Olesen v. Stanard, No. 14546.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtSTEPHENS and FEE, Circuit , and TAYLOR
Citation227 F.2d 785
PartiesOtto K. OLESEN, Individually and as Postmaster of the City of Los Angeles, State of California, Appellant, v. V. E. STANARD, Individually and d/b/a Male Merchandise Mart, Appellee.
Docket NumberNo. 14546.
Decision Date26 October 1955

227 F.2d 785 (1955)

Otto K. OLESEN, Individually and as Postmaster of the City of Los Angeles, State of California, Appellant,
v.
V. E. STANARD, Individually and d/b/a Male Merchandise Mart, Appellee.

No. 14546.

United States Court of Appeals Ninth Circuit.

October 26, 1955.


Laughlin E. Waters, U. S. Attorney, Joseph D. Mullender, Jr., Max F. Deutz, Asst. U. S. Attys., Los Angeles, Cal., for appellant.

Stanley Fleishman, Brock, Easton & Fleishman, Hollywood, Cal., for appellee.

Before STEPHENS and FEE, Circuit Judges, and TAYLOR, District Judge.

STEPHENS, Circuit Judge.

The defendant below is here appealing from a district court "Order Granting Preliminary Injunction" which was filed and entered August 13, 1954, enjoining him, the postmaster at Los Angeles, California, his agents and servants, from impounding and from withholding mail addressed to plaintiff-appellee V. E. Stanard, who is doing business as the Male Merchandise Mart. The pertinent part of the text of the order is quoted in the margin.1

227 F.2d 786

Appellee Stanard deposited in the post office at Los Angeles, California, for mailing to addressees, illustrated and descriptive circulars soliciting for a consideration mail orders for pictures. The circulars contained pictures of attractive young women with word descriptions or titles which clearly indicated that risque pictures would be sent to those who ordered them. The pictures were represented to be usable as motion pictures, color slides, books, and playing cards. There was nothing further in the circulars which could possibly indicate that the pictures would be of the nature denounced as unmailable under § 259a of Title 39 U.S.C.A., to-wit "obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance * * *." The full section of the statute is quoted in the margin.2

On March 1, 1954, without an administrative hearing, the Postmaster General, having the day before determined that the circulars constituted evidence satisfactory to him that the appellee was depositing or inducing the deposit in the United States mails of matter in derogation of the statute, instructed the postmaster at Los Angeles to impound all mail addressed to appellee, pending a final administrative decision as to whether Title 39 U.S.C.A. § 259a was violated by the attempted mailing of the circulars. After such determination, and after the impound order had been made, an administrative hearing was had3 in the

227 F.2d 787
nation's capital and the hearing examiner decided April 30, 1954, that appellee was violating § 259a

At the administrative hearing, appellee's advertising circulars were received in evidence, but none of the wares referred to therein was offered and no evidence was adduced to the effect that any of the advertised wares had been mailed or transported in any manner. And there was no evidence, descriptive or otherwise, that the wares which might be sent to one who ordered them through the circulars, would, in fact, be in violation of the statute. The field for appellee's operation within the law and within the representation of the circulars is a broad one and not every indelicacy or every suggestive matter is "obscene, lewd, lascivious, indecent, filthy, or vile * * *."

After the administrative hearing, the Deputy Postmaster General issued his decision (Order No. 55656) on June 11, 1954, which conformed to and adopted by reference the initial decision of the hearing examiner made April 30, 1954, and ordered the postmaster at Los Angeles as follows:

"* * * You are hereby forbidden to pay any postal money order drawn to the order of said concerns and parties and you are hereby directed to inform the remitter of any such postal money order that payment thereof has been forbidden, and that the amount thereof will be returned * * *.
"By the same authority you are hereby further instructed to return all letters, whether registered or not, and other mail matter which shall arrive at your office directed to the said concerns and parties to the postmasters at the offices at which they were originally mailed, to be delivered to the senders thereof, with the words, `Unlawful: Mail to this address returned by order of the Postmaster General\', plainly written or stamped upon the outside * * *. Where there is nothing to indicate who are the senders * * * send such letters and matter to the appropriate dead letter branch * * *." (Order No. 55656, dated June 11, 1954.)

It is agreed by all parties that the circulars themselves did not violate the statute under which the Postmaster General had assumed to act by the ex parte issuance of the impound order and the final order which issued after the administrative hearing.

Subsequently to the Postmaster General's impound order and to his Deputy's Order No. 55656 pursuant to the administrative hearing, appellee as V. E. Stanard individually and doing business as Male Merchandise Mart, brought the instant action against the postmaster at Los Angeles, California, and numerous "Does", praying for a declaration that the initial ex parte order and...

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5 practice notes
  • Manual Enterprises, Inc v. Day, No. 123
    • United States
    • United States Supreme Court
    • 25 Junio 1962
    ...172 F.2d 788, 794—795 (concurring opinion). Compare Stanard v. Olesen, 74 S.Ct. 768 (opinion of Mr. Justice Douglas), Olesen v. Stanard, 227 F.2d 785; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42. 4. The Government argues that petitioners 'complain generally of 'an unc......
  • United States v. Frew, Crim. No. 37550
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 11 Agosto 1960
    ...mailing of the circulars. The district judge in each case, following the decision in the Ninth Circuit in the case of Olesen v. Stanard, 227 F.2d 785, held that unless and until it was determined that the wares and merchandise shipped pursuant to orders received in response to the advertisi......
  • Kirby v. Shaw, No. 19822.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 24 Marzo 1966
    ...§§ 1004-1006 Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609 (1951), reversing 189 F.2d 369 (7th Cir.); Olesen v. Stanard, 227 F.2d 785, 788 n.7 (9th Cir. 1955); see also Stanard v. Olesen, 74 S.Ct. 768, 770, 98 L.Ed. 1151 (1954) (Mr. Justice Douglas); Door v. Donaldson, 90 U.S.......
  • Boston & Maine Railroad v. United States, Civ. A. No. 56-1004.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 28 Abril 1958
    ...to enter this order must arise elsewhere. Section 9, Administrative Procedure Act, 5 U.S.C.A. § 1008; Olesen v. Stanard, 9 Cir., 227 F.2d 785. Out of deference to the rights of the parties it is the duty of the court to search the Interstate Commerce Act to determine if jurisdiction to ente......
  • Request a trial to view additional results
5 cases
  • Manual Enterprises, Inc v. Day, No. 123
    • United States
    • United States Supreme Court
    • 25 Junio 1962
    ...172 F.2d 788, 794—795 (concurring opinion). Compare Stanard v. Olesen, 74 S.Ct. 768 (opinion of Mr. Justice Douglas), Olesen v. Stanard, 227 F.2d 785; Summerfield v. Sunshine Book Co., 95 U.S.App.D.C. 169, 221 F.2d 42. 4. The Government argues that petitioners 'complain generally of 'an unc......
  • United States v. Frew, Crim. No. 37550
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 11 Agosto 1960
    ...mailing of the circulars. The district judge in each case, following the decision in the Ninth Circuit in the case of Olesen v. Stanard, 227 F.2d 785, held that unless and until it was determined that the wares and merchandise shipped pursuant to orders received in response to the advertisi......
  • Kirby v. Shaw, No. 19822.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 24 Marzo 1966
    ...§§ 1004-1006 Cates v. Haderlein, 342 U.S. 804, 72 S.Ct. 47, 96 L.Ed. 609 (1951), reversing 189 F.2d 369 (7th Cir.); Olesen v. Stanard, 227 F.2d 785, 788 n.7 (9th Cir. 1955); see also Stanard v. Olesen, 74 S.Ct. 768, 770, 98 L.Ed. 1151 (1954) (Mr. Justice Douglas); Door v. Donaldson, 90 U.S.......
  • Boston & Maine Railroad v. United States, Civ. A. No. 56-1004.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 28 Abril 1958
    ...to enter this order must arise elsewhere. Section 9, Administrative Procedure Act, 5 U.S.C.A. § 1008; Olesen v. Stanard, 9 Cir., 227 F.2d 785. Out of deference to the rights of the parties it is the duty of the court to search the Interstate Commerce Act to determine if jurisdiction to ente......
  • Request a trial to view additional results

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