Sanden v. Morgan

MAYER, District Judge (after stating the facts as above). This-motion could readily be disposed of on strictly technical grounds, but I prefer to consider it on the merits. Sections 3929 and 4041 of the Revised Statutes as amended’ have come under the consideration of the courts on a number of occasions. Public Clearing House v. Coyne, 194 U. S. 497, 509, 510, 24 Sup. Ct. 789, 48 L. Ed. 1092; Bates v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894; In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374, 36 L. Ed. 93; In re Jackson, 96 U. S. 727, 24 L. Ed. 877; People’s United States Bank v. Gilson (C. C.) 140 Fed. 1; Id., 161 Fed. 286, 88 C. C. A. 332; Missouri Drug Co. v. Wyman (C. C.) 129 Fed. 623; Harris v. Rosenberger, 145 Fed. 449, 76 C. C. A. 225, 13 L. R. A. (N. S.) 762; Hall v. Wilcox, 225 Fed. 333. [1] If it were not for the acquittal of the plaintiff on the indictment referred to supra, the motion might be disposed of without further comment. The verdict of acquittal in the criminal case is in no sense [269] res adjudicata and, even assuming, for the purpose of the argument, tiiat inquiry was made into the same kind of electric appliance which is here one of the subjects of controversy, the acquittal in the criminal case would not be relevant on the trial in this case. But in determining a motion for preliminary injunction, the court might very well take into consideration, as a persuasive argument, the proceedings in and result of the prosecution under the indictment. f 2] Of course, in the criminal case involving the trial of the indictment under section 215 of the United States Criminal Code, the government was bound to prove the guilt of the defendant to the satisfaction of the jury beyond a reasonable doubt. Here, under the most favorable construction to plaintiff, the burden is upon him, in effect, to prove a negative by a preponderance of evidence—that is to say, to overcome the presumption that the conclusion of the Postmaster General is right or to point out that the Postmaster General has exceeded the statutory grant of power or exercised it wantonly or maliciously. As Judge 1 Tough puts it: “Tlie presumption, however, is ample to put, upon a complainant a burden of proof which it is difficult to imagine him meeting on a motion for preliminary injunction.” The opinion of the solicitor for the Post Office Department, dated October 31, 1914, is a carefully considered and comprehensive review, judicial in tone, which aptly sets forth the facts disclosed by the record and states certain conclusions fully justified by that record. The proceeding before the Postmaster General was independent of the proceedings before the grand and petit juries, and the decision arrived at by the Postmaster General was an independent conclusion upon a full and fair hearing. Indeed, so far as the record shows, there was afforded to plaintiff opportunity for explanation, testimony, and argument quite as full as might be expected at the hands of a court. There are many acts of executive officials which are not reviewable by the courts, and in a case of this character, a preliminary injunction should not issue unless the court is dearly convinced that plaintiff will ultima! dv prevail. In my view, the Post Office Department should be encouraged in promptly stopping a fraudulent use of the mails, and should he restricted in its activities in that direction only where it is clear that the Postmaster General has. gone beyond his power or (as is difficult to believe) has acted wantonly or maliciously. By the prompt as well as fair exercise of the power conferred by sections. 3929 and 4041 of the Revised Statutes, supra, much damage to the public can be avoided, many unfortunate and foolish people may be spared from suffering what to them constitutes a considerable loss, and some long and tedious trials on indictments can be averted. There is nothing in the case of School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90, which entitles plaintiff to a preliminary injunction, for in the case at bar the Postmaster General has arrived at conclusions of fact based, as I may repeat, upon a full hearing. If the Postmaster General is. right, then to abrogate the fraud order pending the litigation would result in subjecting the public to loss which probably could not be repaired. If [270] the Postmaster General is wrong, then the plaintiff may suffer some financial loss- for the time being, and this he has- already suffered for a number of months without application for relief to the courts. In the circuriistances, however, plaintiff, if he so desires, is entitled to a speedy trial, and, in denying the motion, the order may provide that the cause may be placed on the June equity calendar at the option of the plaintiff. Motion denied. Settle order on two days’ notice.