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 NOTES OF RECENT CASES

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NOTES OF THE MOST IMPORTANT RECENT CASES COMPILED BY THE EDITORS OF THE NATIONAL REPORTER SYSTEM AND ANNOTATED BY SPECIALISTS IN THE SEVERAL SUBJECTS •(Copies of the pamphlet Reporters containing full reports of any of these decisions may be secured from the West Publishing Company, St. Paul, Minnesota, at 35 cents each. In ordering, the title of the desired case should be given as well as the citation of volume and page of the Reporter in which it is printed.)

ADMINISTRATIVE LAW. (Post Office — Fraud Order.) U. S. C. C. for E. D. of Mo. — An •exceedingly interesting case relating to the right -and authority of the officials of the Post Office Department to deny the use of the mails when, in their judgment, the statutes relating to such use are being violated, is that of People's United States Bank v. Gilson, 140 Federal Reporter, i. It is there declared that the use of the postal service of the United States is not a matter of right, but of privilege, limited by the statutes declaring certain classes of matter to be non-mailable, and that it is competent for the Post Office Department to determine ex parte that a concern is using the mails in conducting a scheme to defraud and to base an order excluding it from such use upon that ex parte determination. A hearing in such cases is held not to be necessary, so that if one is granted, it is an act of grace, and the concern affected may properly be required to assume the burden of proof and to show affirma tively that its business is legitimate and honest. The statutes regulating the subject (Rev. St. §§ 3929, 4041, as amended by Act Sept. 19, 1890, c. 908, § 3, and Act March 2, 1895, c. 191, § 4, U |S. Comp. St. 1901, pp. 2686, 2749) give the postmaster-general power upon evidence satis factory to him that any person or company is engaged in conducting any scheme to defraud through the mails to direct the postmaster not to deliver registered letters nor pay money orders to such person or company, and are said to author ize the postmaster-general to find that a concern is using the mails in conducting a scheme to defraud and to issue a fraud order on the evidence -of agents and inspectors of the department, and which is more important still, it is held that such a finding cannot be reviewed by the courts in so far as it involves questions of fact, unless a plain error of law is shown. The statutes relating to the Postal Service (Rev. Stat. §3929 and 4041) authorize, the PostmasterGeneral, upon evidence satisfactory to him that any person is conducting any scheme or device for ob

taining money through the mails by false pretenses or promises, to instruct postmasters to return mail matter directed to such person, and to forbid the payment of money orders. The suggestion contained in the opinion that under these statutes there is no right to a hearing, has little significance in view of the statement that the officer acquired jurisdiction over the bank both by notice and appearance, which clearly implies that hearing is a jurisdictional requirement. This latter view is supported not only by the analogous cases of revocation of licenses and removal from office for cause, but also by the practice of the PostOffice Department, which was followed in the pres ent case, and by the express provision of the Act of March 3, 1901, ch. 851, §i. Should a fraud order be issued without any evi dence to support it, the court will restrain its en forcement, but on the trial of the suit for an injunc tion the Post-Office Department may still show the fraudulent character of the scheme. (187 U. S. 94-) The kind and weight of evidence, however, will be conclusively determined by the PostmasterGeneral, and it seems, therefore, that the person opposing the order may be required to rebut the ex parte findings of the department. In the cases reported in 187 U. S. 94 and 136 Fed. 1001 the court was of opinion that the facts as presented by the bill showed that the business was not covered by the terms of the statute and there fore made a prima facie case for judicial interfer ence, while in the present case the scheme described in the bill of complaint appeared to the court as not free from suspicion, and the prayer for an injunction was therefore denied. The doctrine of the Supreme Court regarding judicial control of the action of the postal authori ties will be found laid down in Bates & Guild Co. v. Payne, 194 U. S. 106, to the effect " that where the decision of questions of fact is committed by Con gress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even on mixed questions of law and fact, or of law alone, his action will carry with it a strong