American Mercury v. Kiely

Citation19 F.2d 295
Decision Date02 May 1927
Docket NumberNo. 274.,274.
PartiesAMERICAN MERCURY, Inc., v. KIELY, Postmaster of City of New York, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Emory R. Buckner and Charles H. Tuttle, U. S. Attys., both of New York City (Thomas J. Crawford, Frank Chambers, and Alvin McKinley Sylvester, Asst. U. S. Attys., all of New York City, of counsel), for appellants.

Arthur Garfield Hays, of New York City, for appellee.

Before MANTON, HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

The injunction pendente lite was granted below, restraining and enjoining the postmaster of the city of New York and the Postmaster General, their agents and employés, pending the trial of this cause, from treating the April, 1926, issue of the appellee's magazine, the American Mercury, as nonmailable, and directing them to transmit that issue through the mails. Two articles, one entitled "Hatrack" and another "A New View of Sex," and an advertisement of one Henry F. Marks' Book Shop, containing information as to where certain obscene books specifically mentioned in the advertisement might be purchased and the price thereof, caused the Postmaster General to issue an order holding that this issue was unmailable, pursuant to section 211 of the United States Criminal Code (Comp. St. § 10381) and section 470 of the Postal Laws and Regulations of 1924. This order was issued because it was found that the specified matters tended to corrupt the morals of those into whose hands they might fall, and further that it gave information where, how, from whom, and by what means obscene, lewd, or lascivious and indecent books and publications might be obtained.

The bill alleges that the April number was submitted to the postmaster at Camden, N. J., where the magazine is printed, on March 15, 1926, and no objection was made thereto; that practically the whole of the edition of this issue was mailed and delivered before April 5, 1926. The editor of the magazine submitted an affidavit in support of the application for an injunction, and swore that the April issue was published in March, 1926, and, in accordance with its usual practice, submitted to the postmaster of Camden, N. J., where the magazine is printed, before March 15, 1926, and that no objection was made thereto and practically the whole of the edition was mailed and delivered before April 5, 1926. In a notice sent out to the "friends of the American Mercury," he said, after stating that the issue had been submitted to the postmaster at Camden before March 15, 1926, and the number had been passed, "the whole edition had been mailed and delivered before April 5th — all save a few copies held for stock. The question of the mailability of the number was thus purely academic."

His grievance, as stated in his affidavit, was that, "although practically all of said April number has been distributed, the mere fact that the post office officials have made this order of nonmailability stamps the magazine as an obscene publication, and doubts have arisen as to whether the said order refers only to the April number, or to the magazine in general. The right to transmit later issues of the said magazine through the mails will not restore the confidence to which the complainant is entitled." In an affidavit submitted in opposition, Postmaster Kiely swore that no copy of the April, 1926, issue of the American Mercury had been refused the privileges of the mail, and there was no copy in the post office at New York.

Section 396 of the Revised Statutes (Comp. St. § 582) imposes the duty on the Postmaster General to superintend generally the business of the department and execute all laws relative to the postal service. Postal Laws and Regulations of 1924, section 470, declares as nonmailable matter every obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of the hereinbefore mentioned matters, articles, or things may be obtained or made. It forbids conveying through the mails or delivering from any post office by any letter carrier such prohibited literature, and, for a...

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22 cases
  • Gamlen Chemical Co. v. Gamlen
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 29, 1948
    ...the granting of such an injunction, there must be a showing of irreparable injury during the pending of the action. American Mercury v. Kiely, 2 Cir., 19 F.2d 295; Murray Hill Restaurant v. Thirteen Twenty-One Locust, supra; Warner Bros. Pictures v. Gittone, It must also appear that the inj......
  • Diversified Mortg. Investors v. U.S. Life Ins. Co. of New York
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 30, 1976
    ...determination on the merits. Danielson v. Local 275, Laborers Int'l Union, 479 F.2d 1033, 1037 (2d Cir. 1973); American Mercury v. Kiely, 19 F.2d 295, 297 (2d Cir. 1927). It provides relief which is "interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final......
  • Chaffee v. Johnson, Civ. A. No. 3535.
    • United States
    • U.S. District Court — Southern District of Mississippi
    • May 18, 1964
    ...Gittone, U.S. C.A.3rd, 110 F.2d 292; Murray Hill Restaurant v. Thirteen Twenty One Locust, U.S.C.A.3rd, 98 F.2d 578; American Mercury v. Kiely, U.S.C.A.2d, 19 F. 2d 295; 1 Joyce on Injunctions, Sec. 109A; 1 High on Injunctions, Sec. 10; South Carolina Power Co. v. South Carolina Tax Commiss......
  • Safeway Stores, Inc. v. Safeway Properties, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 14, 1962
    ...no preliminary injunction will issue. E. g., Foundry Service, Inc. v. Beneflux Corp., 206 F.2d 214 (2 Cir., 1953); American Mercury, Inc. v. Kiely, 19 F.2d 295 (2d Cir. 1927). Even if we disregard the requirement of "irreparability," a preliminary injunction cannot be justified in the prese......
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