Jeffries v. Olesen

• Decision Date: 13 May 1954
• Docket Number: No. 15779.,15779.
• Citation: 121 F. Supp. 463
• Court: U.S. District Court — Southern District of California
• Parties: JEFFRIES v. OLESEN.

121 F. Supp. 463

JEFFRIES v. OLESEN.

No. 15779.

United States District Court, S. D. California, Central Division.

May 13, 1954.

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Jerome Weber, Reuben Rosensweig, Los Angeles, Cal., for plaintiff.

Laughlin E. Waters, U. S. Atty., Max F. Deutz, James C. R. McCall, Andrew J. Davis, Jr., Asst. U. S. Attys., Los Angeles, Cal., for defendant.

MATHES, District Judge.

Invoking the jurisdiction of this court under 28 U.S.C.A. § 1339 plaintiff seeks judgment declaring void, 28 U.S.C.A. § 2201; Skelly Oil Co. v. Phillips Co., 1950, 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194; Southern Pac. Co. v. McAdoo, 9 Cir., 1936, 82 F.2d 121, and permanently enjoining enforcement of Postoffice Department Fraud Order No. 55291 issued by the Postmaster General under the claimed authority of 39 U.S.C.A. §§ 259 and 732.

Section 259 of Title 39 of the United States Code provides inter alia that: "The Postmaster General may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery * * * or * * * any other scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, instruct postmasters at any post office * * * to return all such mail matter to the postmaster at the office at which it was originally mailed, with the word `Fraudulent' plainly written or stamped upon the outside thereof; and all such mail matter so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe." Section 732 authorizes refusal of payment of any money order drawn in favor of any person found by the Postmaster General to be engaged in conducting a lottery or scheme to defraud in violation of § 259.

Plaintiff's action was originally brought against Michael D. Fanning "individually and as United States Postmaster of Los Angeles, California." Following the trial and submission of the case for decision, Otto K. Olesen succeeded to the office, and an amended and supplemental complaint alleging that he continues the action of his predecessor in enforcing the challenged order was then filed by leave of court. Postmaster Olesen was thereupon substituted as party defendant, Fed.Rules Civ.Proc., Rule 25(d), 28 U.S.C.A., and the suit continued and submitted for decision against defendant Olesen "individually and as United States Postmaster of Los Angeles, California."

Insofar as any claim for relief is asserted against defendant in his official capacity as United States Postmaster, the action is an attempt to sue the Government, see Larson v. Domestic & Foreign etc. Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628; Wells v. Roper, 1918, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755; State of Louisiana v. McAdoo, 1914, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Belknap v. Schild, 1896, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599; Governor of Georgia v. Madrazo, 1828, 1 Pet. 110, 26 U.S. 110, 7 L.Ed. 73, in circumstances where the Congress has not by statute consented that the Sovereign may be sued. See United States v. Sherwood, 1941, 312 U.S. 584, 586-587, 61 S.Ct. 767, 85 L.Ed. 1058; Munro v. United States, 1938, 303 U.S. 36, 41, 58 S.Ct. 421, 82 L.Ed. 633; United States v. Clarke, 1834, 8 Pet. 436, 33 U.S. 436, 444, 8 L.Ed. 1001. Hence the action against Olesen qua United States Postmaster must be dismissed for want of jurisdiction over the person of the defendant in his official capacity. Cf. Blackmar v. Guerre, 1952, 342 U.S. 512, 515-516, 72 S.Ct. 410, 96 L.Ed. 534; Larson v. Domestic & Foreign Corp., supra, 337 U.S. at page 683, 705, 69 S.Ct. 1457; Wells v. Roper, supra, 246 U.S. at page 338, 38 S.Ct. 317.

The object of the suit is to restrain the defendant in his individual capacity from doing acts which it is alleged he has no lawful authority to do. As said Mr. Justice Holmes in Colorado v. Toll, 1925, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927: "There is no question that a bill in equity is a proper remedy and that it may be pursued against the defendant without joining either his superior officers or the United States." 268 U.S. at page 230, 45 S.Ct. at page 506.

The defendant, qua individual, as Mr. Justice Miller explained in Cunningham v. Macon etc. R. R. Co., 1883, 109 U.S. 446, 3 S.Ct. 292, 27 L.Ed. 992, "is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him." 109 U.S. at page 452, 3 S.Ct. at page 297.

Upon this principle that an action may always be maintained within the equity jurisdiction of this court to restrain a Federal official from exceeding his lawful authority, a citizen may sue to enjoin a United States Postmaster in his individual capacity from withholding mail. Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95; American School of Magnetic Healing v. McAnnulty, 1902, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90; cf. Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209; Ickes v. Fox, 1937, 300 U.S. 82, 96-97, 57 S.Ct. 412, 81 L.Ed. 525; Morrison v. Work, 1925, 266 U.S. 481, 486-487, 45 S.Ct. 149, 69 L.Ed. 394; Philadelphia Co. v. Stimson, 1912, 223 U.S. 605, 619-620, 32 S.Ct. 340, 56 L.Ed. 570.

In the case at bar the evidentiary facts are not in dispute. As a result of discussions with members of the medical profession and servicemen while spending two and one-half years in an army hospital, plaintiff evolved the idea of an appliance to aid the male in sexual intercourse.

In 1952 plaintiff established the business of "E-S Laboratories" with an investment of some ten thousand dollars, and produced for sale the appliance in question, called "The Erector."

Sales were solicited through direct-by-mail advertising literature to names and addresses appearing on lists of known buyers of male hormones, purchased by plaintiff from mailing-list companies.

The advertising literature sent by plaintiff through the mails consists of a 5" × 8" folded leaflet containing printed matter on all four sides, with an illustration of the appliance at the top of the front page. Since this leaflet admittedly sets forth all the representations sent by plaintiff through the mails, it is reproduced in full in the margin.¹

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On May 19, 1953, the Solicitor for the Post Office Department filed a complaint alleging that "a fraudulent scheme is being conducted * * * in that respondent plaintiff here is now and has been obtaining remittances of money through the mails for a device called the "Erector" by means of false and fraudulent pretenses, representations and promises * * *."

This complaint alleged in particular that "by means of * * * unsolicited circular matter * * * respondent is representing to the public in substance and effect:

"a. That the said `Erector,' when used as directed by men `supplies the necessary rigidity to induce' the sex `organ to function', that is to say, that the use of said device by any man unable to perform the sex act will enable him to do so normally;

"b. That any man whose sex organ `become(s) impaired from general debility, excesses and other causes,' by the use of the said `Erector' as directed, will overcome those conditions and be able to perform the sex act normally;

"c. That by the use of the said `Erector' no man needs `to lose aggressiveness' or `suppress' his desires because of `weak erections', that is to say, that the said device will eliminate weak erections;

"d. That, when used as directed, the said `Erector' will prevent `premature ejaculation';

"e. That by the use of the said `Erector' any man who cannot perform the sex act because of `Fear of failure and imaginary obstacles' will obtain a restoration of confidence and be able to enjoy normal sexual relations;

"f. That any man who has a `Desire to Cohabit', will be able to do so by the use of the said `Erector' as directed regardless of his age or physical condition;

"g. That the said `Erector' is designed `to aid married men in their marital relations' to `eliminate the strain, expense and necessity of expensive drugs and hormones'; and

"h. That the said `Erector is designed' to and will `aid married men in their marital relations', to `prolong normal, healthy marital relations and insure the happiness of married couples.'

"That such statements are false and fraudulent.

"Wherefore, premises considered, it is recommended that a fraud order be issued by the Postmaster General against the name and address set forth in the caption hereof pursuant to the provisions of Title 39 U.S. Code, Sections 259 and 732."

A hearing on this complaint was set for June 10, 1953, before a Hearing Examiner in Washington, D. C. On May 22, 1953, notice of the hearing was served upon plaintiff in California. Plaintiff thereupon made written application that the place of hearing be transferred across the continent to Los Angeles. This was denied. Application for a rehearing upon the request to transfer the hearing was likewise denied.

Plaintiff then filed an answer denying generally and specifically "that a fraudulent scheme is being conducted"; or that he has obtained "remittances of money through the mail for a device called the `Erector' by means of false and fraudulent pretenses, representations and promises"; or "that any * * * statements appearing in his advertising * * are false or fraudulent."

On June 25, 1953, a hearing was held at Washington, D. C. Neither plaintiff nor his counsel was able to appear. The hearing consisted of the swearing of a postal inspector, who identified the advertising matter admittedly being sent by plaintiff through the mails, and the testimony of a physician.

The Hearing Examiner's opinion, finding plaintiff's use of the...