decision of the Supreme Court in the case of The Pensacola Telegraph Company v. The Western Union Telegraph Company, seem to indicate that both the Congress and the Court interpret the constitution as vesting this power in Congress.” (Id. 140–1.)




  ― 561 ―

51. (vi.) The naval and military defence168 of the Commonwealth and of the several States, and the control of the forces to execute and maintain169 the laws of the Commonwealth:

HISTORICAL NOTE.—The war powers of the United States (Art. I. sec. viii. sub-ss. 11–16) are those of a sovereign State, and include the power to declare war. The corresponding provision of the British North America Act is “Militia, Military and Naval Service and Defence” (sec. 91, sub-s. 7).

“Defence” was specified as a federal subject in the Bill attached to Wentworth's Memorial in 1857 (p. 94, supra). By the Federal Council of Australasia Act, 1885, the subject of “general defences” might be referred to the Federal Council. The opportunity for Sir Henry Parkes' action which led to the Sydney Convention of 1891 was Major-General Edwards' report on the necessity for federal defence. In the Commonwealth Bill of 1891 there were two sub-clauses dealing with the matter:—“(6) The military and naval defence of the Commonwealth and the several States, and the calling out of the forces to execute and maintain the laws of the Commonwealth, or of any State or part of the Commonwealth; (7) Munitions of war.” The latter sub-section was added in Committee, at Mr. Fitzgerald's suggestion. (Conv. Deb., Syd., 1891, pp. 683–4.)

At the Adelaide session, 1897, the sub-clause was worded:—“The military and naval defence of the Commonwealth and the several States, and the calling out of the forces to execute and maintain the laws of the Commonwealth.” A verbal transposition was made at the Sydney session; and at the Melbourne session, after the fourth report, “control” was substituted for “calling out.”

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