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September 14, 1967

Lawrence F. O'BRIEN, Postmaster General of the United States, Defendant

The opinion of the court was delivered by: HOLTZOFF

 This is an action to enjoin the Postmaster General of the United States from issuing a commemorative Christmas postage stamp on the ground that the stamp portrays a painting of the Madonna and, therefore, has a religious significance. There are three plaintiffs: one is a corporation named "Protestants and Other Americans United for Separation of Church and State"; and the other two are private individuals. The plaintiffs' theory is that Government funds are being unconstitutionally expended in the issuance and sale of the postage stamp, and that they, the plaintiffs, are entitled to an injunction against the use of Government funds for purposes "of adoration and worship contrary to the religious beliefs of the plaintiffs". The plaintiffs do not show any injury to themselves separate and apart from other members of the public, or any violation of their individual legal rights. The defendant has moved to dismiss the action on the ground that the plaintiffs have no standing to sue. The plaintiffs have moved for a preliminary injunction. The two motions have been heard together and are now before the Court for decision.

 The facts are not in dispute. The Post Office Department of the United States is engraving and printing, and proposes to issue during the Christmas season a five-cent commemorative Christmas postage stamp reproducing in miniature Hans Memling's famous painting of "Madonna and Child with Angels". The original painting now hangs in the National Gallery of Art in Washington, D.C. It is claimed in behalf of the plaintiffs that this postage stamp has a religious significance; that the likeness of the Madonna is a religious symbol commonly associated with the Roman Catholic Church; and that, therefore, for the Government to issue such a postage stamp violates the First Amendment to the Constitution.

 The Postmaster General is vested with authority by statute to issue postage stamps. The statutory provision is found in 39 U.S.C. ยง 2501 and reads as follows:

"The Postmaster General may issue appropriate stamps in such denomination, form and design, and at such times as he deems necessary, for use in payment of postage or fees for special services."

 There is no provision for judicial review of the administrative discretion of the Postmaster General in selecting designs for postage stamps.

 A dispute over the image on a postage stamp seems hardly of sufficient magnitude to occupy the time and attention of the courts. This matter, standing alone, is within the scope of the maxim "de minimis non curat lex". Unfortunately, however, issues have been raised and presented in which there are lurking potential implications and far-reaching ramifications beyond the confines of this petty controversy. It becomes necessary, therefore, to devote consideration to the questions that confront the court out of all proportion to the insignificance of the minor and captious complaint filed by the plaintiffs.

 It is well settled that an individual may not maintain an action, on the theory that he is a taxpayer, to restrain an expenditure of public money, on the ground that allegedly it is unconstitutional or illegal. This principle was definitively established in the leading case of Frothingham v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. There the plaintiff brought suit to restrain the disbursement of moneys under the so-called "Maternity Act", on the ground that the Act was unconstitutional and that under the guise of taxation the plaintiff's property would, therefore, be taken for the purposes of the statute without due process of law. In reaching the conclusion that a taxpayer may not maintain an action to restrain the payment of moneys on the ground that the expenditure would be unconstitutional or illegal, Mr. Justice Sutherland wrote as follows (p. 487, 43 S. Ct. p. 601):

"The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for non-federal purposes have been enacted and carried into effect."

 On the authority of the Frothingham case, the Court of Appeals for this Circuit, in Elliott v. White, 57 App.D.C. 389, 23 F.2d 997, affirmed the dismissal of a bill in equity for an injunction to prohibit the Treasurer of the United States from disbursing Government funds appropriated for salaries of the chaplains of the Senate and House of Representatives and of the Army and Navy of the United States. The plaintiff, claiming that the employment of chaplains constituted a promotion of religion in violation of the First Amendment, sued as a citizen. The court held that the interest of a citizen in such an action is no more direct than that of a taxpayer, and ruled that the plaintiff had no standing to sue. In so doing, Mr. Justice Robb made the following observations ( P. 390, 23 F.2d p. 998):

"Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional, and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess."

 The doctrine that a member of the public, whether suing as a taxpayer or as a citizen, whose individual legal rights are not affected separately and apart from the interests of the entire public, may not maintain an action to restrain the expenditure of public funds claimed to be unconstitutional or illegal, has been frequently applied in various situations. Leading decisions, following the Frothingham case, are Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L. Ed. 374 and Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S. Ct. 869, 84 L. Ed. 1108. In the last cited case, Mr. Justice Black stated (p. 125, 60 S. Ct. p. 876) that plaintiffs "to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public's interest in the administration of the law." He explained the theory on which this rule is based as follows (p. 132, 60 S. Ct. p. 879):

"Our decision that the complaining companies lack standing to sue does not rest upon a mere formality. We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the ...

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