Aycock v. O'BRIEN

• Decision Date: 29 October 1928
• Docket Number: No. 5501.,5501.
• Citation: 28 F.2d 817
• Parties: AYCOCK v. O'BRIEN.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.2d 817 (1928)

AYCOCK v. O'BRIEN.

No. 5501.

Circuit Court of Appeals, Ninth Circuit.

October 29, 1928.

Troy Pace and H. L. Arterberry, both of Los Angeles, Cal. (Palmer, Davis & Scott, of Washington, D. C., and James, Pace, Smith & Younkin, of Los Angeles, Cal., of counsel), for appellant.

Samuel W. McNabb, U. S. Atty., and Emmett E. Doherty and Ignatius F. Parker, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

Acting under the provisions of sections 3929 and 4041, R. S. U. S. (39 USCA §§ 259, 732), the Postmaster General on December 31, 1927, issued a "fraud order" of the usual form, forbidding the postmaster at Los Angeles to pay money orders or to deliver letters addressed to Aycock Medical Institute, Aycock Medicine Combany, Aycock Medical Company, and Charles F. Aycock, or their officers or agents, at Los Angeles. The order was issued pursuant to a finding by the Solicitor of the Department, made after a hearing at which the parties named appeared and adduced evidence, that these parties were fraudulently using the mails in the promotion of sales to the public of two "patent medicines," called Tuberclecide and Metablitone represented to be efficacious in the cure of tuberculosis and other maladies. Feeling aggrieved by the order, appellant, Charles F. Aycock, whose interests, apparently to a greater extent than those of any other person, were affected thereby, brought this suit to enjoin its enforcement, and, being denied relief by the court below, he brings this appeal.

While within a limited range courts of equity will grant relief against orders of this character, it is well settled that they will not interfere where there has been no mistake of law, a fair hearing has been accorded, and the findings of the administrative officers upon issues of fact are supported by substantial evidence. In People's United States Bank v. Gilson et al., 161 F. 286, 290, the Circuit Court of Appeals of the Eighth Circuit, after reviewing the decided cases, said: "In a doubtful case within his jurisdiction in the absence of fraud or a gross mistake of fact, where there is some evidence which is satisfactory to the Postmaster General to sustain a fraud order, his decision of the question of fact upon which the order is founded is conclusive, and it will not be reviewed by the courts." See, also, New v. Tribond Sales Corp., 57 App. D. C. 197, 19 F.(2d) 671; Smith v. Hitchcock, 226 U. S. 53, 33 S. Ct. 6, 57 L. Ed. 119; U. S. ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 413, 41 S. Ct. 352, 65 L. Ed. 704; Leach v. Carlile, 258 U. S. 138, 42 S. Ct. 227, 66 L. Ed. 511.

Upon an examination of the voluminous evidence before the court below, which is substantially the same as the record upon which the order was made, we are clearly of the opinion that the case falls far within the range of this last-cited decision, and is readily distinguishable from American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 S. Ct. 33, 47 L. Ed. 90, upon which appellant relies. The advertising literature sent out by plaintiff and his companies leaves no doubt that it was intended to convey and does convey the impression that the two medicines, used in conjunction, constitute a specific cure, particularly for consumption or pulmonary tuberculosis. The very term "Tuberclecide" implies destruction of the bacillus or active organism of the disease; but, if we disregard the name, we find the printed propaganda artfully phrased to appeal to the afflicted and persuade them that an efficacious remedy for the dread disease had at last been found.

Appellant, who claims to be the discoverer of the secret formula, is not a physician, is without scientific training, and has such general education only as is afforded in the public schools. The technique and character of the appeal made in the printed literature sent out to sufferers are suggested, though not fully disclosed, by the following excerpts from the first and second pages, headed "Salutatory," of a booklet of 40 pages, much of which consists of testimonials:

"The greatest inventions of modern times that have benefited mankind have been the children of the brain of the lowly born and obscure. The greatest man the world ever produced was the child of lowly parents, and, as though God ordained, this wonderful remedy for the greatest plague the world has fought for centuries, is the product of a brain practically unknown to science or medicine. We do not claim for TUBERCLECIDE an infinite conception but we do claim and can prove beyond question that it has accomplished more than science, medical research and human effort has heretofore achieved. And though our proclamation may for a time go unheeded, the whole world will eventually acknowledge it as a remedy for tuberculosis. * * * No one can decry its merits, for hundreds have been rescued, even at the brink of the grave. * * * The United States government is doing everything possible to jail the fakers and those dealing in fake cures, but here is a company that has been using the United States mails for over seventeen years, and if its claim were not substantiated it would have been put out of business and prosecuted long ago. Can we authenticate or establish confidence in TUBERCLECIDE with stronger predication of our honesty and the merits of its remedy? * * * Many so-called cures have sprung up since TUBERCLECIDE was discovered but all have proven worthless and been discarded except TUBERCLECIDE. It has stood the acid test for eighteen years. * * * It is the discovery of Charles F. Aycock of a remarkable remedy, * * * and now his great ambition is to aid suffering humanity, not by publishing his formula for charlatans to steal, improperly concoct and defraud the public, but by collecting a nominal fee from those who can afford to pay it in order that he may treat the poor free."

It appears from the testimony that the fee thus referred to is $25. There follows a lengthy statement, well designed to...