Friendly and Hays, Circuit Judges, and Jameson, District Judge.*fn*
Appellants, The Rockville Reminder, Incorporated, and three individuals representing a class of rural mailbox owners, brought this action against the appellees, The United States Postal Service and three local postmasters, seeking declaratory and injunctive relief to permit the installation of metal hook devices on rural mailboxes for private delivery of "The Rockville Reminder", an advertising journal. The district court granted summary judgment of dismissal, holding that the device was proscribed by postal regulations.*fn1 We agree and affirm.
The Rockville Reminder is primarily an advertising circular, but contains a small amount of local and community news. It is published weekly and delivered free to rural residents. The metal device consists of a hook approximately two inches long, fastened to the outside lower flange or lip of a rural mailbox with a sheet metal screw, which does not penetrate the actual mailbox receptacle. The Reminder is delivered in a plastic bag, and the hook is used to puncture and hold the bag. Delivery may be made from a car.*fn2
Appellant Reminder installed 4,736 of the hooks on rural mailboxes, with the express consent of approximately 1,000 owners of the boxes, and a consent by silence and use of the remainder, except for seven box owners who expressly denied permission to install the hooks.*fn3
On April 10, 1972 the Postmaster at Vernon, Connecticut notified appellant Reminder that the regional counsel of the Postal Service "has ruled that the use of hooks attached to rural mailboxes is contrary to existing Postal regulations", and gave notice that mailable material on the hooks would be retrieved for postage. Thereafter Reminder discontinued the use of the hooks and paid postage on its delivery. This action was commenced on June 15, 1972.
Appellants contend that (1) there is no Postal Service regulation proscribing their "intended course of conduct"; and (2) the "attempted regulation" of the conduct is unreasonable and violates appellants' rights under the First, Fifth, and Ninth Amendments to the Constitution of the United States.
Article 1, Section 8, Clause 7 of the Constitution of the United States grants to Congress the power to establish a postal system. In turn Congress has prescribed the "general powers" of the Postal Service, including the power "to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives [of title 39]." 39 U.S.C. § 401(2). The Postal Service is charged with the responsibility "to maintain an efficient system of collection, sorting, and delivery of the mail nationwide." 39 U.S.C. § 403(b)(1).
Regulations have been adopted by the Postal Service pursuant to 39 U.S.C. § 401. 39 C.F.R. § 151.1 (1972) reads:
"Private mail receptacles.
"(a) Designation as authorized depository. Every letterbox or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, star route, or other mail route is designated an authorized depository for mail within the meaning of 18 U.S.C. sections 1702, 1705, and 1708.
"(b) Use for mail only. Receptacles described in § 151.1(a) shall be used exclusively for mail except as provided in § 156.5(h). Any mailable matter such as circulars, statements of accounts, sale bills, or other similar pieces deposited in such receptacles must bear postage at the applicable rate and a proper address."
39 C.F.R. § 156.5(h) (1972) provides:
"(h) Unstamped newspapers. Rural boxes are to be used for mail only, except that publishers of newspapers regularly mailed as second-class mail may, on Sundays and national holidays only, place copies of the Sunday or holiday issues in the rural and star route boxes of subscribers, with the understanding that copies will be ...