UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 13, 1978.
UNITED STATES POSTAL SERVICE, PLAINTIFF-APPELLEE,
PATRICIA H. BRENNAN AND J. PAUL BRENNAN D/B/A P. H. BRENNAN HAND DELIVERY, DEFENDANTS-APPELLANTS
Appeal from a summary judgment entered in the United States District Court for the Western District of New York, Hon. Harold P. Burke, Judge, upholding the constitutionality of the federal postal monopoly.
Friendly, Mulligan and Meskill, Circuit Judges.
MULLIGAN, Circuit Judge:
The facts underlying this litigation are undisputed. Patricia H. Brennan and J. Paul Brennan, doing business under the name of P. H. Brennan Hand Delivery Service (the Brennans), have conducted since March, 1976 in downtown Rochester, New York, a service delivering for compensation letters and small to medium size parcels. They guarantee same day delivery in Rochester for all materials picked up from customers before twelve o'clock noon at a rate which is less than that charged by the United States Postal Service (USPS). On February 23, 1977 USPS brought a civil action in the United States District Court for the Western District of New York seeking permanent injunctive relief prohibiting the Brennans from continued violations of the Private Express Statutes which proscribe the private carriage and delivery of "letters."*fn1 On March 22, 1977 the Brennans filed an answer which in substance admitted the material facts alleged in the complaint but as a defense urged that the Private Express Statutes were unconstitutional. Cross motions for summary judgment were filed and on December 27, 1977, United States District Judge, Hon. Harold P. Burke, found that the defendants' contentions were without merit. He denied the defendants' motion for summary judgment and granted the government's motion for summary judgment. The Brennans appealed. On January 10, 1978 this court granted a stay of the district court's order and judgment until the argument of this appeal. At that argument on February 22, 1978 this court extended the stay until the determination of the appeal. The judgment of the district court is hereby affirmed and the stay in this matter is vacated.
Under the "Private Express Statutes", Congress has granted the United States a monopoly on the conveyance of "letters or packets" and has precluded competition by private express. National Ass'n of Letter Carriers v. Independent Postal System of America, 470 F.2d 265, 267 (10th Cir. 1972). Appellants' primary position is that the Constitution did not grant exclusive power to Congress to operate a postal system and that the Private Express Statutes are not "necessary and proper" to execute the constitutional power to establish post offices and post roads.
The Constitution does not expressly give Congress "the sole and exclusive right and power" to establish and regulate the carriage of mail as did the Articles of Confederation.*fn2 However, the postal power, like all other enumerated powers of Congress, "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L. Ed. 23 (1824) (Marshall, C.J.) (commence clause). Moreover, the Constitution grants Congress the power to enact all laws it deems necessary and proper to execute its power to establish post offices.*fn3 The congressional choice, as expressed in the Private Express Statutes, was to retain in the United States an exclusive and monopolistic authority over the delivery of letters. The question is whether that determination was "necessary and proper."
The scope of the necessary and proper clause was indelibly sketched in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819) where Chief Justice Marshall gave a broad interpretation to that clause in upholding congressional action under the commerce clause:
We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
4 Wheat. at 421 (footnote omitted).*fn4
There is nothing novel or unprecedented in the governmental monopoly.*fn5 While we need not demonstrate that today's mail service is the inevitable outgrowth of 4,000 years of postal history commencing in Egypt and Assyria, see C. Scheele, Neither Snow, Nor Rain . . . . The Story of the United States Mails 2-10 (1970), it has been noted that private industry could not have attempted to supply the postal requirements of a frontier nation. See W. Rich, The History of the United States Post Office to the Year 1829 at 91-110 (1924). Congress certainly could have determined that something less than a federal monopoly would allow the continuance of an effective postal system. However, the wisdom of the choice is not the question for the court; we may only pass on Congress' power to make it.*fn6
The constitutionality of the postal monopoly has been challenged rarely and never successfully.*fn7 Almost a century ago Boyd's City Dispatch employed some 50 carriers who made daily collections and deliveries of letters in the City of New York in competition with the United States Post Office. The proprietor of the private service sought a preliminary injunction to enjoin the Postmaster General from seizing the mail Boyd's City Dispatch was delivering. No attack was made on the constitutionality of the private express statute, U.S.Rev.Stat. § 3982. Rather, plaintiff sought to distinguish her business from those covered by the statute. The court in Blackham v. Gresham, 16 Fed. 609, 612 (C.C.S.D.N.Y. 1883), in an opinion denying the injunction, stated:
As pointed out by the attorney general of the United States in 1858, (9 Op. 161) "the business of carrying letters and other mail matter belongs exclusively to the government; and in cities and the large towns letter carriers are as much part of the system as the transportation of the mails from one office to another." If private agencies can be established, the income of the government may be so reduced that economy might demand a discontinuance of the system; and thus the business which it is the right and duty of the government to conduct for the interest of all, and on such terms that all may avail themselves of it with advantage, may be handed over to individuals or corporations who will conduct it with the sole view of making money, and who may find it for their profit to exclude localities or classes from the benefit of the service. (Emphasis supplied.)
The most recent opinion in point is United States v. Black, 569 F.2d 1111 (10th Cir.), cert. denied, 435 U.S. 944,, 98 S. Ct. 1525, 55 L. Ed. 2d 541, 46 U.S.L.W. 3601 (1978). In Black the defendants operated a private express conveying letters between the cities of Pittsburgh and Frontenac in the State of Kansas. The defendants admitted that they violated 18 U.S.C. § 1696 but in defense claimed that the statute was unconstitutional. The court held that the postal monopoly was constitutional because it was a valid exercise by Congress of the power granted it by Art. I, § 8. This case is indistinguishable from the present appeal.
We conclude that the postal power, in conjunction with the necessary and proper clause, as interpreted by Chief Justice Marshall in McCulloch, authorizes Congress to exercise its power to the utmost extent. The monopoly which Congress created is an appropriate and plainly adapted means of providing postal service beneficial to the citizenry at large. Consequently, the Private Express Statutes are constitutional.
Appellants' remaining constitutional arguments are even less persuasive. They rely upon the Tenth Amendment which provides:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
However, the postal power is a delegated power and, as we have found under the necessary and proper clause, in determining to occupy the field exclusively in the conveyance of letters, Congress was not exceeding its powers. As the Court stated in Case v. Bowles, 327 U.S. 92, 102, 90 L. Ed. 552, 66 S. Ct. 438 (1946):
Since the decision in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420, it has seldom if ever been doubted that Congress has power in order to attain a legitimate end -- that is, to accomplish the full purpose of a granted authority -- to use all appropriate means plainly adapted to that end, unless inconsistent with other parts of the Constitution. And we have said, that the Tenth Amendment "does not operate as a limitation upon the powers, express or implied, delegated to the national government." (Footnote omitted.)
Since we have decided the creation of a postal monopoly is a proper exercise of power, the Tenth Amendment argument adds nothing of substance to the constitutional issue here, particularly since no threat to state sovereignty is involved. See National League of Cities v. Usery, 426 U.S. 833, 842-43, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976); Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv.L.Rev. 1065, 1067 n.17 (1977).*fn8
Appellants further urge that by permitting the Postal Service to define letters or packets, see 39 U.S.C. § 401(2); 39 C.F.R. § 310.1, Congress has improperly delegated the legislative authority vested exclusively in it by Art. I, § 1 in violation of the separation of powers doctrine.*fn9 The legislature has prescribed the general powers of the Postal Service in 39 U.S.C. § 401, including the power "to adopt, amend and repeal such rules and regulations as it deems necessary" in order "to maintain an efficient system of collect[ing,] sorting, and delivering the mail" as called for in 39 U.S.C. § 403(b)(1). "Broad rule-making authority must be allowed a federal agency such as the postal service whose activities are national in scope and are geared to meet varied conditions and circumstances throughout the country." Rockville Reminder, Inc. v. United States Postal Service, 350 F. Supp. 590, 593 (D.Conn. 1972), aff'd, 480 F.2d 4 (2d Cir. 1973).
The only authorities cited by appellants for their argument on this point are A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L. Ed. 1570, 55 S. Ct. 837 (1935) and Panama Rfg. Co. v. Ryan, 293 U.S. 388, 79 L. Ed. 446, 55 S. Ct. 241 (1935). These were the "only two cases in all American history" which held congressional delegations to public authorities invalid. K. Davis, Administrative Law Text 26 (3d ed. 1972). "Both . . . . cases dealt with delegation of a power to make federal crimes of acts that never had been such before and to devise novel rules of law in a field in which there had been no settled law or custom. [Schechter] also involved delegation to private groups as well as to public authorities." They were so distinguished by Mr. Justice Jackson in Fahey v. Mallonee, 332 U.S. 245, 249, 91 L. Ed. 2030, 67 S. Ct. 1552 (1947). That distinction is valid here.
In any event, as Mr. Justice Marshall commented in his dissent in National Cable Television Ass'n v. United States, 415 U.S. 336, 352-53, 39 L. Ed. 2d 370, 94 S. Ct. 1146 (1974):
The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has been virtually abandoned by the Court for all practical purposes, at least in the absence of a delegation creating "the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of [constitutionally] protected freedoms" . . . . (Footnote and citation omitted.)
There is no palpable abuse here and no congressional abdication. On the contrary, the authority and necessity for USPS to define "letters" in view of the myriad methods and modes of communication which presently exist is obvious. Thus, the delegation is constitutional.
Finally, the appellants also claim that since the postal monopoly only encompasses letter mail and permits private competition in the delivery of non-letter mail (e.g., fourth class mail parcels) there is a violation of their Fifth Amendment Equal Protection rights.*fn10 No authority at all is cited that supports this proposition. As the Supreme Court has often stated, "A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" Johnson v. Robison, 415 U.S. 361, 374-75, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974) (citation omitted; emphasis). But here the classification is not directed against persons; rather it is based upon types of mail. The Brennans are in no different posture than any citizen who decides to carry letters in violation of the statute. Obviously, the distinction between types of mail is not invidious. No fundamental rights are involved. The reason for the classification is obvious and rational. The carriage of letters in selected areas is highly profitable compared to the carriage of bulky materials. This permits a subsidy of sorts to those services which inevitably lose money. The national system requires that distinctions based upon the character of the business be made. Blackham v. Gresham, supra, 16 Fed. at 612. It is the task of Congress and the agency to make the classification, not the courts. See McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955).
We conclude that the appellants have utterly failed to establish the unconstitutionality of the Private Express Statutes on any basis. While American citizens may properly complain about the cost or inefficiency of mail service, this hardly raises a matter of constitutional proportions. It is a matter for the Congress and not the courts.*fn11
Whatever judicial authority we have been referred to or have unearthed supports the proposition that there is no constitutional infirmity in the federal monopoly over the conveyance of letters. The appellants are keenly aware of the absence of any decision suggesting that the Private Express Statutes are unconstitutional. They suggest that on original analysis this court, "attempt the grave and delicate responsibility of pronouncing these statutes void." Blackham v. Gresham, supra, 16 Fed. at 612.*fn12 However, as Mr. Justice Frankfurter aptly commented in Romero v. International Terminal Operating Co., 358 U.S. 354, 370-71, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1959):
The history of archeology is replete with the unearthing of riches buried for centuries. Our legal history does not, however, offer a single archeological discovery of new, revolutionary meaning in reading an old . . . . enactment. The presumption is powerful that such a far-reaching, dislocating construction as petitioner would now have us find . . . . was not uncovered by judges, lawyers or scholars for [almost two hundred] years because it is not there.
Judgment affirmed and the stay vacated.