The opinion of the court was delivered by: LETTS
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:
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:
"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
"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.
"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 ...