The admission of a magazine to second-class mail privileges on
the petition of the owners made pending a suit to enjoin the
enforcement of an order excluding the magazine from such privileges
renders the contentions of plaintiff moot, and it is no longer in a
position to ask for an injunction.
When the question involved in a bill becomes moot, the court
should not retain the bill in order to determine plaintiff's
liability on a bond, it not appearing in this case that plaintiff
is in any danger from an action to enforce the bond.
A suit, which has become moot, will not be retained in order to
determine appellant's liability on bonds when there is nothing in
the record on which the rights of the parties may be
adjudicated.
A suit which has become moot will not be retained in order to
secure an accounting for amounts paid after its commencement when
it appears on the face of the bill that plaintiff, in order to
recover far larger amounts paid prior to the commencement of the
suit, must bring an action at law in which all amounts paid could
be included.
An order made by the Postmaster General admitting a magazine to
second-class mail privileges on certain conditions, made pending a
suit to enjoin an order excluding the magazine, is a matter of
administration, and affords no ground for relief in the suit for
injunction against enforcing the order of exclusion, or for
retaining that suit after it has become moot by reason of such
order.
182 F. 13 affirmed.
The facts are stated in the opinion.
Page 228 U. S. 611
MR. JUSTICE PITNEY delivered the opinion of the Court.
This action was commenced by the appellant in the month of
March, 1907, in a state court in Missouri, and was removed, on the
application of the defendants, now respondents, into the circuit
court of the United States. The plaintiff's petition averred that
it was and for more than three years last past had been a
corporation organized under the laws of South Dakota, and doing
business in the State of Missouri, operating a publishing plant at
Winner Station, a substation of the St. Louis post office; that the
defendants were, respectively, postmaster and assistant postmaster
of St. Louis; that one of the publications issued, printed, and
circulated by the plaintiff was called the "Woman's Magazine," a
monthly publication issued periodically to hundreds of thousands of
subscribers, and admitted many years before by the Post Office
Department as second-class mail matter at the St. Louis post
office; that differences had arisen between the plaintiff and the
defendants and the Post Office Department respecting the right of
the plaintiff to transmit the Woman's Magazine through the mails at
the pound rate; that defendants were threatening to deprive the
plaintiff of its right to use and enjoy the second-class mail
privilege without a hearing upon the question whether it should be
annulled or suspended; that its legitimate list of subscribers
exceeded in number 840,000, and plaintiff was entitled to mail
under the second-class privilege approximately twice that number,
and that such threatened suspension would work irreparable damage
and loss to the plaintiff, wherefore plaintiff prayed for an
injunction to restrain the defendants from detaining any copies of
the magazine in transmission through the mail (within the number of
1,600,000 copies), that the court would ascertain and adjudge by
its decree the amount of the legitimate subscription list of the
magazine as of March 1, 1907, and
Page 228 U. S. 612
for prior months since September, 1905, to the end that the
controversy raised by the defendants might be terminated,
"and that said defendants, as postmaster and assistant, be
perpetually enjoined from interfering with the full use and
enjoyment of said second-class privilege by plaintiff according to
the finding and decree of this Court, ascertaining the proper and
just extent and limits thereof, as herein prayed."
There was also a prayer for a temporary injunction and for other
and further relief. Upon submission of the bill of complaint and
verifying affidavit, the circuit court granted a temporary
restraining order and an order to show cause why an injunction
pendente lite should not be allowed. Upon the hearing of
this order, an injunction was refused on the ground that no permit
had ever been granted allowing the Woman's Magazine the
second-class privilege except a temporary permit issued August 21,
1902, which, by its terms, was to continue "until the Post Office
Department shall determine whether it is admissible as second-class
matter;" that the only determination of the application was that
made by the Post Office Department in March, 1907, refusing the
privilege; that the law did not require the Department to grant a
hearing upon the question of admitting the magazine to the
second-class privilege, and that there was no provision of law for
reviewing the action of the Postmaster General in the matter.
The action proceeded, and while it was pending, and on September
24, 1907, a new application was made by the appellant to the Post
Office Department for the entry of the Woman's Magazine as
second-class matter, and this application was granted in December,
to take effect as of September 24th. Defendants filed a
supplemental plea setting up this order, and that, by virtue of it,
the publication in question was being received and carried by the
Post Office Department at the second-class rate. The appellant
replied, and the action proceeded to final hearing,
Page 228 U. S. 613
resulting in the dismissal of the bill. The complainant appealed
to the circuit court of appeals, where the decree was affirmed, a
majority of the court holding that the questions upon which the
appellant's right to equitable relief depended had become moot
questions, and that its claim for reimbursement for certain
payments made
pendente lite for postage in excess of the
amount calculated at the second-class pound rate was the proper
subject matter of a suit at law, leave to bring which was reserved
in the decree. 182 F. 13.
It appears that the "Woman's Magazine" was, except for a change
of name, identical with a previous publication called the "Winner
Magazine," to which the privilege of the second-class rate was
accorded by the Post Office Department in the year 1899. The
application for change of name was made in the year 1902. By Postal
Laws and Regulations (1902), § 443, in case of a change of name of
a publication already entered as second-class matter, publishers
are required to apply for reentry the same as if the publication
were a new one. Such an application was made in the present case,
and a temporary permit was issued by the defendant postmaster at
St. Louis, and confirmed by the Post Office Department, to continue
"pending consideration of the application for its reentry as
second-class matter upon change of name from
The Winner.'" This
was in accordance with Postal Laws and Regulations, § 441. Little
or nothing seems to have been done respecting this application
until March, 1905, when an investigation was commenced, as the
result of which, on June 5th, the publishers were required to show
cause why the authorization for the admission of the Woman's
Magazine to the second class of mail matter should not be revoked
upon the grounds,
"first, it is primarily designed for advertising purposes;
second, it is primarily designed to advertise the other businesses
in which the stockholders and officers of the publishing company,
and
Page 228 U. S. 614
especially E. G. Lewis, are interested; third, it is primarily
designed for free circulation, or for circulation at nominal
rates."
Under date of April 12, 1906, defendant Wyman notified the
appellant that,
"from facts obtained which, in my judgment, justify me in the
conclusion that the legitimate subscriptions to the Woman's
Magazine are not to exceed 539,901, and that you are entitled to
transmit through the mails at the pound rate not to exceed
1,079,802 copies of that publication, including sample copies, you
are hereby notified that the transient second-class postage at the
rate of one cent for each four ounces or fraction thereof must be
prepaid by stamps affixed on all copies of said publication in
excess of your legitimate mailings, as above indicated, hereafter
presented by your company."
The restriction of the second-class privilege to a number of
copies not more than double the legitimate list of subscribers was
based upon §§ 436 and 456 of the Postal Laws and Regulations. This
notice served to renew the controversy between the appellant and
the Post Office Department -- a controversy that continued until
March 4, 1907, when the Postmaster General made an order that in
effect limited the second-class privilege of the Woman's Magazine
to 539,901 copies for legitimate subscribers, and a like number in
addition for sample copies, sustained the action of the postmaster
at St. Louis, based upon that finding, and required the postmaster
to remit to the Department the excess postage that had been
collected by him, and to demand from the publisher the balance due
the government at the transient second-class rate upon all excess
copies of the publication mailed on and after October 1, 1905. At
the same time, the Postmaster General denied "the pending
application submitted August 22, 1902, for entry of this
publication as second-class matter" upon the following ground:
"Upon a hearing granted the publisher April 30th and May 1st,
1906, and upon a careful and thorough investigation of
Page 228 U. S. 615
all of the evidence by the Department, I find that the
publication does not have a legitimate list of subscribers; that it
is designed and published primarily for advertising purposes, and
that it is being circulated at a nominal rate, contrary to the law
and the regulations of the Department."
It was and is contended by the appellant that this order,
instead of being the denial of an application for admission to the
second-class privilege, was in effect the suspension or annulment
of an existing privilege; that this could not be done without a
bearing because of the provisions of the Act of March 3, 1901, 31
Stat. 1107, c. 851, and that there had not been any proper
hearing.
One of the matters in contention between the parties at the time
of the inception of the action was the actual extent of the
bona fide circulation of the magazine, the appellant
averring that it had a "legitimate list of subscribers" exceeding
in number 840,000 and that, under the established practice,
allowing as many sample copies in addition, it was entitled to the
pound rate upon at least 1,600,000 copies of each issue. It was
this that gave rise to the prayer of the original petition for an
ascertainment of the amount of the legitimate subscription list,
and for an injunction to restrain the defendants from detaining any
copies within the number of 1,600,000.
We agree, however, with the court of appeals that the new
application made pending the suit, and the order of the Post Office
Department thereon, admitting the magazine to the second-class
privilege as of September 24, 1907, which privilege the appellant
has ever since enjoyed, render the above contentions moot
questions, inasmuch as the appellant is no longer in a position to
ask for an injunction.
It is contended that the bill ought to have been retained, and
other equitable relief accorded to the appellant thereunder,
principally for three reasons:
Page 228 U. S. 616
First that, upon the granting of the temporary restraining order
in March, 1907, the appellant, pursuant to the order of the court,
gave a bond to defendants in the penal sum of $10,000 conditioned
that if, upon a later hearing or final hearing, it should be
determined that this restraining order was improperly issued, the
appellant would pay to the postmaster or to the government all sums
of money lost by the Post Office Department by reason of the
granting of the restraining order. But, so far as appears, no
action has been taken or threatened looking to the enforcement of
this bond, and so it would be improper to retain the main cause,
after the primary object to be accomplished by it has been
accomplished by voluntary action of the parties
pendente
lite, in order to determine whether any and what relief should
be accorded respecting the bond. Besides, it was not determined at
any hearing in the suit that the restraining order was improperly
issued. On the contrary, the bill was dismissed because of a
subsequent change in the situation. There is nothing to show that
appellant is in any danger from an action to enforce this bond.
Some mention is made of indemnity bonds demanded of appellant by
the defendant postmaster and given by the appellant and sureties as
security for excess postage. There is nothing before us, however,
to show the facts respecting these bonds, or any reason for
retaining the suit in order that the rights of the parties under
them may be adjudicated.
Secondly, it is said that, because the defendant postmaster
insisted that the Woman's Magazine did not have the number of
subscribers claimed by the appellant, he demanded during the period
from April, 1906, to May, 1907, payments of alleged excess postage
as a condition to mailing the copies that were being sent out
monthly, and that, because of that demand appellant made monthly
payments under protest aggregating $20,650. Reference
Page 228 U. S. 617
is made to the prayer of the bill
"that this Court may ascertain and adjudge by its decree herein
the amount of the legitimate subscription list of said Woman's
Magazine, as of March 1, 1907, and for prior months since
September, 1905, to the end that there may be a close of the
unseemly controversy raised by said defendants,"
etc. But this prayer was manifestly incidental to the main
prayer for an injunction. There is nothing in the facts that would
justify the retention of the bill in order to secure an accounting
respecting the transactions that antedated the commencement of the
action. Of the $20,650 in question, all but $3,500 appear to have
been paid prior to the inception of the suit. This smaller amount
only would, in any view, be within the fair scope of inquiry under
the bill, and it would still be necessary for appellant to resort
to an action at law for the previous payments. No sufficient reason
is shown for retaining the bill in order to determine this
controversy in the court of equity.
Thirdly, the order made
pendente lite by the Postmaster
General admitting the magazine to the second-class privilege as of
September 24, 1907, was accompanied with an order that ascertained
the legitimate list of subscribers, for the purpose of adjusting
the postage that had been paid at the full rate for the October
issue at the number of 343,341, and authorized the postmaster to
accept pound-rate postage on mailings as to subscribers of that
number of copies, and an equal number of sample copies, and
required him to charge postage at the transient second-class rated
cent for each four ounces or fraction thereof upon the mailings in
excess of the number mentioned. Also it is contended that the
Department refused to allow the appellant to send copies to those
whose subscriptions expired during a considerable part of the
interval of suspension. But these are matters of administration,
for the orders in question appear to have been made by the
Postmaster General with respect to the new application
Page 228 U. S. 618
for admission to the second-class privilege that was made
pending the suit, and granted, as already mentioned. They afford no
proper ground for any kind of relief in the present action.
Decree affirmed.