Opinion
No. 63414.
March 31, 1937.
Horace J. Donnelly, Jr., of Washington, D.C., for plaintiff.
Leslie C. Garnett, U.S. Atty., for District of Columbia, Howard Boyd, Asst. U.S. Atty., and William C. O'Brien, Asst. Atty., Post Office Department, all of Washington, D.C., for defendant.
This is a bill in equity to enjoin the Postmaster General of the United States from enforcing a so-called "fraud order" issued pursuant to 39 U.S.C.A. §§ 259 and 732 (sections 3929 and 4041, Revised Statutes, as amended), directing the postmaster at New York, N.Y., to stamp fraudulent and return to senders all mail addressed to the plaintiff's concerns, Paris Import Company, Bell Import Company, and Sel-More Company, respectively, their officers and agents as such, and further directing postmasters throughout the United States to refuse to certify or to pay any money orders payable to the order of said concerns. After a hearing was had on plaintiff's application for a preliminary injunction, an order was entered by the court restraining and enjoining the defendant, pending a final hearing and determination of this cause or until the further order of the court, from the enforcement of said fraud order and from interfering with the right of plaintiff to receive mail addressed to his concerns or to the use of the money order facilities and service of the Post Office Department.
The matter now comes before the court on plaintiff's motion for final hearing on bill and answer, and after hearing thereon the court finds the following facts:
Findings of Facts.
Plaintiff is engaged in selling, by mail, certain harmless cartoon joke booklets, miniature photographs and pictures, jokes, dual-meaning letters, and a book entitled "Secrets of Love Making." The following are the advertisements used:
"ART OF LOVE "Illustrated Booklet
"Also Peaches and Browning, Dumb Dora, Maggie Jiggs, Boss and Bubbles, Andy Gump Min, Adam Eve, Kip Alice, Night in Paris, Toots Casper, A Coachman's Daughter, and over 100 more jokes of similar type; also 30 actual photos, Montmartre Type, of men and women in different affectionate poses, also including women models alone in various poses, etc., etc. In addition to this we send you over 70 snappy miniature pictures on a page, enlargements can be had of any miniature you select at bargain prices.
"These are all GLOSSY FINISHED, ACTUAL PHOTOGRAPHS from IMPORTED NEGATIVES. Also some short stories and 12 interesting letters. No obscenity. You will receive ALL THE ABOVE. Send cash, money order or stamps. Immediate shipment.
"SPECIAL — ALL FOR $1.00 "PARIS IMPORT COMPANY
"4166 Park Avenue. Dept. A. New York City.
"CARTOON BOOKLETS Genuine Photos
"Special — Four (4) Sample Illustrated CARTOON BOOKLETS (vest pocket size), also four (4) Combination Picture Sets (unretouched) in different positions standing, sitting, lying, etc. These 4 Combination sets comprise in all over 32 different poses, and are ACTUAL PHOTOS with glossy finish. All this included with sample set of other goods, for $1.00 Bill. Immediate shipment, and sent sealed.
"BELL IMPORT CO., Dept. A.
"P.O. Box No. 14 Fordham Station, New York City.
"SECRETS OF LOVE MAKING
"Fully explained. Various methods How to Make Love, the Mystery of Love Making in detail. This book measures 5 x 7 1/2 inches and contains 95 pages of FLUENT, DETAILED and INTRIGUING reading.
"Get your copy today. Sent prepaid only on receipt of $1.00, our SPECIAL Price. You may send cash, money order or stamps. No C.O.D. orders filled on this special.
"SEL-MORE CO.
"Dept. S. 4160 Park Avenue New York City"
Such advertisements of plaintiff appear in various publications of general circulation, including the following which have second-class mailing privileges: "Blade Ledger," Illustrated Mechanics," "Psychology," "Star Detective Magazine," "Western Novel and Short Stories," "Western Short Stories," "Quick Trigger Western Novel," "Complete Western Book Magazine," "Best Love Magazine," "True Crime Magazine," "All Star Adventure Magazine," "Ka-Zar, Adventure of Ka-Zar the Great," "Western Fiction Monthly," "Western Novel and Short Stories," "Best Western Magazine," and "Best Sports Magazine."
The following publications, in which plaintiff's advertisements appear, may be described as "sex type" which do not have such mail privilege: "Snappy," "La Parree," "Gay Parissienne," "Bedtime Stories," "Pep Stories," "Spicy Stories," "Spicy," and "Tattle Tales." In such magazines there appear a number of advertisements inserted by persons other than the plaintiff, dealing with sex matters, of which the following are typical examples:
"WHY DOPE YOURSELF WITH DRUGS?
"MEN-WOMEN Gain New Sex Power The Natural Way with Vitamin `E'
"Science has definitely identified the food vitamin that gives Sex Power. Experiments have positively proved that lack of this vitamin — Vitamin E — causes sexual weakness and impotence in men, sexual frigidity and sterility in women. Your own doctor will confirm this. Our VITAMIN E OIL is a concentrated extract from the embryo of wheat — the richest known source of Vitamin E. It is a pure food product. Amazing benefits have followed its use. It overcomes Vitamin E deficiency. It can only do good — cannot harm no matter how much you take. Build yourself up this natural way. A month's supply $1.00 ($1.15 C.O.D.)
"CHICAGO LABORATORY PRODUCTS
"P.O. Box BE 3690 Merchandise Mart Chicago"
"MEN — HYGIENIC GOODS
"Disease preventatives. Guaranteed 5 yrs. 4 doz. $1.00; 7 doz. $1.70; 12 doz. for $2.50. Wrapped plain marked `Personal.' Catalog free with order.
"EDWARD PRODUCTS CO.
"Dept. B. 3308 Armitage Ave., Chicago, Ill."
"SPANISH LOVE PERFUME
"Its strange and rare fragrance inspires love and romance. Used by both men and women. Low offer. Large 1-2 oz. bottle only 50¢. (Catalog of unusual items, pictures, jokes, cartoons, remedies, etc., 10¢)
"CROWN IMPORT CO., 1261 Broadway, N.Y.C." "AMAZINE DEE-LAY FOR MEN "GIVES YOU `STAYING' POWER — PROLONGS THRILLS!
"Don't let premature climax rob you of thrills or cause you embarrassment! A new, remarkable discovery for external use called DEE-LAY gives you the `STAYING' POWER you want and need. Prevents disappointment. Gives you perfect retarding control as desired by all REAL HE-MEN; is absolutely harmless. Undetectable! Users everywhere praise DEE-LAY. Full size (50 times) $1.00 postpaid. ($1.15 C.O.D.) Satisfaction guaranteed or money back. Order yours today!
"POSITIVE PRODUCTS COMPANY
"6609 Cottage Grove Ave., Dept. 61-A, Chicago, Ill."
"SEXUAL POWER "DOUBLED IN ONE HOUR WITH PROSTORIES
"— The Sex-Stimulating Suppositories —
"AN AMAZING NEW MEDICAL DISCOVERY
"These Suppositories strengthen and stimulate the PROSTATE GLAND (which doctors consider the base of all men's sex power) by medicating the gland DIRECT — a natural and logical method. Ask your own doctor. * * * No drugs are taken into the system. Prostories contain no narcotics, yet are so effective that they need to be used only an hour before the stimulation is wanted.
"Originally developed to relieve the pain and sexual weakness of PROSTATE SUFFERERS, repeated tests have proved that PROSTORIES bring greatly increased sexual power to any man — and in just one hour. Users report their power of retarding more than doubled.
"There is nothing else on the market like Prostories. Don't confuse them with the harmful temporary drugs that must be taken constantly to get results.
"Trial Box of 10 — $1.00; 24 for $2.00 "Sold on Absolute MONEY-BACK GUARANTEE
"All orders mailed in plain wrapper, with complete directions.
"NATIONAL SCIENTIFIC PRODUCTS CO.
"644 Diversy Boulevard Dept. E-1, Chicago, Ill."
"SEX SECRETS
"127 pages of vital, most intimate information that you must know to get the most out of love — life — marriage.
"Plainly told in our 2 amazing booklets `Man's Sexual Life' and `Womanhood.' With confidential list for adults only. All for 25¢
"NATIONAL BOOKSELLERS, Dept. 2, Owosso, Mich."
There is nothing in the record to indicate that any knowledge regarding any of these advertisers, or any advance knowledge prior to publication of the other contents of such magazines, was had by plaintiff. The advertisements of plaintiff Paris Import Company appearing in the last-named publications contained the words, "No obscenity."
There are also included in such publications, advertisements of other advertisers offering for sale radio sets, musical instruction, novelties, books, typewriters, etc.
The material furnished by the plaintiff to persons ordering same in answer to the advertisements of Paris Import Company, Bell Import Company, and Sel-More Company, appears to be in strict conformity with the advertised description and representations made in the advertising.
The Solicitor of the Post Office Department made a finding of fact and recommendation to the Postmaster General that a fraud order be issued. The Postmaster General accepted such finding and recommendation of the Solicitor and issued a fraud order against plaintiff's concerns. The Solicitor found in substance that, by the wording of the advertisements and by the type of magazine in which they circulate, plaintiff intends that persons reading such advertisements will be led to believe that they will, in return for their money, receive obscene, lewd, and lascivious cartoons, books, and photographs. Defendant admits that none of the material furnished by plaintiff contains lewd, obscene, and lascivious matter.
The transcript of the hearing before Thomas J. Murray, an assistant attorney of the Post Office Department, was made part of the record here by appropriate reference and is before the court. It discloses that the only testimony offered at the hearing was that of two Post Office inspectors, one of whom testified among other things that he bought a magazine containing an advertisement of plaintiff, after listening to the "spiel" of a salesman in a local burlesque theater, part of which was reported by the Post Office inspector as follows:
"— real spicy and right up to the minute — a book we are not going to sell — We are going to pass it out free — the November issue of Gay Parissienne — the most outstanding of this type magazine — stories that stop the sale of the book. — `One Mad Night.' Now there is a story that leaves nothing to the imagination. — You will say, `How can they place those words in print.' — As good as any you find in any written Burlesk book. — I just want to tell you the book is going free and call your attention to that one story `One Mad Night' — You will notice in the back of this book a lot of advertisements — they will send you Tillie Mac, Maggie Jiggs — On the last page of this issue which you will receive now — `Secrets of Love.' — We have the very same thing you would send away and pay a dollar for. — Here is the `Secrets of Love' for men only. Here are the 50 — things you find in the inside. — It contains over 50 of them and here are — `Only a Girl,' `A Night in a Moorish Harem' — `The Bride's Confession' tells everything that occurred on the first night — She minces no words. `Peeping Tom' has to deal with the adventures of a young man peeking into a girls' seminary — tells you everything too. No novelty for — a dollar. We are going to pass these things out with the book. — A real laugh, a real kick — Here is what we are going to sell you to get these things into your hands. — There are three Burlesk theatres on 42nd Street — For over a week they have been selling a French novelty — We have the same thing here. They are charging 50 cents at night for it. — You operate it with your finger — Not at half a dollar but 25 cents, the same price we charge for — With every one you buy at that price we are going to give you `Secrets of Love' and then along with it the first issue of Gay Parissienne in three years that has not reached the newsstands. —"
The magazine salesman's statements as to the character and nature of the contents of the magazine and what would be sent to persons answering the advertising therein, are not binding on the plaintiff; there being no showing that plaintiff had any knowledge of, or connection with, such representations.
No complaints of any kind from purchasers of the merchandise as to the character thereof or otherwise, or from any one dealing with plaintiff, are found in the record.
There was shown to the court, by defendant's counsel, certain obscene and immoral cartoon booklets bearing the titles "Tillie and Mac," "Toots and Casper," "Peaches," "Dumb Dora," "Tillie the Toiler," and other similar titles, together with a book containing sex histories of men and women, entitled "The Art of Love," by Dr. W.F. Robie. Such material is not in evidence but was taken from the Post Office Department files of obscene matter and shown to Assistant Attorney Murray at the Post Office Department hearing. There is nothing in the record to indicate the source of such material before it came into possession of the Post Office Department, or that same is generally known and available to the public; the post office inspector testifying generally that such books "are sold and circulated." It is conceded that plaintiff does not deal in this type of objectionable matter.
There is in evidence a number of comic cartoon books also having titles such as "Tillie the Toiler," "Toots and Casper," etc., which are available to the public at 10-cent and other stores. Comic cartoon strips currently appearing in newspapers and having wide popular appeal likewise have similar titles.
Conclusions of Law.
The findings of the Solicitor that persons who read magazines of the type in which plaintiff advertises are of a class that desires to obtain obscene, lewd, and lascivious matter, and that members of the public are led to believe by the advertising of plaintiff that plaintiff furnishes such matter, are mere opinions unsupported by necessary evidence and not susceptible of proof.
The statutes in question are only intended to cover cases of actual fraud in fact, and mere matters of opinion on which witnesses might differ in their conclusions will not substantiate a fraud order. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90.
Opinions of laymen are not considered by the court as substantive evidence as are opinions of experts founded upon known scientific facts. Elliot Works, Inc., v. Frisk (D.C.) 58 F.2d 820.
In Peoples United States Bank v. Gilson (C.C.A.) 161 F. 286, 289, Judge Sanborn digested the opinions of the United States Supreme Court on this question and analyzed the findings of that court in sustaining an injunction against the enforcement of a fraud order in the case of American School of Magnetic Healing v. McAnnulty, supra, a leading case on the interpretation of sections 3929 and 4041 of the Revised Statutes, as amended (the fraud order statutes), stating as follows: "The Supreme Court held (1) that, where the beneficial effect of the scheme or device in question * * * is a matter of opinion not susceptible of proof as an ordinary fact, the Postmaster General has no lawful jurisdiction or authority to issue a fraud order; * * * (2) that, where the Postmaster General is induced to issue a fraud order by an error of law, his action is reviewable, and the execution of his order may be enjoined by the courts; * * * (3) that if there is no evidence before the Postmaster General of the violation of the federal law, or if the admitted, conceded, or established facts before him show no such violation, the Postmaster General's determination that the evidence of such violation is satisfactory to him in his issue of a fraud order thereon is a pure mistake of law remediable by the courts; * * * (4) that, where the Postmaster General issues a fraud order without jurisdiction or by reason of an error of law, and thereby stops the delivery of letters which contain valuable inclosures, he violates the property rights of the person or company whose letters are thus withheld."
There must be actual and substantial evidence of fraud before the Postmaster General to warrant the issuance of a fraud order by him, and where his action is palpably wrong or if he exceeds his authority he will be restrained by the court. Leach v. Carlisle, 258 U.S. 138, 42 S.Ct. 227, 66 L.Ed. 511; Aycock v. O'Brien (C.C.A.) 28 F.2d 817; Elliot Works v. Frisk, supra.
In Hurley v. Dolan, 297 F. 825, the Circuit Court of Appeals (First Circuit) affirmed the decree of the District Court granting a permanent injunction restraining and enjoining the Postmaster General from enforcement of a fraud order against the complainant. The District Court had found that no false statement or representation was made by the complainant in her advertising; that the testimonials appeared to be genuine; that the Dolan circular was designed to sell lucky stones, and did so without falsehood or misrepresentation; that there is nothing immoral in the belief that gems and amulets affect the wearer's fortunes; that if the complainant wished to sell lucky stones for what they are without lying about them, she was not acting fraudulently in so doing.
The authority of the Postmaster General is neither unbounded, arbitrary, nor discretionary. It is limited, and its exercise is governed by the acts of Congress which confer it and by the laws of the land, and his violation or disregard of either is remediable in the courts. If he is induced to issue a fraud order in a case beyond his jurisdiction, or by reason of an error of law in a case within his jurisdiction, and its issue, in the absence of any evidence or law to sustain it, or upon facts found, conceded or established without dispute which do not sustain it, is an error of law which renders its issue palpably wrong. Peoples United States Bank v. Gilson, supra.
Standing alone, unsupported by substantial evidence, the opinions and beliefs of the Postmaster General and his subordinates as to the character and nature of a business or the intent of the operator are not sufficient to satisfy the requirements of the statutes so as to give the Postmaster General jurisdiction over the subject-matter. American School of Magnetic Healing v. McAnnulty, supra; Leach v. Carlisle (C.C.A.) 267 F. 61, affirmed in 258 U.S. 138, 42 S.Ct. 227, 66 L.Ed. 511; Hurley v. Dolan, supra; Elliot Works v. Frisk, supra.
The record of the hearing before the Solicitor of the Post Office Department contains no evidence within the meaning of the fraud order statutes cited which sustains the recommendation of the Solicitor, and in the absence of such evidence the Postmaster General was not justified in issuing the fraud order. His action in that respect was improper, a mistake of law, and a wrongful and arbitrary invasion of the property rights of the plaintiff, and comes within the rule laid down in American School of Magnetic Healing v. McAnnulty and followed in other cases cited herein.
The enforcement of the fraud order against plaintiff prevents him from receiving any mail addressed to his three concerns. Such enforcement has the effect of cutting off all relationships between plaintiff and those attempting to communicate with his concerns by mail, whether in connection with plaintiff's business or otherwise. Plaintiff would therefore suffer irreparable and certain injury unless granted the relief prayed for. It is well settled that relief by injunction is the proper remedy in such cases.
The plaintiff is entitled to a permanent injunction restraining and enjoining the Postmaster General from interfering with plaintiff's use of the mails and the money order facilities of the Post Office Department.
The prayer of plaintiff's bill for a permanent injunction is therefore granted.