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October 15, 1951


The opinion of the court was delivered by: BYERS

If the Court is empowered to reach a decision on the merits of this controversy, it will determine whether the plaintiffs are correct in their contention that a card which they seek to send through the U.S. Mails cannot be lawfully excluded therefrom on the theory that the scheme therein described is a lottery.

In substance it is designated as a treasure hunt, and involves the following steps:

(a) Each recipient of a card detaches therefrom a removable coupon bearing the same printed number as does the card itself. The sender retains the coupon, and (b) after mailing the card to the Chamber of Commerce, he (c) looks into the shop windows of the storekeepers who participate in the plan. (d) If he sees his number attached to an article displayed in one of those windows, he enters the store, presents his coupon, and receives that article.

 Manifestly this is a joint effort to promote window shopping, which hitherto has not been deemed even faintly illegal or immoral.

 The defendant has moved to dismiss the amended complaint, upon the only important ground that 'the scheme is a lottery and comes within Section 36.6 of the Postal Laws and Regulations (1948 ed.)'.

 It is also urged that the Courts will not compel the performance of a discretionary act- meaning the exclusion from the mails of plaintiffs' literature. The plaintiffs have countered with a motion for an order enjoining defendant from refusing the privilege of the mails to plaintiffs, alleging irreparable injury.

 The complaint cites Title 28 U.S.C. § 1339 ('The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service.') Also Title 39 U.S.C.A. § 259, namely, R.S. Sec. 3929, as amended.

 It is the postal fraud statute and is too long to quote but may be paraphrased as the law which confers upon the Postmaster General the power to 'instruct postmasters at any post office * * * (such as the one in Garden City) to return all such mail matter' to the sender, as shall indicate that the latter is 'engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any * * * personal property by lot, chance, or drawing of any kind * * *'.

 The basis for the action of the Postmaster General found in that statute is 'evidence satisfactory to him'.

 Jurisdiction on the part of this Court would seem to be apparent, from the statute first quoted.

 In the absence of an answer raising issues, the allegations of the amended complaint are taken to be true for present purposes, and it thus appears that the Solicitor has written a letter dated August 17, 1951, following a conference (Doyle aff.) in his office; there has been no formal hearing, and no order has been issued in the name of the Postmaster General. The gist of the letter is that, because the holders of coupons do the very thing that the plan proposes, i.d., visit the stores to look in the windows, they are deemed to provide the consideration which is the necessary element of a lottery. The language is: 'The amendment offered (the disposition of unclaimed prizes after publication of an appropriate newspaper advertisement) does not eliminate the conditions which were contained in the original advertisement of the 'Treasure Hunt' including the requirement that the participant visit the numerous stores in Garden City between December 2 and December 15 in order to discover whether such participant is the holder of the 'lucky number on the prizes displayed in the windows'. This element of consideration, in addition to the elements of prize and chance involved, brings the enterprise within the prohibitions of the section cited (Sec. 36.6 and 36.9 of the Postal Rules and Regulations of 1948, 18 U.S.C. § 1302) insofar as the use of the mails in connection with the promotion of the scheme is concerned * * *.'

 The foregoing is to be read as supplementing an earlier communication dated December 12, 1950, from the same office, having to do with the same plan as carried out in that month, as set forth in paragraph 14 of the complaint, thus: 'The winning of a prize in this plan depends, of course, upon chance. The element of consideration is present in the substantial amount of time and effort involved in examining (sic) the various prizes to ascertain whether one holds a winning ticket. The plan is accordingly in conflict with Section 36.6, P.L.&R., 1948, and all matter relating thereto, including the circular in question, is non-mailable.'

 The question of whether looking in a window is 'examining' anything, need not be discussed.

 Seemingly the officials were so belatedly alerted in December, 1950, that the plan was not devitalized by the ...

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