The opinion of the court was delivered by: DAVIDSON
The Postmaster General of the United States revoked the second-class mailing permit of the plaintiff. It seeks to enjoin the enforcement of the order so made. The question is, was the action of the Postmaster General authorized by law? By order of the highest court a rule was long ago announced: "The conclusion of a head of an executive department upon a matter of fact within his jurisdiction will not be disturbed by the courts unless clearly wrong." Burleson case, United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704. A lengthy hearing was given the plaintiff by the Postmaster General and his chosen aides, the record of which is before us, embracing some 1,865 printed pages. At the conclusion of such hearing, the Postmaster General stated the ground for the action now complained of. This statement was in part as follows:
"This is a proceeding under the act of March 3, 1901 relating to the second-class mailing privileges accorded to the publication 'Esquire' and its publisher. * * *
"In view of this voluminous record, at the onset it may be well to clarify and state just what is the issue in this proceeding. This is a proceeding involving the use of the second-class mailing privileges. Consequently, there is not involved the question of nonmailability as first, third or fourth-class mail matter nor of the right of freedom of speech, or of the freedom of the press. * * *
"Does the publication fail to comply with the Fourth condition of the Act of March 3, 1879, section 14 (20 Stat. 359; 39 U.S.C. 226 [ 39 U.S.C.A. § 226]) and thus not being originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry, is not entitled to second-class mailing privileges. * * *
"This is essentially a judicial matter of deep significance, and the Postmaster General should not be hesitant in exposing these conditions to the critical public eye. Nor should he be reluctant to determine the matter in such a way that all phases of it may be fully considered and decided by a court of competent jurisdiction where every right and interest of the publication, the government, and the public may be fully protected. * * *
"Writings and pictures may be indecent, vulgar, and risque and still not be obscene in a technical sense. Such writings and pictures may be in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good. When such writings and pictures occur in isolated instances their dangerous tendencies and malignant qualities may be considered of lesser importance.
"When, however, they become a dominate and systematic feature they most certainly cannot be said to be for the public good, and a publication which uses them in that manner is not making the 'special contribution to the public welfare' which Congress intended by the Fourth condition. * * *
"The editor of this publication admits that from its origin 'our humor and our articles and our fiction all stressed a man alone angle -- you might call it a stag party type of treatment', (3) and testified 'we called it the smoking room type of humor'. (4) He stated that as part of its editorial policy it runs 'cartoons that do feature sex'. (5) Its featured pictures are stated to be 'frankly published for the entertainment they afford'. * * *
"I cannot assume that Congress ever intended to endow this publication with an indirect subsidy and permit it to receive at the hands of the government a preference is postal charges of approximately $500,000 per annum. (11) * * *"
The Postmaster General is by law charged with the duty of dividing his mail matter into four classes. The law as it now is was written many years ago.
"'Sec. 7. That mailable matter shall be divided into four classes:
"'Second, Periodical publications;
"'Third, Miscellaneous printed ...