The 13th and 30th sections of the Act of Congress, passed in
1825, 4 Stat. 105-111, forbid a writing or memorandum from being
written on a newspaper, or other printed paper, pamphlet, or
magazine, and transmitted by mail.
The Postmaster General directed that if the wrappers of
newspapers, pamphlets, or magazines, should be found to contain any
manuscript or memorandum of any kind, either written or stamped or
marks or signs made in any way by which information shall be asked
or communicated, it should be charged with letter postage.
The part of the order relating to marks or signs was not
justified by the law.
Hence, where a postmaster refused to deliver a newspaper upon
which there was an "initial" unless the person to whom it was
addressed would pay letter postage, he was properly held liable in
an action for trover. It was not a case calling for discretion in
the discharge of his duties. The law, and not the instructions of a
department, furnishes the guide to officers.
The state court had jurisdiction to try the case. State courts
had jurisdiction over all cases of trover, and the Constitution of
the United States did not abrogate their jurisdiction in such cases
as the present.
Page 53 U. S. 285
Teal, the plaintiff in error, was postmaster in Syracuse, in the
State of New York, and the case arose in the following manner:
The 13th section of the Act of 1825, 4 Stat. 105, provided as
follows:
"Any memorandum which shall be written on a newspaper or other
printed paper, pamphlet, or magazine and transmitted by mail shall
be by mail shall be charged with letter postage."
And the 30th section of the same Act, 4 Stat. 111, provided as
follows:
"If any person shall enclose or conceal a letter or other thing
or any memorandum in writing in a newspaper, pamphlet, or magazine
or in any package of newspapers &c. or make any writing or
memorandum thereon which he shall have delivered into any post
office or to any person for that purpose in order that the same may
be carried by post free of letter postage, he shall forfeit the sum
of five dollars for every such offense, and the letter, newspaper,
package, memorandum, or other thing shall not be delivered to the
person to whom it is directed until the amount of single letter
postage is paid for each article of which the package is
composed."
The act of 1845, sections 1, 2, and 16, fixes the rates of
postage upon letters and newspapers and defines a newspaper to
be
"a printed publication issued in numbers, consisting of not more
than two sheets, and published at short intervals of not more than
a month, conveying intelligence of passing events, and the
bona
fide extras and supplements of any such publication."
On 4 December, 1846, the Postmaster General issued the following
circular:
"
To Postmasters:"
"I am directed by the Postmaster General to call your special
attention to the multiplied and increasing attempts to violate the
laws and defraud the revenue by writing on the wrappers, margin, or
other portion of newspapers, pamphlets, and magazines, sent by
mail."
"The cheap postage system has removed every reasonable excuse
for violating or evading the law, and too much vigilance cannot be
exercised by postmasters to detect and punish the offenders, and
public sentiment, when well informed, will not fail to sustain you
in the faithful discharge of this duty, which is as imperative upon
you as any other. That frauds of this kind may be detected and
traced to their origin, you are particularly instructed to stamp,
or mark in writing, any transient (by which is meant all not
regularly sent to subscribers) newspapers, pamphlets, or magazines,
with the name of the office and the amount of postage. "
Page 53 U. S. 286
"The wrappers of all such newspapers, pamphlets, and magazines,
when they have reached their destination, should be carefully
removed, and if upon inspection found to contain any manuscript or
memorandum of any kind, either written or stamped, or by marks or
signs made in any way, either upon any newspapers, printed
circular, price current, pamphlet, or magazine, or the wrapper in
which it is enclosed, by which information shall be asked for or
communicated, except the name and address of the person to whom it
is directed, such newspaper, printed circular, price current,
pamphlet, or magazine, with the wrapper in which it is enclosed,
shall be charged with letter postage by weight. If the person to
whom the newspaper, printed circular, price current, pamphlet, or
magazine is directed refuses to pay such letter postage thereon,
the postmaster will immediately transmit the same to the office
from whence it was forwarded and request the postmaster thereof to
prosecute the same for the penalty of five dollars, as prescribed
by the 30th section of the act of 1825. Suits may be brought either
in district courts or before state magistrates having civil
jurisdiction in actions of debt for this amount under the
respective state laws; the name of the sender written or stamped
either upon the newspaper, printed circular, price current,
pamphlet, or magazine, or the wrapper in which it is enclosed,
communicates such information, as subjects it to letter postage,
and the consequential penalties if such postage is not paid at the
place of its destination. The diminution of the revenue of the
department under the cheap postage system, and the great and
increasing demand for additional mail facilities throughout the
country, whose territory now extends to the Pacific, renders it
absolutely necessary not only that every cent of lawful revenue be
collected and accounted for, but that the utmost vigilance should
be exercised for the prevention of fraud and the sure and speedy
infliction of the proper penalty upon the offender. This can only
be accomplished by the strictest attention of postmasters, who are
the sworn agents of the department, and bound to see the laws
faithfully administered."
"W. J. BROWN"
"
2d Assistant Postmaster General"
"Post Office Department, Dec'r 4, 1846"
In February, 1847, there came to the post office at Syracuse, a
newspaper, called the Michigan Expositor, which was put into the
box of Mr. Hicks. There was an initial upon the wrapper of the
paper, distinct from the direction and no part of it, the initial
being a single letter. In consequence of this, it was charged with
letter postage, which Mr. Hicks refused to
Page 53 U. S. 287
pay, but tendered the newspaper postage. It was admitted that
Mr. Hicks had authority to demand the paper for Mary C. Felton, to
whom it was addressed, and that its value was six cents.
Hicks brought an action of trover against Teal, the postmaster,
before a justice of the peace for Onondaga County, before whom the
question of jurisdiction was raised. The justice, however,
sustained his jurisdiction and gave judgment against the
postmaster, the cause being tried by a jury for six cents damages
and two dollars and eighty-nine cents costs.
A writ of certiorari removed the cause to the Court of Common
Pleas in and for the County of Onondaga, which, at May term, 1847,
affirmed the judgment of the justice, with twenty-two dollars and
ninety-five cents costs.
Teal then carried the case to the supreme court of the State of
New York, which, in June, 1848, approved the judgment of the court
of common pleas, with thirty-seven dollars and sixty cents
additional costs, making, in the whole, sixty dollars and
fifty-five cents.
This decision was reviewed by the Court of Appeals, which
decided that there was no error in it and gave judgment for
seventy-five dollars and sixty-four cents, making, in the whole,
one hundred and thirty-six dollars and nineteen cents.
A writ of error, sued out by Teal, brought the case up to this
Court.
Page 53 U. S. 289
MR. JUSTICE WAYNE delivered the opinion of the Court.
This suit was brought in a justice's court to recover from the
plaintiff in error the value of a newspaper, received by him as
postmaster as Syracuse, which he refused to deliver to the
defendant in error to whom it was addressed. The plaintiff in error
had charged the newspaper with letter postage on account of a
letter or initial upon the wrapper of it, distinct from the
direction. This the defendant refused to pay, at the same time
tendering the lawful postage of a newspaper. The postmaster would
not receive it, and retained the paper against the will of the
defendant; upon that demand and refusal, the suit was brought. The
action was trover, and the general issue was pleaded. In the course
of the trial, when the defendant in error, who was plaintiff in the
suit below, was introducing testimony in support of his case, the
defendant objected to a further examination of the case by
witnesses upon the ground that the court had not jurisdiction of
the case. The objection having been overruled, the trial of the
case was continued, and after the plaintiff had proved that he
demanded from the defendant the newspaper, tendering the lawful
postage, and that the postmaster refused to deliver it to him, he
rested his case.
The defendant below then moved for a nonsuit, which having been
denied, be offered in evidence a circular from the Post Office
Department of 4 December, 1846, marked in the record as A, and also
the Post-Office Act of 1845. The case was submitted to a jury. A
verdict was rendered by it against the defendant, upon which a
judgment was entered. The defendant carried the case to the Court
of Appeals and the judgment of the lower court was affirmed. It is
brought to this Court by a writ of error. As the Court of Appeals
could not have adjudicated the case without having denied to the
defendant a defense which he claimed under a law of the United
States, the case is properly here under the 25th section of the
Judiciary Act of 1789.
The circular from the Post Office Department is as follows:
"The wrappers of all such newspapers, pamphlets and magazines,
when they have reached their destination, should be carefully
removed, and if upon inspection they are found to contain any
manuscript or memorandum of any kind, either written or stamped, or
by marks or signs made in any way, either upon any newspaper
&c. or the wrapper upon which it is enclosed by which
information shall be asked or communicated except the name of the
person to whom it is directed, such newspaper,
Page 53 U. S. 290
&c., with the wrapper in which it is enclosed shall be
charged with letter postage by weight."
If the person to whom the newspaper is directed, refuses to pay
the letter postage, the postmaster is directed to transmit the same
to the office whence it came, with a request that the person who
sent it may be prosecuted for the penalty of five dollars,
according to the 30th section of the act of 1825. Those parts of
the 30th section mentioned, upon which the circular was issued, and
of the 13th section of the act directing that a memorandum which
shall be written on a newspaper, shall be charged with letter
postage are:
"If any person shall enclose or conceal a letter or other thing,
or any memorandum in writing in a newspaper, pamphlet or magazine,
or in any package of newspapers &c., or make any writing or
memorandum thereon which he shall have delivered in any post office
or to any person for that purpose in order that the same may be
carried by post free of letter postage, he shall forfeit the sum of
five dollars for every such offense, and the letter, newspaper,
package, memorandum or other thing shall not be delivered to the
person to whom it is directed until the amount of single letter
postage is paid for each article of which the package is
composed."
That part of the 13th section of the act mentioned is:
"Any memorandum which shall be written on a newspaper or other
printed paper, pamphlet or magazine, and transmitted by mail shall
be charged with letter postage."
4 Laws of the United States 105-111. Those parts of the law of
1845, in any way applicable to this case are the 1st and 2d
sections, fixing the rates of postage upon letters and newspapers,
and the 16th section, which defines a newspaper to be a printed
publication issued in numbers, consisting of not more than two
sheets and published at short intervals of not more than a month,
conveying intelligence of passing events, and the
bona
fide extras and supplements of any such publication. 5 U.S.L.
732, 737.
From the evidence in this case, we do not think that the initial
or letter upon the wrapper of the newspaper in this case subjected
it either under the 13th or 30th section of the act of 1825 to
letter postage. Why it was placed there, supposing it not to have
been accidental, cannot be found out from this record, and it must
have been a meaningless mark to the postmaster. It may have excited
a suspicion that it was a sign arranged between the person sending
it and the person to whom it was directed to convey information of
some sort or other for which letter postage would have been charged
if it had been conveyed in words. The act forbids a memorandum in
the 13th section, and in the 30th, providing for a penalty, the
terms are, "any writing or memorandum," but in neither are found
the terms "marks
Page 53 U. S. 291
or signs," as used in the circular. No provision is made for
such a case. It must be obvious too that frauds of that kind cannot
be prevented in the transmission of newspapers without legislation
by Congress subjecting newspapers conveyed by mail to letter
postage whenever there shall be, either upon the newspaper or the
wrapper of it, any letter, sign, or mark besides the address of the
person to whom it is sent. A single letter or initial upon the
wrapper of a newspaper is neither a memorandum nor a writing in the
sense in which either or those terms are ordinarily used or as we
think they were intended to be used in the 30th section of the act.
Both mean something in words to convey intelligence, a remembrance
for one's self or to another. The act speaks of something concealed
in a newspaper or package of newspapers, of a writing or memorandum
from which it may be seen to have been the intention of the sender
to convey information clandestinely under the wrapper or upon it in
a form, though not disclosing what it is, which will leave no doubt
of his intention. The initial in this case does not seem to have
been one or the other. It is not a memorandum, certainly, and a
single letter of the alphabet can convey no other idea than that it
belongs to it unless it is used numerically. This was not a case in
which judgment could be used to determine any fact except by some
other evidence than the letter itself. Nor was it one calling for
discretion in the legal acceptation of that term in respect to
officers who are called upon to discharge public duties. What was
done by the postmaster was a mere act of his own, and ministerial,
as that is understood to be, distinct from judicial. It could not
have been the intention of Congress to put it in the power of
postmasters, upon a mere suspicion raised by a single letter or
initial, to arrest the transmission of newspapers from the presses
issuing them or when they were mailed by private hands.
This view of the law disposes also of that point in the argument
claiming for the postmaster an exemption from the suit of the
plaintiff, upon the ground that he was called upon, in the act
which he did, to exercise discretion and judgment. In
Kendale v.
Stokes, 3 How. 97,
44 U. S. 98, will
be found this Court's exposition upon that subject, with the
leading authorities in support of it. The difference between the
two must at all times be determined by the law under which an
officer is called upon to act and by the character of the act. It
is the law which gives the justification, and nothing less than the
law can give irresponsibility to the officer, although he may be
acting in good faith under the instructions of his superior of the
department to which he belongs. Here the instructions exceed the
law, and marks and signs of themselves, without some knowledge of
their meaning and
Page 53 U. S. 292
the intention in the use of them, are, as we have said, neither
memoranda nor writings.
Tracy v.
Swartwout, 10 Pet. 80.
But it is said that the courts of New York had not jurisdiction
to try the case. The objection may be better answered by reference
to the laws of the United States in respect to the services to be
rendered in the transmission of letters and newspapers by mail and
by the Constitution of the United States than it can by any general
reasoning upon the concurrent civil jurisdiction of the courts of
the United States and the courts of the states, or concerning the
exclusive jurisdiction given by the Constitution to the former.
The United States undertakes, at fixed rates of postage, to
convey letters and newspapers for those to whom they are directed,
and the postage may be prepaid by the sender or be paid when either
reach their destination by the person to whom they are addressed.
When tendered by the latter or by his agent, he has the right to
the immediate possession of them, though he has not had before the
actual possession. If then they be wrongfully withheld for a charge
of unlawful postage, it is a conversion for which suit may be
brought. His right to sue existing, he may sue in any court having
civil jurisdiction of such a case, unless for some cause the suit
brought is an exception to the general jurisdiction of the court.
Now, the courts in New York having jurisdiction in trover, the case
in hand can only be excepted from it by such a case as this having
been made one of exclusive jurisdiction in the courts of the United
States by the Constitution of the United States. That such is not
the case we cannot express our view better than Mr. Justice Wright
has done in his opinion in this case in the Court of Appeals. After
citing the 2d section of the 3d Article of the Constitution, he
adds,
"this is a mere grant of jurisdiction to the federal courts, and
limits the extent of their power, but without words of exclusion or
any attempt to oust the state courts of concurrent jurisdiction in
any of the specified cases in which concurrent jurisdiction existed
prior to the adoption of the Constitution. The apparent object was
not to curtail the powers of the state courts, but to define the
limits of those granted to the federal judiciary."
We will add that the legislation of Congress immediately after
the Constitution was carried into operation confirms the conclusion
of the learned judge. We find in the 25th section of the Judiciary
Act of 1789, under which this case is before us, that such a
concurrent jurisdiction in the courts of the states and of the
United States was contemplated, for its first provision is for a
review of cases adjudicated in the former
"where is drawn in question, the validity of a treaty or statute
of, or an authority exercised under the United States, and the
decision is against their validity. "
Page 53 U. S. 293
We are satisfied that there was no error in the decision of the
Court of Appeals in this case, and the same is affirmed by this
Court.
Order
This cause came on to be heard on the transcript of the record
from the supreme court of the State of New York and was argued by
counsel. On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the Court of Appeals of
the said State of New York in this cause and as remitted to the
said supreme court be and the same is hereby affirmed with
costs.
