Lewis Pub. Co. v. Wyman

HOOK, Circuit Judge

(after stating the facts, as above) . The principal contention on this appeal is that the Woman’s Magazine, a monthly publication the subscription price of which was 10 cents a year, had been fully accorded the right to transmission through the mails as second-class matter at the pound rate of postage, and the Postmaster General annulled it without the hearing provided by law. Act March 3, 1901, c. 851, 31 Stat. 1107 (U. S. Comp. St. 1901, p. 2655). The decision of the Postmaster General proceeded upon the assumption that the case was one of an original application for entry of the publication as second-class matter instead of one concerning an entry previously accorded. But whatever the true situation in this respect may have been and whether a legal hearing was had are questions that need not now be determined. After the order complained of was made by the Postmaster General, and while this suit was pending in the Circuit Court, complainant made another application for entry, and upon compliance with certain requirements of the department it was granted. Complainant has ever since enjoyed the privilege. Manifestly, therefore, whether it had been previously accorded, and, if so, whether it was annulled without, a hearing,, are moot questions. The functions of a judicial tribunal do not extend to the declaration of abstract principles of law or the determination of questions of fact not involved in actual controversy. When the element of controversy disappears from a case through a change of circumstances or by the act of the parties, the case will be dismissed. It is no answer for a party to say he yielded to the stress of the situation. American Book Co. v. Kansas, 193 U. S. 49, 24 Sup. Ct. 397, 48 L. Ed. 613; Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293. Complaint is made, however, that the right finally accorded complainant is not all it was entitled to under the law. In admitting the publication to entry at the second-class rate the department limited the sample copies that might be so transmitted through the mails to a number equal to that of the degitimate subscribers. It is contended that when a publisher has once been accorded the second-class privilege there is, as long as he retains it, no limit to the number of sample copies he can send through the .mails at the pound rate. This contention is based on the language of the act of March 3, 1885, which prescribes a postage rate of one cent per' pound or fraction thereof for publications of the second class “including sample copies.” Act March 3, 1885, c. 342, 23 Stat. 387 (Eh S. Comp. St. 1901, p. 2669). The act does not specifically place a limit on the number of sample copies, and it is claimed the department can therefore impose none. The words “including sample copies” were also in Act March 3, 1879, c. 180, § 11, 20 Stat. 359. We think that under the authority conferred by Congress (Rev. St. § 161 [U. S. Comp. St. 1901, p. 80]) upon the head of the department to prescribe regulations not inconsistent with law for the performance of its business, the Postmaster General may lawfully impose such a limitation. The act of Congress does not purport to grant an unlimited privilege as to sample copies, and its very generality and indefiniteness invites a supplementary regulation. It is not necessary to the validity of a departmental regulation that specific statutory authority for it be discovered. It would be impracticable to set forth in the statutes all the rules for the conduct of the business of the great executive departments of the government, and Congress has wisely confined itself to marking general outlines and imposing general limitations, leaving the subordinate and supplemental details suggested by practical experience to be prescribed by the heads of the departments. A departmental regulation must not be inconsistent with the statutes, but it may be by way of execution or supplement.

There is another consideration which bears upon the limitation of the number of sample copies that may be mailed at the second-class pound rate. Section 14 of the act of March 3, 1879, excludes 'from the second-class rate “regular publications designed primarily-for advertising purposes, or for free circulation, or for circulation at nominal rates.” In the sense of ’the statute, “primarily” means “chiefly or principally.” The second-class pound rate of postage was intended for newspapers and periodicals published for the dissemination of information of a public character or devoted to literature, the sciences, arts, or some special industry and circulated for the most part among bona fide subscribers, and not for publications designed principally for advertising purposes or for free circulation or circulation at nominal rates. Obviously the number of copies distributed gratuitously has a .direct bearing upon the primary or chief design of the publication, whether really for subscribers at a substantial or compensatory price, or, on the other hand, at a nominal price and for advertising purposes.

It is also contended that, though a general postal regulation has been prescribed making an excess of sample copies evidence that the publication is primarily designed for advertising, etc., there is none authorizing the imposition of a higher postage rate on such excess while the entry as second-classs matter remains in force, unrevoked. We think, however, the authority denied by complainant is deducible from sections 436 and 456 of the Postal Laws and Regulations of 1902. See, also, section 338, Postal Guide Dec. 1, 1905, p. 1041, and Circular 25, at page 1045.

Our attention is directed to various amendments of the regulations affecting mail matter of the second class promulgated December 4, 1907, and effective January 1, 1908; the latter date being subsequent to the entry finally accorded complainant’s publication. These amendments are not directed specially at complainant, but affect all publications of that class in the country, and it would be foreign to our province to attempt a general judicial examination of them to define for the future the status of complainant’s magazine and its rights. The courts do not sit in general review of the actions of the executive departments, but await the occurrence of some concrete controversy and its presentation according to the settled rules of pleading and practice.

During the existence of the controversy, complainant paid under protest $20,650 for postage in excess of the amount calculated at the second-class pound rate, and also gave bonds for the payment of other sums. It is now contended that this suit should proceed for the recovery of the excess payments from the defendants and for the disposition of the bonds that were given. As already stated, the defendants were respectively the postmaster and assistant postmaster at St. Louis, Mo. The acts of Congress make it the duty of a postmaster to deposit all postage receipts at his office in the Treasury of the United States and a neglect to do so an offense. Rev. St. §§ 407, 4051, 4053, 4054 (U. S. Comp. St. 1901, pp. 228, 2754, 2755). There are some qualifications of this, but they do not affect the point presently to be mentioned. Act March 3, 1905, c. 1480, § 2, 33 Stat. 1091 (U. S. Comp. St. Supp. 1909, p. 102⅛), provides that whenever “it is shown to the satisfaction of the Postmaster General” that postage has been collected in excess of the lawful rate, “he may in his discretion” authorize the postmaster to refund the amount out of postal receipts in his hands. It would be an interesting question whether the doctrine of Cary v. Curtis, 3 How. 236, 11 L. Ed. 576, applies, and an action would lie against the defendants under the circumstances shown in the record. See, also, Curtis’ Adm’r v. Fiedler, 67 U. S. 461, 17 L. Ed. 273; Collector v. Hubbard, 12 Wall. 1, 20 L. Ed. 272; Philadelphia v. Collector, 5 Wall. 720, 18 L. Ed. 614. It should be observed in this connection that Teal v. Felton, 12 How. 284, 13 L. Ed. 990, was an action in trover for wrongfully detaining a copy of a newspaper, not an action to recover postage claimed to be excessive, but which the law required the postmaster to deposit where it was no longer under his control. Again, the amounts claimed by complainant as excess payments are withheld according to the decision of the department as to the number of legitimate subscribers to complainant’s publication and the number of sample copies complainant was entitled to mail at the pound rate. The question suggests itself whether this decision of the department is one of fact or of mixed law and fact and, therefore, within Bates & Guild Co. v. Payne, 194 U. S. 106, 109, 24 Sup. Ct. 595, 597 (48 L. Ed. 894), where it was .said:

“The rule upon this subject may be'summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing.”

But these questions need not be determined. If complainant has a cause of action for the excess payments made under protest it is clearly a legal one; and adequate relief against the bonds given by complainant is obtainable by defense when action is brought on them by the government. There is nothing of an equitable character in the cause of action or the defense. True, when involved in a suit of which a court of equity has jurisdiction, matters of legal cognizance may be disposed of if ipcidental to- the equitable relief that is granted. But it appears here that at the instance of complainant the case it had in court assumed such a phase that no injunction or other equitable relief could be granted. It is as though complainant had amended its bill by withdrawing all averments calling for the interposition of a court of equity. Under such circumstances a court should not retain the case for purposes purely legal. In Mitchell v. Dowell, 105 U. S. 430, 26 L. Ed. 1142, the court said:

“The rule is that where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it turns out cannot, for defect of proof or other reason, be granted, the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice.”

See, also, Kramer v. Cohn, 119 U. S. 355, 7 Sup. Ct. 277, 30 L. Ed. 439; Lewis Pub. Co. v. Wyman (C. C.) 168 Fed. 756; Cumberland Building & Loan Ass’n v. Sparks (C. C.) 106 Fed. 101. There is a qualification of the rule in patent cases where complainant is entitled to an injunction when the suit is begun but the patent expires before final decree. It is held in such cases there may nevertheless be an accounting for damages and profits. Carnegie Steel Co. v. Colorado Fuel & Iron Co., 91 C. C. A. 229, 165 Fed. 195. But the general rule is as above stated.

It is suggested that ground of equity jurisdiction will be found in the necessity for an accounting as to an alleged excess of postage exacted by the government. Passing the question whether mere volume of items in the claim of a party and the difficulty of proving them makes a complexity or intricacy of accounts for cognizance in equity (United States v. Bitter Root Co., 200 U. S. 451, 26 Sup. Ct. 318, 50 L. Ed. 550), it is clear this suit was for an injunction, not for an accounting except as the latter, might be an incident to the awarding of' an injunction. There was no prayer for an accounting. The prayer for general relief means relief agreeable to the case made in the bill. Lewis Pub. Co. v. Wyman (C. C.) 168 Red. 756, which was a case involving another publication of complainant, is in point. In this connection, we note the statement in defendant’s brief that other cases are pending in which the complainant here is seeking to recover the postage paid under protest and also cases in which the government claims postage still due on excesssive mailings.

The dismissal of complainant’s bill should, however, have been without prejudice to its rights at law in respect of the excess payments of postage and the bonds.

The cause is remanded to the Circuit Court for a modification of the decree accordingly, and, as so modified, the' decree is affirmed.