Post Pub. Co. v. Murray

• Decision Date: 07 March 1916
• Docket Number: 1145.
• Citation: 230 F. 773
• Parties: POST PUB. CO. v. MURRAY.
• Court: U.S. Court of Appeals — First Circuit

230 F. 773

POST PUB. CO. v. MURRAY.

No. 1145.

United States Court of Appeals, First Circuit.

March 7, 1916

Edmund A. Whitman, of Boston, Mass. (Elder, Whitman & Barnum, of Boston, Mass., on the brief), for appellant.

Louis Goldberg, Asst. U.S. Atty., of Boston, Mass. (George W Anderson, U.S. Atty., of Boston, Mass., Horace J. Donnelly of Washington, D.C., and Leo A. Rogers, Sp. Asst. U.S. Atty of Boston, Mass., on the brief), for appellee.

Before PUTNAM and BINGHAM, Circuit Judges, and ALDRICH, District judge.

ALDRICH District Judge.

This is an equity proceeding in the District Court, in which the Post Publishing Company asked to be relieved from an order of the Boston postmaster, made under direction of the Department at Washington, whereby certain issues of the Boston Post were excluded from the Boston post office and from the mails. The Boston Post is a newspaper published in Boston.

On May 1, and May 2, 1915, it published a certain advertisement in which were represented pictures of headless women shoppers. The advertisement was in part as follows:

'Attention, Ladies.

'During this week Post Photographers will take snapshots in the Busy Boston Shopping District of Fifty Women Shoppers.

'These pictures will be developed and illustrations made in the usual way, and then their Heads will be Cut off.

'The Headless Pictures will be published-- twenty-five in next Saturday's Post and twenty-five in next Sunday's Post-- numbered but without names. The names will not be known to the Post Photographers.

'The Ladies Photographed are invited to identify the Headless Photos.

'A Five Dollar Gold Piece for Each Identification.

'Ladies who recognize themselves are invited to call at Room 305, third floor, 257 Washington Street, Boston, between 2 p.m. and 5 p.m. on the following Monday, May 3, Tuesday, May 4, or Wednesday, May 5, wearing the same hat and costume as when photographed. A woman representative of the Sunday Post will be present. As she will have at hand the missing heads duly numbered, she will be able to readily confirm the identifications. Five Dollars in Gold will be presented to each photographed shopper who is thus identified, but payment will be made only to the originals of the photographs. A list of identifications will be published.

'$250 for 50 Ladies Who Recognize Themselves.'

Under departmental interpretation of the act of Congress in respect to lotteries, games of chance, and gift enterprises, the Post was excluded from the Boston post office and from the mails. Section 213 of the Penal Code of the United States in question is as follows, and the material provisions thereof are italicized:

'No letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance; and no lottery ticket or part thereof, or paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance; and no check, draft, bill, money, postal note, or money order, for the purchase of any ticket or part thereof, or of any share or chance in any such lottery, gift enterprise, or scheme; and no newspaper, circular, pamphlet, or publication of any kind containing any advertisements of any lottery, gift enterprise or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of * * * such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be deposited in or carried by the mails of the United States, or be delivered by any postmaster or letter carrier. Whoever shall knowingly deposit or cause to be deposited, or shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of the provisions of this section, or shall knowingly deliver or cause to be delivered by mail anything herein forbidden to be carried by mail, shall be fined not more than one

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