Branaman v. Harris

• Decision Date: 25 May 1911
• Citation: 189 F. 461
• Parties: BRANAMAN v. HARRIS.
• Court: U.S. District Court — Western District of Missouri

189 F. 461

BRANAMAN v. HARRIS.

United States Circuit Court, W.D. Missouri, Western Division.

May 25, 1911

Marley & Grover, for complainant.

Leslie J. Lyons, for defendant.

VAN VALKENBURGH, District Judge.

This is a bill in equity to enjoin the defendant, postmaster at Kansas City, Mo., from executing against the complainant an order of the Postmaster General of date September 29, 1910 forbidding the said postmaster to pay any postal money orders drawn to the order of complainant or to the Dr. Branaman Remedy Company, and its officers and agents, as such, and directing the said postmaster to inform the remitter of any such postal orders that payment thereof has been forbidden and that the amount thereof will be returned upon the presentation of the proper order, and further instructing said postmaster to return all letters, whether registered or not, and other mail matter which shall arrive at his office directed to the said concern and parties, to the postmaster at the offices at which they were originally mailed, to be delivered to the senders thereof with the words 'Fraudulent. Mailed to this address. Returned by order of Postmaster General'-- plainly written or stamped upon the outside of such letters or matter; for the reason, that the said Postmaster General, upon evidence satisfactory to him had found that the said Dr. George M. Branaman and the said Dr. Branaman Remedy Company were at the time of the issuance of such order engaged in conducting a scheme or device to obtain money through the mails by means of false and fraudulent pretenses, representations, and promises in violation of the acts of Congress in such cases made and provided.

It appears: That, upon complaint of numerous person who had had business dealings with the complainant herein and the Remedy Company above named, the Post Office Department of the United States, through the post office inspectors of the Kansas City division, made an investigation of the business of complainant; said investigation extending over a considerable period. That on the 16th day of May, 1910, the written report of the post office inspectors was forwarded to the Postmaster General, accompanied by numerous exhibits in support thereof. That thereafter, on the 26th day of July, 1910, the Postmaster General, through the Assistant Attorney General for the post office department, forwarded to the complainant, in his own name and in the name of the Dr. Branaman Remedy Company, a notice to show cause why a fraud order should not be issued against them, in accordance with the provisions of sections 3929 and 4041 of the Revised Statutes as amended (U.S. Comp. St. 1901, pp. 2686, 2749). This notice was accompanied by a memorandum outlining the charges made and designated August 10, 1910, at 10:30 a.m., as the time when the respondents might appear and make reply to the charges set forth in the memorandum. This notice and the accompanying memorandum were duly received by the complainant, and on the date named the complainant, representing himself and the Remedy Company, appeared in person and further by Francis G. Hanchett, of Chicago, his attorney, and W. H. Ketcham, Esq., whom he had employed to make certain investigations for his defense in this proceeding. The hearing before the post office department occupied three days, and upon the conclusion thereof complainant, through his attorney, asked and received three weeks' time within which to file a brief. During this period a brief and argument of 38 printed pages was filed and considered. Thereafter, on September 29, 1910, the Postmaster General issued the order above referred to denying to the complainant and the Dr. Branaman Remedy Company, its officers and agents, as such, the use of the mails in the manner specified.

Thereupon complainant filed his bill in equity in this court to restrain the enforcement of this order, alleging that his business and that of the Remedy Company aforesaid is and always had been a lawful one; that the action of the Postmaster General was the result of a conspiracy involving the American Medical Association, the Jackson County Missouri Medical Association, Drs. John S. Wever, and Halsey M. Lyle of Kansas City, Mo., Drs. Porter A. Wells and Oscar Wilkinson of Washington, D.C., Paul V. Keyser, Assistant Attorney General of the United States, George A. Leonard, Post Office Inspector of the United States at Kansas City, and the Assistant Attorney General for the Post Office Department, which had been formed as alleged for the purpose of destroying the complainant's business; that the charges made against complainant were wholly false and fraudulent; that said hearing before the post office department was held without reasonable and sufficient notice; that at said hearing there was no evidence to show or tending to show that the complainant or the Remedy Company were conducting or had ever conducted a scheme or device for obtaining money or property through the mails by means of false or fraudulent pretenses, representations, or promises; that the finding of the Postmaster General was without any evidence upon which the same might legally be based; that the whole matter was without the jurisdiction of the Postmaster General; and that the Postmaster General was without authority in law for making said order.

To this bill of complaint the United States Attorney for the Western District of Missouri made answer, and the cause came on for hearing upon the question of the issuance of a temporary injunction. At said hearing there was introduced, by common consent, all the matters in evidence before and under consideration by the Postmaster General. In addition thereto, the complainant offered a large number of affidavits in support of his contention. The government offered affidavits of the United States Attorney and Post Office Inspector Leonard controverting certain statements more particularly affecting their personal connection with the controversy. The matter was exhaustively argued. Meantime, without the intervention of a restraining order, the status quo was preserved, with some modification, by agreement of parties.

The law governing the authority of the Postmaster General in cases of this nature has been clarified and settled by recent exhaustive opinions both by the Supreme Court of the United States and the Court of Appeals for this circuit. It has been the settled law in this country for more than 100 years that courts will not interfere to control an executive officer in the discharge of a duty involving the exercise of judgment and discretion. Beginning with the opinion of Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 166, 2 L.Ed. 60, this doctrine has been steadily maintained. In that case it was said:

'Whatever opinion may be maintained of the manner in which executive discretion may be used, still there exists, and can exist no power to control that discretion. ' Noble v. Union River Logging Railroad, 147 U.S. 171, 13 Sup.Ct. 271, 37 L.Ed. 123; Decatur v. Paulding, 14 Pet. 515, 599, 10 L.Ed. 559, 609; Gaines v. Thompson, 7 Wall, 347, 19 L.Ed. 62; United States ex rel. Dunlap v. Black, 128 U.S. 40, 9 Sup.Ct. 12, 32 L.Ed. 354; Burfenning v. Chicago, St. Paul, etc., Ry. Co., 163 U.S. 323, 16 Sup.Ct. 1018, 41 L.Ed. 175; Johnson v. Drew, 171 U.S. 93, 18 Sup.Ct. 800, 43 L.Ed. 88; Gardner v. Bonestell, 180 U.S. 362, 21 Sup.Ct. 399, 45 L.Ed. 574; In re Rapier, 143 U.S. 110, 12 Sup.Ct. 374, 36 L.Ed. 93; Enterprise Savings Association v. Zumstein, (C.C.) 64 F. 837; American School of Magnetic Healing v. McAnnulty, (C.C.) 102 F. 568; Id., 187 U.S. 94, 23 Sup.Ct. 33, 47 L.Ed. 90; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 Sup.Ct. 698, 47 L.Ed. 1074; Bates & Guild Co. v. Payne, 194 U.S. 106, 24 Sup.Ct. 595, 48 L.Ed. 894; Public Clearing House v. Coyne, 194 U.S. 497, 24 Sup.Ct. 789, 48 L.Ed. 1092; Harris v. Rosenberger, 145 F. 449, 76 C.C.A. 225, 13 L.R.A. (N.S.) 762; Missouri Drug Co. v. Wyman (C.C.) 129 F. 623; Bank v. Gilson, 161 F. 286, 88 C.C.A. 332.

In the foregoing cases the supervisory control retained by the courts over the acts of executive officers is well defined. If fraud is present and the executive officer acts arbitrarily and without substantial and credible evidence to support his conclusions, or entirely beyond the limits of his powers, and without the authority of any law, the citizen is not without his remedy. But what is the extent of the court's inquiry in such cases? It will examine into the charges of fraud, if any; it will note whether the administrative officer has acted in the matter within his authority; it will ascertain what proceedings were had and what evidence was produced before him; and, if it finds that there was no fraud, that the officer has acted within the authority conferred upon him by statute, and that there was credible evidence before him tending to sustain his decision, then it will properly proceed no further with that inquiry, because it has no jurisdiction to do so. It cannot review his decision and substitute its judgment for his upon the questions of law and fact confided by law to his discretion. To hold other wise would be to set at naught the well-considered and consistent decisions of our courts of last resort for more than a century. 'The reason for this,' says Mr. Justice Miller in Gaines v. Thompson, supra, 'is that the law reposes this discretion in him for that occasion, and not in the courts. The doctrine, therefore, is as applicable to the writ of injunction as it is to the writ of mandamus.'

In United States ex rel. Dunlap v. Black, supra, the same learned justice said:

'The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary

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