We feel, however, that there are safeguards against such. If the Postmaster General deals with an individual case without classifying it in a group, his act becomes capricious and arbitrary, and is subject to a review by the courts. Moreover, he is no doubt subject to the will of the President. Finally, if his course becomes too general, Congress can re-write the Act that he has failed to interpret in keeping with prevailing standards and conceptions if he has so misinterpreted it. There is a very decided difference between grouping and classifying and that of censoring. Censoring deals more with the specific article, the deleting of objectionable portions. Classifying means grouping. This was the view of Judge White, Judge Clark and others in the cases above referred to.
"The Radio Commission's refusal to renew the broadcasting license on the ground that public interest, convenience, or necessity would not be served, held not to constitute 'censorship' of the radio station * * * because there was no attempt on the part of Radio Commission to subject any part of the applicant's broadcasting matter to scrutiny prior to its release." KFKB Broadcasting Ass'n v. Federal Radio Comm., 60 App.D.C. 79, 47 F.2d 670.
The classification of things, however, is a different process.
"The word has been defined as meaning a characterization through the selection of some quality or feature; a grouping of classes, or a putting together of like subjects or facts under a common designation." 14 C.J.S., Classification, p. 1194.
"Word 'classification,' as used in school budget statute, means putting together of like subjects or facts under common designation." 7 Words and Phrases, Perm.Ed., page 431.
"'Classification' is in law grouping of things in speculation or practice because they agree with one another in certain particulars and differ from other things in those same particulars." 7 Words and Phrases, Perm.Ed., page 432.
Appeals to the court do not lie from orders of the President or his executive officers. A court will not review or overturn an act of an executive officer charged with the performing of a given duty unless the act is arbitrary, capricious or unlawful. Is the order of the Postmaster General unlawful, capricious or arbitrary? There is a very striking analogy between his attitude in making this classification and the act of the draft board in classifying a soldier for military duty. The draft board passes upon any claim of exemption that may be made by the draftee. The soldier may appeal to a board of appeals constituted for that purpose. If he is dissatisfied with that ruling, he may not appeal to the court. The court will review the classification, however, only when the draft board has acted arbitrarily or capriciously in disregard of law, and this is brought to the court's attention not in the way of appeal, but ordinarily by a writ of habeas corpus. The Supreme Court has lately held in the Jehovah Witnesses case, opinion by Justice Black, entered on January 3, 1944, in the case of Nick Falbo, Petitioner, v. United States, 320 U.S. 549, 64 S. Ct. 346, that the court was without jurisdiction to set aside the ruling and finding of the draft board on matters of classification. In the Victor Burger case, styled United States ex rel. Milwaukee Social Democratic Publishing Company v. Burleson, 255 U.S. 407, 41 S. Ct. 352, 353, 65 L. Ed. 704, the court held:
"The extremely low rate charged for second-class mail -- to carry it, was said, in argument, to cost seven times the revenue which it yields -- is justified as a part of 'the historic policy of encouraging by low postal rates the dissemination of current intelligence.' It is a frank extension of special favors to publishers because of the special contribution to the public welfare which Congress believes is derived from the newspaper and other periodical press. [Lewis Pub. Co. v. Morgan], 229 U.S. 301, 304, 33 S. Ct. 867, 57 L. Ed. 1190.
"That the power to suspend or revoke such second-class privilege was a necessary incident to the power to grant it has long been recognized by statute and by many decisions of this court.
"Where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they have the power, and will occasionally exercise the right of so doing.
"As to what is second class mail matter, Houghton v. Payne, [194 U.S.] page 88, [ 24 S. Ct. 590, 48 L. Ed. 888], followed. " Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S. Ct. 595, 48 L. Ed. 894.
After a full hearing in which the Postmaster General shows due consideration of the subject and in connection with the consideration thereof, he withheld the enforcement of the putting of his order in operation until the court had passed upon his ruling showing that his attitude towards the plaintiff was not in any sense arbitrary. Having thus in good faith performed the duty of his office as he saw it, we find no logical ground to enjoin his action, or stated otherwise, no valid, legal basis can be had for the substitution of the court's views for those of the executive officer. His findings like those of the Master or the Jury must be upheld by the court. The injunction will, therefore, be denied.
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