actual fraud in fact. statutes are only intended to cover cases of "That in and about their business they carried on and conducted, not only the treat2. The determination of the Postmastering of people afflicted with ills at their esGeneral that letters addressed to a certain tablishment at said city, but also engaged in corporation should be refused delivery is the business of teaching and educating oth not so conclusive on the Federal courts as to preclude them from granting injunctive [No. 27.] Submitted January 29, 1902. Restored to docket for oral argument February 24, 1902. Argued October 15, 16, 1902. Decided November 17, 1902. ers in the practical science of healing, and that a large amount of their business consists of treatment by letter and advice to people throughout the United States and foreign countries; and in the treatment under said circumstances, they have built up a large and extensive business in the way of receipts of such treatment, received through the United States mail, by letter, registered package, and otherwise, in the nature of checks, drafts, and United States moneys; that said business has grown to such an ex APPEAL from the Circuit Court of the tent that, immediately and for a long time United States for the Western District prior to the grievances hereinafter comof Missouri to review a decree dismissing a bill to enjoin a postmaster from carrying out an order of the Postmaster General directing the retention of letters addressed to a corporation. Reversed. See same case on motion for temporary injunction, 102 Fed. 565. Statement by Mr. Justice Peckham: This is an appeal under § 5 of the circuit court of appeals act of 1891, to review directly the decree of the circuit court of the United States for the western district of Missouri, dismissing the bill of complainants (appellants) on the merits. The bill, as amended by leave of the court, averred in substance that the complainants are, the one a business corporation incorporated under the laws of and doing business in the state of Missouri, and the other a resident and citizen of the state of Missouri; that the defendant was, at the time of the filing of the bill and at the times therein stated, postmaster in charge of the United States postoffice in the city of Nevada, state of Missouri, and a resident and a citizen of that state; that as such postmaster he has the exclusive management of the postoffice in the city of Nevada, and of the receipt and distribution of mail received at that city through the United States mails. plained of, the receipts through the United States mails, in the manner aforesaid, for the treatment of persons throughout the United States and foreign countries, have reached and averaged about from $1,000 to $1,600 per day. "And your orators state that said business is a legal and legitimate business, conducted according to business and legal methods, and is founded largely, and almost exclusively. on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treating, curing, benefiting, and remedying thereof. "And that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to, and complainants discard [97] and eliminate from their treatment what is commonly known as divine healing and Christian science, and complainants are confined to practical scientific treatment, emanating from the source aforesaid. "That for a long time previous and prior to the grievances hereinafter mentioned, said corporation has been sending out a large amount of advertising matter through the United States postoffice at said city of Nevada, and that all of its receipts, by checks, It was further averred that the American drafts, or money orders aforesaid, have been School of Magnetic Healing is located and received by and delivered to them through has its chief office and place of business at the United States postoffice at the city of the city of Nevada, and the complainant Nevada, of which the respondent herein has Kelly was at the time of the filing of the exclusive charge as postmaster aforesaid, [96]bill and at all the dates and times *men- and had, during the time aforesaid, been retioned therein secretary, treasurer, and gen-ceiving a large number of letters addressed eral manager of the corporation. In Novem- to said institution and to its office, regardber, 1897, he located at Nevada, and engaged in the business of healing diseases and ailments of the human family, and the business of teaching the science of healing of human "That all such mail, letters, and commuills, and that in April, 1898, he procured nications are generally addressed and dithe incorporation of the business under the rected to the American School of Magnetic laws of the state of Missouri, under the Healing at said city, and that in many cases name of the American School of Magnetic said letters are and may be addressed to said Healing, and among the stockholders of the J. H. Kelly, secretary or treasurer or mancompany the complainant Kelly was one; ager, or to J. H. Kelly, individually, or to that large buildings were erected for such Prof. J. H. Kelly, or to J. H. Kelly or Prof. business, and large amounts expended in ad- J. H. Kelly, secretary, treasurer, or manavertising the same. The bill further averredger of the American School of Magnetic as follows: Healing. ing its treatment and manner of treatment, and business letters pertaining to, and inquiring into, the manner of treatment. "That said Kelly is also receiving, and for a long time past has been receiving, letters addressed to him individually upon social matters from friends and acquaintances, and concerning business not pertaining to or connected with the business hereinafter stated. "That prior to the grievances hereinafter mentioned, said institute was receiving in the way of letters addressed to it or to its officers in the manner aforesaid, an average of about the sum of 3,000 letters per day, and ever since the happening of the grievances hereinafter mentioned there have been accumulating in said post office letters belonging to your orator, addressed in the manner before stated, probably to the total number of 25,000 letters. "That all of said letters, as your orators are informed and believe, are duly stamped [9] and ready for delivery to them but *for the action of the postmaster and Postal Department hereinafter mentioned." It was then averred that persons who were prompted by assumed competitive interference with their business complained to the United States Postoffice Department at Washington that complainants were not en gaged in legitimate business, and therefore, on May 15, 1890, the Postoffice Department made the following order: Postoffice Department, Washington, D. C., May 15, 1900. It having been made to appear to the Postmaster General, upon evidence satisfactory to him, that the American School of Magnetic Healing, S. A. Weltmer, president, J. H. Kelly, secretary, and J. A. Kelly, at Nevada, Missouri, are engaged in conducting a scheme or device for obtaining money through the mails by means of faise and fraudulent pretenses, representations, and promises, in violation of the act of Congress entitled "An Act to Amend Certain Sections of the Revised Statutes Relating to Lotteries, and for Other Purposes, Approved September 19, 1900." upon the outside of such letters or *matter. [99] Ch. Emory Smith, Since such order the defendant has refused to deliver any mail whatever to the complainants, and there had, when the bill was filed, as complainants aver on information and belief, accumulated at the postoffice at Nevada letters addressed to them containing checks, drafts, money orders, or money to an aggregate of at least $10,000 in value; that these checks, drafts, etc., came from various customers and clients throughout the United States and foreign countries, who had all been treated and for whom the complainants had performed services, under contracts with such parties, and that the sums were so sent in the respective letters in payment for services performed and rendered to the senders respectively, all of the senders being willing, and at all times have been willing, that their letters containing the remittances should be turned over to the complainants, they making no objection or complaint thereto. The complainants further averred that they had been informed by the defendant that on Monday, the 28th day of May, then coming, he intended to stamp on each and every one of the letters addressed to the complainants, under any of the designations theretofore mentioned in the bill, the word "fraudulent" across the face of each letter, without opening it and without knowing what such letter contained, or the nature or character of the contents, and that the Now, therefore, by authority vested in him defendant would then return the letter to by said act and by the act of Congress en- the sender thereof in all cases where, from titled "An Act for the Suppression of Lot- the outside of the letter or envelope, he was tery Traffic through International and In- able to determine from whom the same was terstate Commerce and the Postal Service, received, and as to all other letters addressed Subject to the Jurisdiction and Laws of the to the complainants, where he was unable to United States, Approved March 2, 1895," the *determine from the outside from whom the[100] Postmaster General hereby forbids you to letters were sent, the defendant would stamp pay any postal money order drawn to the with the word "fraudulent," and send to order of said concern and persons, and you the dead letter office of the United States are hereby directed to inform the remitter Postoffice Department all such letters; and of any such postal money order that payment the defendant stated that he would refuse thereof has been forbidden, and that the to deliver any further mail or letters to the amount thereof will be returned upon the complainants or either of them, that might presentation of a duplicate money order, ap-be received at his said postoffice addressed plied for and obtained under the regulations of the Department. to them or either of them. Complainants then averred that if the reAnd you are hereby instructed to return spondent were permitted to do these things, all letters, whether registered or not, and and to return the letters, and refused in the other mail matter which shall arrive at your future to deliver or allow complainants to office directed to the said concern and per receive any letters or mail matter at the sons, to the postmasters at the offices at postoffice at Nevada, it would work irreparwhich they were originally mailed, to be deable injury, loss, and damage to the comlivered to the senders thereof, with the word plainants, and would result in eventually "fraudulent" plainly written or stamped embarrassing, crippling, breaking up, and The bill then averred that the action of the defendant was based upon the order of the Postmaster General, above set forth, who assumed to act under §§ 3929 and 4041 of the Revised Statutes of the United States, and § 4 of an act approved March 2, 1895. 28 Stat. at L. 963, 964, chap. 191. Section 3929 of the Revised Statutes is set forth in the margin.† destroying complainants' legitimate busi- or diseases. Complainants further averred ness; and that the complainants had no that the provisions of the statutes above other legal or adequate remedy by which they mentioned are in violation of the 4th, 5th, could prevent the committing of the acts and 14th Amendments to the Constitution and grievances complained of than by writ of the United States, in that they undertake of injunction. to deprive persons of their property and property rights without due process of law; and, if the statutes were enforced they would place in the power of the postmaster and the Post office Department of the United States the sole and exclusive right to pass[102] upon the rights of the complainants, as between themselves and other parties with whom they deal and transact business through the mails, without a hearing; and Section 4041 is of the same purport as that the provisions of the statute are void [101]3929, excepting *that instead of providing for the reason that they provide for no trifor the retention of registered letters, it for- bunal, court, or authority to hear or deterbids the payment by any postmaster to the mine any viclation of the statute or claimed person or company described of any postal violation of the statutes, but placed the same money orders drawn to his or its order, or absolutely in the power and control of the to his or its favor, or to any agent of any postmasters and the Postoffice Department; such person or company, and it provides for and that the statutes vest an arbitrary disthe return to the remitters of the sums of cretion in the postmasters and the Postoffice money named in those money orders. Sec- Department or the Postmaster General to tion of the act (Laws of 1895, chap. 191; determine as he may see fit, whether right or 28 Stat. at L. 693, 694) amended $ 3929 of wrong, the question as to who shall or who the Revised Statutes so as to provide for the shall not have and receive mail from the retention of all letters, instead of merely United States Postoffice Department, and registered letters as in the original section. who shall and who shall not use the United Before the issuing of the written order by States mails, and vest in the Department or the Postmaster General prohibiting the de- the Postmaster General if enforced, the pow livery of mail matter to the complainants, er to interdict and absolutely prohibit the and pursuant to notice from the Postmaster carrying on of all commercial and business General, the complainants went before that transactions of the country done through official at Washington and had a hearing the mailing system, if they see fit to do so, before him, and gave their reasons why what and make the postmasters and the Postoffice is termed a "fraud order" should not be is Department the sole judges in their own case. sued, and that the Postmaster General, aftThe complainants then asked for an iner hearing evidence such as in his judgment junction to restrain the postmaster from carwas contemplated by the sections of the stat-rying out the order of the Postmaster Genutes above mentioned, issued the order above referred to, and thereupon the defendant has refused to permit the delivery of the mail, and assigns as his only reason for so doing that it would be in violation of the order of the Postmaster General, founded upon the provisions of the statute already set forth. The bill then averred that the statutes have no application whatever to the conduct or carrying on of complainants' business, which is a legitimate one, and that no fraud, The court sustained the demurrer, and, the deceit, deception, or misrepresentation of any complainants declining to plead further, it kind has ever been practised by them, and was decreed by the court that the amended that their customers or clients do not claim bill of the complainants was insufficient in or assert that the complainants have in any law and equity, and it was thereupon dismanner practised any fraud, deceit, or mis-missed at complainants' cost. representation at any time in procuring the eral, and that a decree might be entered per- The defendant demurred to the complainants' amended bill (1) on the ground that the complainants had not stated any such ' case as entitled them to any relief; (2) because the complainants had not stated any ground for equitable relief against the defendant, and had not shown any reason why an injunction should be granted. business from them, or in curing their ills Mr. James H. Harkless for appellants †Sec. 3929. The Postmaster General may, all such registered letters to the postmasters upon evidence satisfactory to him that any per- at the offices at which they were originally son is engaged in conducting any fraudulent mailed, with the word "fraudulent" plainly lottery, gift enterprise, or scheme for the diswritten or stamped upon the outside of such tribution of money, or of any real or personal letters; and all such letters so returned to such property, by lot, chance, or drawing of any postmasters shall be by them returned to the kind, or in conducting any other scheme or de- writers thereof, under such regulations as the vice for obtaining money through the mails by Postmaster General may prescribe. But nothmeans of false or fraudulent pretenses, repre- ing contained in this title shall be so construed sentations, or promises, Instruct postmasters as to authorize any postmaster or other perat any postoffices at which registered letters son to open any letter not addressed to himself. arrive directed to any such person, to return 93 on original submission. Messrs. John tions, or promises. Can such a business be properly pronounced a fraud within the statutes of the United States? Solicitor General Richards and Mr. There can be no doubt that the influence Robert A. Howard for appellee on orig- of the mind upon the "physical condition of [104] inal submission: the body is very powerful, and that a hopeIn the exercise of his discretion, the Post-ful mental state goes far, in many cases, master General cannot be supervised or con- not only to alleviate, but even to aid very Sav. Asso. v. Zumstein, 64 The finding of the Postmaster General on the issue of fact is an act involving the ercise of judgment and discretion. Enterprise Sav. Asso. v. Zumstein, 64 Fed. 840. Courts will not interfere to control an executive officer in the discharge of a duty involving the exercise of judgment and discretion. Decatur v. Paulding, 14 Pet. 515, 10 L. ed. 568; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62. Mr. James H. Harkless for appellants on oral argument. Mr. Robert A. Howard for appellee on [103] *Mr. Justice Peckham, after making These allegations are not conclusions of law, but are statements of fact upon which, as averred, the business of the complainants is based, and the question is whether the complainants, who are conducting the business upon the basis stated, thereby obtain money and property through the mils by means of false or fraudulent pretenses, representa than most men would be ready to admit, If they fail, the answer might be that all Suppose a person should assert that, by the use of electricity alone, he could treat diseases as efficaciously and successfully as the same have heretofore been treated by "regular" physicians. Would these statutes justify the Postmaster General, upon evidence satisfactory to him, to adjudge such c'aim to be without foundation, and then to pronounce the person so claiming, to be guilty of procuring, by false or fraudulent pretenses, the moreys of people sending him money through the mails, and then to prohibit the delivery of any letters to him? The moderate application of electricity, it is strongly maintained, has great effect upon the human system, and just how far it may cure or mitigate diseases no one can tell with certainty. It is still in an empirical stage, and enthusiastic believers in it may regard it as entitled to a very high position in therapeutics, while many others may think it absolutely without value or potency in the cure of disease. Was this kind of question intended to be submitted for declsion to a Postmaster General, and was it in tended that he might decide the claim to be a fraud and enjoin the delivery of letters through the mail addressed to the person practising such treatment of disease? As the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to [106] fraud. *Unless the question may be reduced to one of fact, as distinguished from mere opinion, we think these statutes cannot be invoked for the purpose of stopping the delivery of mail matter. as payment for their professional services sent back to the writers of the letters? And, turning the question around, can physicians of what is called the "old school" be thus proceeded against? Both of these different schools of medicine have their followers, and many who believe in the one will pronounce the other wholly devoid of merit. But there is no precise standard by which to measure the claims of either, for people do recover who are treated according to the one or the other school. And so, it is said, do people recover who are treated under this mental theory. By reason of it? That cannot be averred as matter of fact. Many think they do. Others are of the contrary opin ion. Is the Postmaster General to decide the question under these statutes? Other instances might be adduced to illustrate the proposition that these statutes were not intended to cover any case of what the Postmaster General might think to be false opinions, but only cases of actual fraud in fact, in regard to which opinion formed no basis. *It may, perhaps, be urged that the in-[107] stances above cited by way of illustration do not fairly represent the casc now before us, but the difference is one of degree only. It is a question of opinion in all the cases, and although we may think the opinion may be better founded and based upon a more intelligent and a longer experience in some cases than in others, yet after all, it is, in each case, opinion only, and not existing facts with which these cases deal. There are, as the bill herein shows, many believers in the truth of the claims set forth by complainants, and it is not possible to determine as a fact that those claims are so far unfounded as to justify a determination that those who maintain them and practise upon that basis obtain their money by false pretenses within the meaning of these statutes. The opinions entertained cannot, like alle gations of fact, be proved to be false, and therefore it cannot be proved, as matter of fact, that those who maintain them obtain their money by false pretenses or promises. Vaccination is believed by many to be a as that phrase is generally understood, and preventive of smallpox, while others re-as, in our opinion, it is used in these statutes. gard it as unavailing for that purpose. Under these statutes could the Postmaster General, upon evidence satisfactory to him, decide that it was not a preventive, and exclude from the mails all letters to one who practised it and advertised it as a method of prevention, on the ground that the moneys he received through the mails were procured by false pretenses? That the complainants had a hearing before the Postmaster General, and that his decision was made after such hearing, cannot affect the case. The allegation in the bill as to the nature of the claim of complainants and upon what it is founded is admitted by the demurrer, and we therefore have undisputed and admitted facts, which show upon what basis the treatment by complainAgain, there are many persons who do not ants rests, and what is the nature and charbelieve in the homeopathic school of medi-acter of their business. From these admitted cine, and who think that such doctrine, if facts, it is obvious that complainants, in practised precisely upon the lines set forth conducting their business, so far as this recby its originator, is absolutely inefficacious ord shows, do not violate the laws of Conin the treatment of diseases. Are homeo-gress. The statutes do not, as matter of law, pathic physicians subject to be proceeded cover the facts herein. against under these statutes, and liable, at the discretion of the Postmaster General, upon evidence satisfactory to him, to be found guilty of obtaining money under false pretenses, and their letters stamped as fraudulent and the money contained therein Second. Conceding, for the purpose of this case, that Congress has full and absolute jurisdiction over the mails, and that it may provide who may and who may not use them, and that its action is not subject to review by the courts, and also conceding |