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versity of opinion and practice on this subject in the American courts; but, after weighing the question with due deliberation, we are of opinion that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial." If the due process of law required by the 14th Amendment embraces the guaranty that no person shall be put twice in jeopardy of life or limb,-upon which question we need not now express an opinion,-what was said in United States v. Perez is applicable to this case upon the present writ of error, and is adverse to the contention of the accused that he was put twice in jeopardy.

The contention is that, notwithstanding the recital in the record that the jury were discharged by the court because they were unable to agree upon a verdict, such discharge was without moral or physical neces- The principles settled in United States v. sity, and operated as an acquittal of the de-Perez, we may remark, were reaffirmed in fendant.

Upon the face of the question under examination the inquiry might arise whether the due process of law required by the 14th Amendment protects one accused of crime from being put twice in jeopardy of life or limb. In other words, is the right not to be put twice in jeopardy of life or limb forbidden by the 14th Amendment; or, so far as the Constitution of the United States is concerned, is it forbidden only by the 5th Amendment, which, prior to the adoption of the 14th Amendment, had been held as restricting only the powers of the national government and its agencies?

We pass this important question without any consideration of it upon its merits, and content ourselves with referring to the decision of this court in United States v. Perez, 9 Wheat. 579, 6 L. ed. 165. That was a capital case, in which, without the consent of the prisoner or of the attorney of the United States, the jury, "being unable to agree, were discharged by the court from giving any verdict. This court, speaking by Mr. Justice Story, said: "We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think that in all cases of this nature the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and con

Ex parte Lange, 18 Wall. 175, 21 L. ed. 878; Simmons v. United States, 142 U. S. 148, 35 L. ed. 968, 12 Sup. Ct. Rep. 171; Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. Rep. 617; Thompson v. United States, 155 U. S. 274, 39 L. ed. 149, 15 Sup. Ct. Rep. 73.

The conclusion is that the judgment of the Supreme Court of Illinois did not deny to the plaintiff in error any right secured by the Constitution of the United States, and is therefore affirmed.

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The Postmaster General is not justified in prohibiting the delivery of letters addressed to a corporation which assumes to heal disease through the influence of the mind, by the provisions of U. S. Rev. Stat. §§ 3929, 4041, and the act of Congress of March 2, 1895, § 4 (28 Stat. at L. 963, 964, chap. 191), which authorize the retention of letters directed to any person obtaining money through the mails by false pretenses or promises, as the effectiveness of such treatment is a mere matter of opinion, and the statutes are only intended to cover cases of actual fraud in fact.

The determination of the Postmaster General that letters addressed to a certain corporation should be refused delivery is not so conclusive on the Federal courts as to preclude them from granting Injunctive rellef to such corporation, where his action was not authorized by the statutes under which he assumed to act.

[No. 27.]

Submitted January 29, 1902. Restored to docket for oral argument February 24, 1902. Argued October 15, 16, 1902. Decided November 17, 1902.

PPEAL from the Circuit Court of the

cientious exercise of this discretion rests A United States for the Western District

in this, as in other cases, upon the responsibility of the judges, under their oaths of office. We are aware that there is some di23 S. C.-3.

U. S. Comp. St. 1901, pp. 2686, 2749. †Id. p. 3178.

2. See Injunction, vol. 27, Cent Dis. § 142.

t

00

98.

*95

96.

of Missouri to review a decree dismissing | plained of, the receipts through the United a bill to enjoin a postmaster from carrying out an order of the Postmaster General directing the retention of letters addressed to a corporation. Reversed.

See same case on motion for temporary injunction, 102 Fed. 565.

Statement by Mr. Justice Peckham: *This is an appeal under § 5 of the circuit court of appeals act of 1891, to review directly the decree of the circuit court of the United States for the western district of Missouri, dismissing the bill of complainants (appellants) on the merits. The bill, as amended by leave of the court, averred in substance that the complainants are, the one a business corporation incorporated under the laws of and doing business in the state of Missouri, and the other a resident and citizen of the state of Missouri; that the defendant was, at the time of the filing of the bill and at the times therein stated, postmaster in charge of the United States postoffice in the city of Nevada, state of Missouri, and a resident and a citizen of that state; that as such postmaster he has the exclusive management of the postoffice in the city of Nevada, and of the receipt and distribution of mail received at that city through the

United States mails.

It was further averred that the American School of Magnetic Healing is located and has its chief office and place of business at the city of Nevada, and the complainant Kelly was at the time of the filing of the bill and at all the dates and times mentioned therein secretary, treasurer, and general manager of the corporation. In November, 1897, he located at Nevada, and engaged in the business of healing diseases and ailments of the human family, and the business of teaching the science of healing of human ills, and that in April, 1898, he procured the incorporation of the business under the laws of the state of Missouri, under the name of the American School of Magnetic Healing, and among the stockholders of the company the complainant Kelly was one; that large buildings were erected for such business, and large amounts expended in advertising the same. The bill further averred as follows:

States mails, in the manner aforesaid, for the treatment of persons throughout the United States and foreign countries, have reached and averaged about from $1,000 to $1,600 per day.

"And your orators state that said business is a legal and legitimate business, conducted according to business and legal methods, and is founded largely, and almost exclusively, on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treating, curing, benefiting, and remedying thereof.

"And that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to and complainants discard and eliminate from their treatment what is commonly known as divine healing and Christian science, and complainants are confined to practical scientific treatment, emanating from the source aforesaid.

"That for a long time previous and prior to the grievances hereinafter mentioned, said corporation has been sending out a large amount of advertising matter through the United States postoffice at said city of Nevada, and that all of its receipts, by checks, drafts, or money orders aforesaid, have been received by and delivered to them through the United States postoffice at the city of Nevada, of which the respondent herein has exclusive charge as postmaster aforesaid, and had, during the time aforesaid, been receiving a large number of letters addressed to said institution and to its office, regarding its treatment and manner of treatment, and business letters pertaining to, and inquiring into, the manner of treatment.

"That all such mail, letters, and communications are generally addressed and directed to the American School of Magnetic Healing at said city, and that in many cases said letters are and may be addressed to said J. H. Kelly, secretary or treasurer or manager, or to J. H. Kelly, individually, or to Prof. J. H. Kelly, or to J. H. Kelly or Prof. J. H. Kelly, secretary, treasurer, or manager of the American School of Magnetic Healing.

"That in and about their business they "That said Kelly is also receiving, and for carried on and conducted, not only the treat- a long time past has been receiving, letters ing of people afflicted with ills at their es- addressed to him individually upon social tablishment at said city, but also engaged in matters from friends and acquaintances, and the business of teaching and educating oth-concerning business not pertaining to or coners in the practical science of healing, and nected with the business hereinafter stated. that a large amount of their business con- "That prior to the grievances hereinafter sists of treatment by letter and advice to people throughout the United States and foreign countries; and in the treatment under said circumstances, they have built up a large and extensive business in the way of receipts of such treatment, received through the United States mail, by letter, registered package, and otherwise, in the nature of checks, drafts, and United States moneys; that said business has grown to such an extent that, immediately and for a long time prior to the grievances hereinafter com

mentioned, said institute was receiving in the way of letters addressed to it or to its officers in the manner aforesaid, an average of about the sum of 3,000 letters per day, and ever since the happening of the griev ances hereinafter mentioned there have been accumulating in said post office letters belonging to your orator, addressed in the manner before stated, probably to the total number of 25,000 letters.

"That all of said letters, as your orators are informed and believe, are duly stamped

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and ready for delivery to them but for the action of the postmaster and Postal Depart ment hereinafter mentioned."

It was then averred that persons who were prompted by assumed competitive interference with their business complained to the United States Postoffice Department at Washington that complainants were not en gaged in legitimate business, and therefore, on May 15, 1890, the Postoffice Department made the following order:

Postoffice Department, Washington, D. C., May 15, 1900. It having been made to appear to the Postmaster General, upon evidence satisfactory to him, that the American School of Magnetic Healing, S. A. Weltmer, president, J. H. Kelly, secretary, and J. A. Kelly, at Nevada, Missouri, are engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent pretenses, representations, and promises, in violation of the act of Congress entitled "An Act to Amend Certain Sections of the Revised Statutes Relating to Lotteries, and for Other Purposes, Approved September 19, 1900."

Now, therefore, by authority vested in him by said act and by the act of Congress entitled "An Act for the Suppression of Lottery Traffic through International and Interstate Commerce and the Postal Service, Subject to the Jurisdiction and Laws of the United States, Approved March 2, 1895,"1 the Postmaster General hereby forbids you to pay any postal money order drawn to the order of said concern and persons, and you are hereby directed to inform the remitter of any such postal money order that payment thereof has been forbidden, and that the amount thereof will be returned upon the presentation of a duplicate money order, applied for and obtained under the regulations of the Department.

And you are hereby instructed to return all letters, whether registered or not, and other mail matter which shall arrive at your office directed to the said concern and per sons, to the postmasters at the offices at which they were originally mailed, to be de livered to the senders thereof, with the word "fraudulent" plainly written or stamped upon the outside of such letters or *matter. Provided, however, that where there is nothing to indicate who are the senders of letters not registered, or other matter, you are directed in that case to send such letters and matter to the dead letter oflice, with the word "fraudulent" plainly written or stamped thereon, to be disposed of as other dead matter, under the laws and regulations applicable thereto.

Ch. Emory Smith, Postmaster General. To the Postmaster, Nevada, Missouri.

Since such order the defendant has refused to deliver any mail whatever to the complainants, and there had, when the bill was filed, as complainants aver on information and belief, accumulated at the postotice at Nevada letters addressed to them

containing checks, drafts, money orders, or money to an aggregate of at least $10,000 in value; that these checks, drafts, etc., came from various customers and clients throughout the United States and foreign countries, who had all been treated and for whom the complainants had performed services, under contracts with such parties, and that the sums were so sent in the respective letters in payment for services performed and rendered to the senders respectively, all of the senders being willing, and at all times have been willing, that their letters containing the remittances should be turned over to the complainants, they making no objection or complaint thereto.

The complainants further averred that they had been informed by the defendant that on Monday, the 28th day of May, then coming, he intended to stamp on each and every one of the letters addressed to the complainants, under any of the designations theretofore mentioned in the bill, the word "fraudulent" across the face of each letter, without opening it and without knowing what such letter contained, or the nature or character of the contents, and that the defendant would then return the letter to the sender thereof in all cases where, from the outside of the letter or envelope, he was able to determine from whom the same was received, and as to all other letters addressed to the complainants, where he was unable to determine from the outside from whom the letters were sent, the defendant would stamp with the word "fraudulent," and send to the dead letter office of the United States Postoffice Department all such letters; and the defendant stated that he would refuse to deliver any further mail or letters to the complainants or either of them, that might be received at his said post office addressed to them or either of them.

Complainants then averred that if the respondent were permitted to do these things, and to return the letters, and refused in the future to deliver or allow complainants to receive any letters or mail matter at the postoffice at Nevada, it would work irrepar able injury, loss, and damage to the complainants, and would result in eventually embarrassing, crippling, breaking up, and destroying complainants' legitimate business; and that the complainants had no other legal or adequate remedy by which they could prevent the committing of the acts and grievances complained of than by writ of injunction.

The bill then averred that the action of the defendant was based upon the order of the Postmaster General, above set forth, who assumed to act under §§ 3929 and 4041 of the Revised Statutes of the United States,1 and 4 of an act approved March 2, 1895. 28 Stat. at L. 963, 964, chap. 191.2

Section 3929 of the Revised Statutes is set forth in the margin.†

1 U. S. Comp. St. 1901, pp. 2686, 2749. * Id. p. 3178.

+ Sec. 3929. The Postmaster General may, apon evidence satisfactory to him that any person is engaged in conducting any fraudulent lottery, gift enterprise, or scheme for the die

•101

mine any violation of the statute or claimed violation of the statutes, but placed the same absolutely in the power and control of the postmasters and the Postoffice Department; and that the statutes vest an arbitrary discretion in the postmasters and the Postoffice Department or the Postmaster General to determine as he may see fit, whether right or wrong, the question as to who shall or who shall not have and receive mail from the United States Postoffice Department, and who shall and who shall not use the United States mails, and vest in the Department or the Postmaster General if enforced, the power to interdict and absolutely prohibit the carrying on of all commercial and business transactions of the country done through the mailing system, if they see fit to do so, and make the postmasters and the Postoffice Department the sole judges in their own case.

The defendant demurred to the complain. ants' amended bill (1) on the ground that the complainants had not stated any such case as entitled them to any relief; (2) because the complainants had not stated any ground for equitable relief against the defendant, and had not shown any reason why an injunction should be granted.

Section 4041 is of the same purport as 3929, excepting that instead of providing for the retention of registered letters, it forbids the payment by any postmaster to the person or company described of any postal money orders drawn to his or its order, or to his or its favor, or to any agent of any such person or company, and it provides for the return to the remitters of the sums of money named in those money orders. Section 4 of the act (Laws of 1895, chap. 191; 28 Stat. at L. 693, 694)3 amended § 3929 of the Revised Statutes so as to provide for the retention of all letters, instead of merely registered letters as in the original section. Before the issuing of the written order by the Postmaster General prohibiting the delivery of mail matter to the complainants, and pursuant to notice from the Postmaster General, the complainants went before that official at Washington and had a hearing before him, and gave their reasons why what The complainants then asked for an inis termed a "fraud order" should not be is-junction to restrain the postmaster from carsued, and that the Postmaster General, aft-rying out the order of the Postmaster Gener hearing evidence such as in his judgment eral, and that a decree might be entered perwas contemplated by the sections of the stat-petually enjoining the defendant as prayed utes above mentioned, issued the order above for. referred to, and thereupon the defendant has refused to permit the delivery of the mail, and assigns as his only reason for so doing that it would be in violation of the order of the Postmaster General, founded upon the provisions of the statute already set forth. The bill then averred that the statutes have no application whatever to the conduct or carrying on of complainants' business, which is a legitimate one, and that no fraud, deceit, deception, or misrepresentation of any kind has ever been practised by them, and that their customers or clients do not claim or assert that the complainants have in any manner practised any fraud, deceit, or misrepresentation at any time in procuring the business from them, or in curing their illa or diseases. Complainants further averred that the provisions of the statutes above mentioned are in violation of the 4th, 5th, and 14th Amendments to the Constitution of the United States, in that they undertake to deprive persons of their property and property rights without due process of law; and, if the statutes were enforced they The bill of the complainants as amended would place in the power of the postmaster raises some grave questions of constitutional and the Postoffice Department of the United law which, in the view the court takes of States the sole and exclusive right to pass the case, it is unnecessary to decide. We upon the rights of the complainants, as be- may assume, without deciding or expressing tween themselves and other parties with any opinion thereon, the constitutionality whom they deal and transact business in all particulars of the statutes above rethrough the mails, without a hearing; and ferred to, and therefore the questions arising that the provisions of the statute are void in the case will be limited (1) to the infor the reason that they provide for no tri-quiry as to whether the action of the Postbunal, court, or authority to hear or deter-master General under the circumstances set

tribution of money, or of any real or personal property, by lot, chance, or drawing of any kind, or in conducting any other scheme or device for obtaining money through the mails by means of false or fraudulent pretenses, repreBentations, or promises, Instruct postmasters at any postoffices at which registered letters arrive directed to any such person, to return all such registered letters to the postmasters U. S. Comp. St. 1901, p. 3178.

The court sustained the demurrer, and, the complainants declining to plead further, it was decreed by the court that the amended bill of the complainants was insufficient in law and equity, and it was thereupon dismissed at complainants' cost.

Messrs. James K. Harkless, John O'Grady, and Charles S. Crysler, for appellants.

Solicitor General Richards and Mr. Robert A. Howard for appellee.

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court:

at the offices at which they were originally mailed, with the word "fraudulent" plainly written or stamped upon the outside of such letters; and all such letters so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. But nothIng contained in this title shall be so construed as to authorize any postmaster or other person to open any letter not addressed to himself.

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forth in the complainants' bill is justified by the statutes; and (2), if not, whether the complainants have any remedy in the courts. First. As the case arises on demurrer, all material facts averred in the bill are, of course, admitted. It is therefore admitted that the business of the complainants is founded "almost exclusively on the physical and practical proposition that the mind of the human race is largely responsible for its ills, and is a perceptible factor in the treating, curing, benefiting, and remedying thereof, and that the human race does possess the innate power, through proper exercise of the faculty of the brain and mind, to largely control and remedy the ills that humanity is heir to, and (complainants) discard and eliminate from their treatment what is commonly known as divine healing and Christian science, and they are confined to practical scientific treatment, emanating from the source aforesaid."

These allegations are not conclusions of law, but are statements of fact upon which, as averred, the business of the complainants is based, and the question is whether the complainants, who are conducting the business upon the basis stated, thereby obtain money and property through the mails by means of false or fraudulent pretenses, representa tions, or promises. Can such a business be properly pronounced a fraud within the statutes of the United States?

There can be no doubt that the influence of the mind upon the physical condition of the body is very powerful, and that a hopeful mental state goes far, in many cases, not only to alleviate, but even to aid very largely in the cure of an illness from which the body may suffer. And it is said that nature may itself, frequently, if not generally, heal the ills of the body without recourse to medicine, and that it cannot be doubted that in numerous cases nature, when left to itself, does succeed in curing many bodily ills. How far these claims are borne out by actual experience may be matter of opinion. Just exactly to what extent the mental condition affects the body, no one can accurately and definitely say. One person may believe it of far greater efficacy that another, but surely it cannot be said that it is a fraud for one person to contend that the mind has an effect upon the body and its physical condition greater that even a vast majority of intelligent people might be will ing to admit or believe. Even intelligent people may and indeed do differ among themselves as to the extent of this mental effect. Because the complainants might or did claim to be able to effect cures by reason of working upon and affecting the mental powers of the individual, and directing them towards the accomplishment of a cure of the disease under which he might be suffering, who can say that it is a fraud, or a false pretense or promise within the meaning of these statutes? How can anyone lay down the limit and say beyond that there are fraud and false pretenses? The claim of the ability to cure may be vastly greater than most men would be ready to admit,

and yet those who might deny the existence or virtue of the remedy would only differ in opinion from those who assert it. There is no exact standard of absolute truth by which to prove the assertion false and a fraud. We mean by that to say that the claim of complainants cannot be the subject of proof as of an ordinary fact; it cannot be proved as a fact to be a fraud, or false pretense or promise, nor can it properly be said that those who assume to heal bodily ills or infirmities by a resort to this method of cure are guilty of obtaining money under false pretenses, such as are intended in the stat utes, which evidently do not assume to deal with mere matters of opinion upon subjects which are not capable of proof as to their falsity. We may not believe in the efficacy of the treatment to the extent claimed by complainants, and we may have no sympa. thy with them in such claims, and yet their effectiveness is but matter of opinion in any court. The bill in this case avers that those who have business with complainants are satisfied with their method of treatment, and are entirely willing that the money they sent should be delivered to the complainants. In other words, they seem to have faith in the efficacy of the complainants' treatment, and in their ability to heal as claimed by them. If they fail, the answer might be that all human means of treatment are also liable to fail, and will necessarily fail when the appointed time arrive. There is no claim that the treatment by the complainants will always succeed.

Suppose a person should assert that, by the use of electricity alone, he could treat diseases as efficaciously and successfully as the same have heretofore been treated by "regular" physicians. Would these statutes justify the Postmaster General, upon evidence satisfactory to him, to adjudge such claim to be without foundation, and then to pronounce the person so claiming, to be guilty of procuring, by false or fraudulent pretenses, the moreys of people sending him money through the mails, and then to prohibit the delivery of any letters to him? The moderate application of electricity, it is strongly maintained, has great effect upon the human system, and just how far it may cure or mitigate diseases no one can tell with certainty. It is still in an empirical stage, and enthusiastic believers in it may regard it as entitled to a very high posi. tion in therapeutics, while many others may think it absolutely without value or potency in the cure of disease. Was this kind of question intended to be submitted for declsion to a Postmaster General, and was it intended that he might decide the claim to be a fraud and enjoin the delivery of letters through the mail addressed to the person practising such treatment of disease? the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of differ ence of opinion, even though the great major. ity may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster

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