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 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 enclosures, 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.
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