The opinion of the court was delivered by: LEVET
This is a motion by the above-entitled plaintiff for a preliminary injunction to restrain the defendant Postmaster from enforcing Order No. 56150 of the Postmaster General, dated June 21, 1956, directing the said Postmaster to return to the senders all letters and other mail matter which arrive at the New York Post Office addressed to plaintiff upon the ground of violation of Title 39 U.S.C.A. § 259a.
In the basic action the plaintiff seeks to enjoin and restrain the Postmaster from similar action.
Complaint was made to the Post Office Department in reference to such alleged violation upon the ground that the plaintiff herein was mailing matter said to be 'obscene, lewd, lascivious, indecent, filthy, or vile.' Hearings were held before an examiner. Initial decision of the hearing examiner was made on February 9, 1956. The substance of this decision was as follows:
The enterprise known as Glanzman Studios was charged with violation of the statute above mentioned in obtaining and attempting to obtain remittances of money through the mails for photographs, color slides and motion pictures of an obscene, lewd and lascivious nature. It was further charged that Glanzman was giving information by mail as to where, how and from whom such material might be obtained. Various circulars bearing the name of Glanzman Studios were marked in evidence. There were also introduced various photographs, color slides and films, all of which have been submitted upon the hearing of this motion. The hearing examiner, in describing these photographs, color slides and films, stated:
'Each of these color slides, photographs and motion picture films depicts a posed nude or nearly nude young attractive, curvaceous, bosomy female model. In the nearly nude pictures made up of a few of the slides and the two motion pictures, the public area is hidden either by the subject wearing a very brief 'pantie' or a towel. In all the photographs and most of the slides the subject is nude but the posed position prevents the public area from being seen. However, in all these pictures the subject's breasts are fully exposed and in the still photographs and color slides the subject is shown in a provocative pose. In the movies there are numerous closeup views of various parts of the body including the breasts. Accordingly, I find that the purchased items in evidence when viewed by the normal average male would result in such viewer being erotically and lustfully stimulated and that they violate and offend the present and prevailing standards of decency, modesty and morals of the country.'
The examiner's report further concluded that the enterprise in question was designed and calculated to cater to the salacious tastes of the customers. The respondent, Glanzman Studios, the plaintiff herein, he stated, used two advertisements. With one of the advertisements a sample photograph of a provocatively posed nude attractive young woman was furnished. Emphasis was made in this circular of 'Nude Figure Studies' and 'Artistic Nude Studies.' The reader was further informed that for men like yourself' and it was further stated: 'I know I have exactly what you have been looking for and the sample photo I have sent you should convince you Without Any Doubt that my Nude Figure Photos, Color Slides and Movies are the 'real' thing.' Any reference to 'art' in the advertisements, the examiner stated, was a mere pretense. Furthermore, it was only after a customer makes a purchase that the purchaser on a re-order states to Glanzman that he is 'over 21 years of age and understand that I am not to use these Artistic Studies ordered, in part or any other form except For My Own Personal Educational Needs, And To Study Them In Order To Advance In The Art Of Photography.'
The examiner concluded that the pictures were obscene and that the respondent, Glanzman, was giving information through the mails as to where, how and from whom obscene material may be obtained, and an order was made to suppress the enterprise referred to. The matter was presented to the hearing examiner by William C. O'Brien, Assistant Solicitor, Fraud and Mailability Division, Post Office Department. The respondent, Glanzman, subsequently appealed to the Solicitor for the Post Office Department from the aforesaid initial decision of Edward Carlick, Hearing Examiner, made and entered on February 9, 1956. The appeal was heard before Abe McGregor Goff, Solicitor for the Post Office Department, who sustained the examiner's initial decision and dismissed the respondent's appeal.
Pursuant to Order No. 56150, all mail addressed to plaintiff Glanzman was to be returned to the sender thereof with the words 'Unlawful: Mail to this address returned by order of the Postmaster General' plainly written or stamped thereon. Said Order was signed by the Solicitor for the Post Office Department by direction of the Postmaster General.
Two arguments are raised by the plaintiff Glanzman upon this motion for the granting of a preliminary injunction against the Postmaster of the City of New York:
(1) That the administrative proceedings were invalid because of illegal delegation or sub-delegation of powers and lack of proper separation of judicial and prosecutive functions in the administrative forum;
(2) That the determination of the Postmaster General is invalid and void due to the failure of the organic statute authorizing the administrative proceeding, 39 U.S.C.A. § 259a, and of the administrative authority itself to furnish an adequate standard for determining whether the mailed matter is 'obscene, lewd, lascivious, indecent, filthy or vile.'
As to the question of allegedly invalid delegation or subdelegation of powers and lack of proper separation of judicial and prosecutive functions in the administrative forum, there has been no unconstitutional or illegal assumption or usurpation of authority by the Solicitor for the Post Office Department. The Postmaster General has been authorized to delegate to his subordinates certain powers, functions and duties conferred upon him by statute, 5 U.S.C.A. § 369, upon the authority of Section 1(b) of Reorganization Plan No. 3 of 1949, 63 Stat. 1066:
'The Postmaster General is hereby authorized to delegate to any officer, employee or agency of the Post Office Department designated by him such of his functions as he deems appropriate.' 5 U.S.C.A. § 369 note.
In accordance with this authorization, it appears that the Postmaster has delegated to the Solicitor in his Order No. 55628, dated May 17, 1954, the powers, duties and functions reposing in the ...