Pike v. Walker, 7697.

• Decision Date: 17 March 1941
• Docket Number: No. 7697.,7697.
• Citation: 121 F.2d 37
• Parties: PIKE et al. v. WALKER, Postmaster General.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 F.2d 37 (1941)

PIKE et al. v. WALKER, Postmaster General.

No. 7697.

United States Court of Appeals for the District of Columbia.

Argued December 6, 1940.

Decided March 17, 1941.

John A. Nash and Horace J. Donnelly, Jr., both of Washington, D. C., for appellants.

Edward M. Curran, U. S. Atty., and William S. Tarver, Asst. U. S. Atty., both of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.

GRONER, C. J.

The postal service statutes authorize the Postmaster General, "upon evidence satisfactory to him", to deny the right to receive mail to any person engaged in conducting any scheme or device for obtaining money or property through the mails by fraudulent representations or promises.¹ When the Postmaster General acts, he issues what is called a "fraud order", which commands the local postmaster to stamp the offender's mail "fraudulent" and return it to the senders.

Under the provisions of the statute, the Postmaster General, acting through the Solicitor of the Department, served appellants with a notice to show cause why a fraud order should not issue against them. A memorandum of charges accompanied the notice. Appellants appeared, filed an answer denying that they were guilty of any fraud, evidence was submitted on behalf of the Department and on their behalf, and the question whether they were guilty was argued. The hearing was then closed without findings or decision, and seven months later the order issued. At the hearing, Murray, an attorney in the office of the Solicitor of the Department, acted as presiding officer, and Connolly, another attorney in the same office, appeared for the Department. After the hearing was concluded, Murray had some private discussion with Connolly about the case, informed Connolly that he thought a case had been made, and requested Connolly to prepare findings of fact to sustain that view. Connolly read the transcript and prepared findings, which Murray accepted with a few minor changes. This paper was not served upon the appellants or their counsel, nor were they even notified that findings had been made. The Acting Solicitor of the Department examined the record, read the brief, directed some changes in the findings, and affixed his signature thereto with a recommendation to the Postmaster General that a fraud order issue. The Postmaster General then satisfied himself that the recommendation had been signed by the Acting Solicitor, and thereupon signed and issued the order. He neither heard nor read any of the evidence, nor did he read or consider the appellants' answer or the brief filed in their behalf, and except that he "glanced through several pages of the findings of fact and recommendation and thereby acquainted himself with the nature of the scheme,"² he knew nothing of the controversy of his own knowledge. Appellants thereafter brought this suit in the United States District Court to restrain and enjoin the enforcement of the order, on the principal ground that the circumstances under which it issued deprived appellants of their right to due process of law. The trial court dismissed the complaint, on the ground that under the statute no hearing at all was required and that the Postmaster General had done nothing which made his decision "palpably wrong".

On this appeal, appellants insist that the failure to afford them the right to see and have access to the findings of fact prepared by the active prosecutor and the action of the Postmaster General in putting the fraud order into effect without reading or considering the testimony or hearing argument, or reading appellants' brief, was a denial of due process.

The Postmaster General, with commendable frankness, admits that the facts are as appellants say, but he takes the broad position that no individual has a natural or constitutional right to have his communications delivered by the postal establishment of the government, and hence that a fraud order may be issued summarily and without any notice or any hearing. Therefore, he insists that since no hearing is required, the courts are without power or authority to consider whether an adequate hearing was accorded. He also takes the further position that his action in issuing a fraud order is purely executive and discretionary; that in doing so he is not discharging a judicial function, and hence is under no obligation personally either to hear or examine the evidence, or to read or hear appellants' argument.

Public Clearing House v. Coyne³ is principally relied on for this position, and it is quite true that there the Supreme Court said that the power vested in Congress by the Constitution to establish a postal system is permissive and therefore unlike the grant of power to defend the government against insurrection or foreign invasion or the obligation to protect the life, liberty, and property of the citizen. And from this it deduced the right of Congress to designate what may be carried in the mails and what excluded; to make distinctions between sealed and unsealed letters and packages; to restrict the use to letters and deny it to periodicals; to include periodicals and exclude books; to apply different rates of postage to different articles and prohibit some altogether; and, on the same principle, to forbid the delivery of letters to...