United States v. One Book, Entitled" Contraception"

• Decision Date: 16 July 1931
• Parties: UNITED STATES v. ONE BOOK, ENTITLED "CONTRACEPTION," by MARIE C. STOPES.
• Court: U.S. District Court — Southern District of New York

51 F.2d 525 (1931)

UNITED STATES v. ONE BOOK, ENTITLED "CONTRACEPTION," by MARIE C. STOPES.

District Court, S. D. New York.

July 16, 1931.

George Z. Medalie, U. S. Atty., of New York City (Morton Baum, of New York City, of counsel; and Walter R. Eaton, of New York City, solicitor to the Collector of the Port of New York, as amicus curiæ), in support of the motion for a decree of forfeiture.

Greenbaum, Wolff & Ernst, of New York City (Alexander Lindey, of New York City, of counsel), in support of motion for a decree dismissing the libel.

WOOLSEY, District Judge.

The motion to dismiss the libel herein is granted.

The motion for a decree of forfeiture is, consequently, denied.

I. This is a libel in rem brought under title 19, U. S. C., § 1305 (19 USCA § 1305), for the forfeiture of the book "Contraception," written by Dr. Marie C. Stopes, on the ground that it falls within the exclusion of that statute.

II. At the time of the argument the counsel for the respective parties submitted to me a stipulation providing that the book "Contraception" should be deemed annexed as an exhibit to the libel, that the words "by United States mails" should be stricken from article 2 of the libel, that trial by jury, provided for in title 19, U. S. C., § 1305, on forfeiture proceedings thereunder be waived, and that the issues involved herein should be raised and presented before me on a motion by the claimant to dismiss the libel, and by the libelant for a decree of forfeiture thereon.

The provisions of the statute involved, title 19, U. S. C., § 1305, in so far as they are here relevant, are as follows:

"§ 1305. Immoral Articles — Importation Prohibited. (a) Prohibition of importation. All persons are prohibited from importing into the United States from any foreign country * * * any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral, or any drug or medicine or any article whatever for the prevention of conception or for causing unlawful abortion. * * * No such articles, whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles * * * shall be subject to seizure and forfeiture as hereinafter provided: * * * Provided further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for non-commercial purposes."

The act further provides for forfeiture proceedings as follows:

"Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided. * * * Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.

"In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinary actions or suits."

III. The contention here made by the claimant that the act just quoted is unconstitutional on the ground that it interferes with the freedom of the press is sufficiently answered by my opinion in the case of United States v. One Obscene Book, entitled "Married Love," 48 F. (2d) 821, 822.

IV. There is not involved here, however, as the claimant urges, and as there was in the case of the book "Married Love," any possible question of res adjudicata, for the book "Contraception," so far as I am aware, is now for the first time libeled in a federal court to test the question of its admissibility under the section of the statutes above quoted.

It is quite true...