The opinion of the court was delivered by: WEINFELD
These are cross motions for summary judgment in an action seeking to enjoin enforcement of a fraud order issued by the Postmaster General which directed that mail addressed to the plaintiff or to various companies which he conducted under trade names be returned to the senders marked 'Fraudulent'; and that postal money orders payable to their order be returned to the remitters. Both parties agree that there are no triable issues of fact and that either one or the other is entitled to summary judgment as a matter of law.
The issue posited by these motions requires a review of the administrative record upon which the order was entered. The proceeding before the Post Office Department was instituted upon a complaint which charged that the plaintiff was conducting a fraudulent scheme for obtaining money through the mails in violation of §§ 259 and 732, 39 U.S.C.A. Following a hearing at which plaintiff was represented by counsel, the basic charges set forth in the complaint were sustained by the Hearing Examiner. Plaintiff filed an administrative appeal but this was unsuccessful and the fraud order was issued.
The complaint upon which the proceeding before the Post Office Department was initiated alleged: that the plaintiff through advertisements in various periodicals induced readers to remit money through the mail for certain 'magical or necromantic articles' which included a variety of so-called good luck items and perfumes, by means of false and fraudulent pretenses, representations and promises; that to persons remitting the sum of money stated in the advertisement in the periodical there were sent circulars and brochures calculated and intended to induce the recipient to make further remittances through the mails to the plaintiff; that the statements contained in the advertisements appearing in the periodicals, as well as those contained in the circulars and brochures were false and fraudulent; that they materially misrepresented the true nature of the matter in that the articles, the good luck charms and perfumes, did not provide the means to accomplish the results promised, were of no value therefore and appealed only to the ignorant, superstitious and credulous, who by reason of the representations might rely upon the worthless articles furnished them to accomplish the said results.
The plaintiff denied the charges of fraudulent misrepresentation in the sale of the products.
The Post Office inspector who investigated the case was the sole witness for the Government at the hearing. As a result of test correspondence employed by him, it appeared that plaintiff under one or more trade names inserted advertisements for good luck items or perfumes in various issues of publications including Pittsburgh Courier, Revealing Romances, Romance Confessions, Frolic, Movie Spotlight, Life Romances, Southern Farm and Home, Baltimore Afro-American, Washington Afro-American, New Jersey Afro-American, Richmond Afro-American, Philadelphia Afro-American, Hagerstown Town and Country Almanack, Secrets, and The Tri-State Defender.
A person remitting the amount specified in a particular advertisement, received through the mails the item ordered, either the good luck charm or the perfume; the remitter also received from the plaintiff leaflets, circulars and brochures which suggested further remittances for a variety of approximately 20 products, either good luck charms or perfume. To consider the detailed advertisement with respect to each specific item would unduly extend this opinion. A sampling of items of each class will suffice for the purposes of this motion, although the representation as charged by the postal authorities will be summarized.
A typical advertisement which appeared in the Pittsburgh Courier and other papers of a Holy Miracle Cross follows:
'It May Work Miracles For You -- Now * * * If life passes you by, if you can't overcome Evil Spirits, if you have Bad Luck, if you Fail in love, feel Let Down and people are Against you, Then you need this 24K Gold Plated Holy Miracle Cross, encrusted with beautiful Simulated Diamonds and Fully Enclosed in Glass. Can be used in the secrecy of your home. It is said that people swear by it and Bless the day that they bought it. Don't be afraid to let it work for you. 100% guaranteed or your money back in 7 days. Only $ 2.00 money with order or $ 2.50 C.O.D. Get Started on the right road today * * * Twinz, 125 Broad Street, N.Y. 4, N.Y. . . .. Free -- With Every Order, A Vial Of Holy Miracle Anointing Liquid Full Directions.'
A purchaser received not only the 'Holy Miracle Cross' but in addition, as already noted, circulars advertising good luck charms and perfumes which in general paralleled the periodical advertisements. Included in the mailed matter, for example, was a circular for 'An extra supply of Holy Miracle Anointing Liquid' to be used 'when the Holy Miracle Cross is not near you.' In this instance the charge is that the plaintiff falsely and fraudulently represented to the public in substance: (a) That 'if life passes you by, if you can't overcome Evil Spirits, if you have Bad Luck, if you Fail in love, feel Let Down and people are Against you, Then you need this 24K Gold Plated Holy Miracle Cross', that is to say, said cross will enable a remitter to 'overcome evil spirits' or 'bad luck', or succeed in their love life; (b) That the 'Holy Miracle Anointing Liquid' may 'be used when the Holy Miracle Cross is not near you,' that is to say, said liquid will enable a remitter to 'overcome evil spirits' or 'bad luck.'
Another item advertised was 'Fast Luck Brand Incense' as follows:
'Numbers come out in the ashes. Amazing. Amusing. Astounding. Fast Luck brand Incense This is the best grade Incense obtainable anywhere for this purpose in U S A. Only Lucky John offers such high quality for only $ 5.00 a Full Pound. Usually sells for up to $ 15.00. Remember only $ 5.00 Full Pound cash or C O D plus postage.'
'Incense Burner Free if you order right away we will send you absolutely Free a beautiful Incense Burner recently imported from mystic Japan. All guaranteed or money back. Order No. P 31.'
Here it was charged that the advertisement falsely represented 'That Fast Luck Brand Incense' will reveal 'Numbers' which will enable remitters to have 'fast luck'.
In the instance of other good luck items, which need not be set forth at length here, statements in the text of the advertisement were alleged to constitute the false representations as follows:
That 'if you feel Let Down * * * Hemmed In by Bad Luck that sticks to you * * * think that people are Bedeviling You * * * feel the need of a Helping Hand against the Forces of Evil, then you need Genuine Rhodium Plated Holy Miracle Cross', that is to say, said cross will work 'Miracles' by favorably resolving such conditions for a remitter.
That 'Good Luck' roots are 'carried for Good Luck in Love, Games of Chance, Money Affairs and to ward off alleged Bad Luck and evil things called jinxes, crossed conditions, etc.', that is to say, said roots will accomplish the same results for a remitter.
That the 'Magic Formula for Successful Prayer' tells of 'Health and Success through prayer * * * for obtaining work through prayer * * * for money through prayer, for influencing others through prayer', that is to say, said 'formula' will enable a remitter to be healthier and successful, to find work, to obtain money or to influence other people.
That 'Lodestones' are carried for 'the things a person wants -- money, Love, Luck' or to 'drive away * * * Evil', that is to say, said lodestones will enable a remitter to accomplish the same results.
That the book 'The Secret of Numbers Revealed' tells 'how numbers govern Love, Success, Money, Luck', that is to say, said book will enable remitters to ...