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court, and, being unable to agree upon a versity of opinion and practice on this sub verdict, are thereupon, by order of this ject in the American courts; but, after court, discharged from further consideration weighing the question with due deliberation, of this cause."

we are of opinion that such a discharge conIt seems to be undisputed that the case stitutes no bar to further proceedings, and was submitted to the jury at 4 o'clock in gives no right of exemption to the prisoner the afternoon, and that the jury, having from being again put upon trial.” If the retired to consider of their verdict, were due process of law required by the 14th kept together until 9 o'clock and thirty Amendment embraces the guaranty that no minutes in the morning of the succeeding person shall be put twice in jeopardy of life day, when they were finally discharged from or limb,-upon which question we need not any further consideration of the case. now express an opinion,-what was said in

The contention is that, notwithstanding United States v. Perez is applicable to this the recital in the record that the jury were case upon the present writ of error, and is discharged by the court because they were adverse to the contention of the accused that unable to agree upon a verdict, such dis he was put twice in jeopardy. charge 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 reasfirmed in fendant.

Ex parte Lange, 18 Wall. 175, 21 L. ed. Upon the face of the question under ex. 878; Simmons v. United States, 142 U. S. amination the inquiry might arise whether 148, 35 L. ed. 968, 12 Sup. Ct. Rep. 171; the due process of law required by the 14th Logan v. United States, 144 U. S. 263, 36 Amendment protects one accused of crime L. ed. 429, 12 Sup. Ct. Rep. 617; Thompson from being put twice in jeopardy of life or v. United States, 155 U. S. 274, 39 L. ed. limb. In other words, is the right not to be 149, 15 Sup. Ct. Rep. 73. put twice in jeopardy of life or limb for. • The conclusion that the judgment of the bidden by the 14th Amendment; or, so far Supreme Court of Illinois did not deny to as the Constitution of the United States is the plaintiff in error any right secured by concerned, is it forbidden only by the 5th the Constitution of the United States, and Amendment, which, prior to the adoption is therefore affirmed. of the 14th Amendment, had been held as restricting only the powers of the national

(187 U. S. 94) government and its agencies !

AMERICAN SCHOOL OF MAGNETIO We pass this important question without

HEALING and J. H. Kelly, Appts. any consideration of it upon its merits, and content ourselves with referring to the decision of this court in United States v.

J. M. MCANNULTY. Perez, 9 Wheat. 579, 6 L. ed. 165. That was Postal laws-exclusion from mails-fraudu& capital case, in which, without the con- lent schemes mind oure - conclusiveness sent of the prisoner or of the attorney of the

of decision of Postmaster General United States, the jury, * being unable to agree, were discharged by the court from 1 The Postmaster General 18 not justified in giving any verdict. This court, speaking by

prohibiting the dellvery of letters addressed Mr. Justice Story, said: “We are of opin

to a corporation which assumes to beal dis

ease through the influence of the mind, by ion that the facts constitute no legal bar to

the provisions of U. S. Rev. Stat. $$ 3929, & future trial. The prisoner has not been 4041,* and the act of Congress of March 2, convicted or acquitted, and may again be 1895, § 4 (28 Stat. L. 963, 964, chap. put upon his defense. We think that in all 191),t which authorize the retention of letcases of this nature the law has invested

ters directed to any person obtaining money courts of justice with the authority to dis

through the mails by false preten ses or

promises, as the effectiveness of such treat. charge a jury from giving any verdict,

ment is a mere matter of oplnion, and the whenever, in their opinion, taking all the statutes are only intended to cover cases of circumstances into consideration, there is a actual fraud in fact, manifest necessity for the act, or the ends of 2. The determination of the Postmaster public justice would otherwise be defeated. General that letters addressed to a certain They are to exercise a sound discretion on corporation should be refused delivery 1s the subject; and it is impossible to define all not so conclusive on the Federal courts as the circumstances which would render it

to preclude them from granting Injunctive proper to interfere. To be sure, the power

rellet to such corporation, where his action

was not authorized by the statutes under ought to be used with the greatest caution,

which be assumed to act. under urgent circumstances, and for very plain and obvious causes; and, in capital

[No. 27.) cases especially, courts should be extremely careful how they interfere with any of the Submitted January 29, 1902. Restored to chances of life in favor of the prisoner.

docket for oral argument February 24, But, after all, they have the right to order

1902. Argued October 15, 16, 1902. De

cidcd November 17, 1902. the discharge; and the security which the public have for the faithful, sound, and con. scientious exercise of this discretion rests

United States for the Western District in this, as in other cases, upon the responsi. bility of the judges, under their oaths of •U. S. Comp. St. 1901, pp. 2636, 2749. office. We are aware that there is some di.

tid. p. 3178. 23 S. C.-3.

9 2. See Injunction, vol. 37, Cent. Dis. $ 141.





of Missouri to review a decree dismissing plained of, the receipts through the United a bill to enjoin a postmaster from carrying States mails, in the manner aforesaid, for out an order of the Postmaster General di- the treatment of persons throughout the recting the retention of letters addressed to United States and foreign countries, havo a corporation. Reversed.

reached and averaged about from $1,000 to See same case on motion for temporary | $1,600 per day. injunction, 102 Fed. 565.

“And your orators state that said business

is a legal and legitimate business, conducted Statement by Mr. Justice Peckham: according to business and legal methods, and * This is an appeal under § 5 of the circuit is founded largely, and almost exclusively, court of appeals act of 1891, to review di. on the physical and practical proposition rectly the decree of the circuit court of the that the mind of the human race is largely United States for the western district of Mis- responsible for its ills, and is a perceptible souri, dismissing the bill of complainants factor in the treating, curing, benefiting, (appellants) on the merits. The bill, as and remedying thereof. amended by leave of the court, averred in

“And that the human race does possess substance that the complainants are, the one the innate power, through proper exercise a business corporation incorporated under of the faculty of the brain and mind, toe the laws of and doing business in the state largely control and remedy the ills that hu.. of Missouri, and the other a resident and manity is heir to* and complainants discard citizen of the state of Missouri; that the de- and eliminate from their treatment what is fendant was, at the time of the filing of the commonly known as divine healing and bill and at the times therein stated, postmas. Christian science, and complainants are conter in charge of the United States postoffice fined to practical scientific treatment, emanin the city of Nevada, state of Missouri, and ating from the source aforesaid. a resident and a citizen of that state; that "That for a long time previous and prior as such postmaster he has the exclusive to the grievances hereinafter mentioned, said management of the postoflice in the city of corporation has been sending out a large Nevada, and of the receipt and distribution amount of advertising matter through the of mail received at that city through the United States postoffice at said city of NeUnited States mails.

vada, and that all of its receipts, by checks, It was further averted that the American drafts, or money orders aforesaid, have been School of Magnetic Healing is located and received by and delivered to them through has its chief office and place of business at the United States postoffice at the city of the city of Nevada, and the complainant Nevada, of which the respondent herein has Kelly was at the time of the filing of the exclusive charge as postmaster aforesaid, bill and at all the dates and times mentioned and had, during the time aforesaid, been re therein secretary, treasurer, and general ceiving a large number of letters addressed manager of the corporation. In November, to said institution and to its office, regard. 1897, he located at Nevada, and engaged in ing its treatment and manner of treatment, the business of healing diseases and ailments and business letters pertaining to, and inof the human family, and the business of quiring into, the manner of treatment. teaching the science of healing of human

“That all such mail, letters, and commuills, and that in April, 1898, he procured nications are generally addressed and dithe incorporation of the business under the rected to the American School of Magnetic laws of the state of Missouri, under the Healing at said city, and that in many cases name of the American School of Magnetic said letters are and may be addressed to said Healing, and among the stockholders of the J. H. Kelly, secretary or treasurer or mancompany the complainant Kelly was one; ager, or to J. H. Kelly, individually, or to that large buildings were erected for such Prof. J. H. Kelly, or to J. H. Kelly or Prof. business, and large amounts expended in ad. J. H. Kelly, secretary, treasurer, or manavertising the same. The bill further averred ger of the American School of Magnetic as follows:

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 afllicted 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 mentioned, said institute was receiving in people throughout the United States and for the way of letters addressed to it or to its eign countries; and in the treatment under officers in the manner aforesaid, an average said circumstances, they have built up a of about the sum of 3,000 letters per day, large and extensive business in the way of and ever since the happening of the griev. receipts of such treatment, received through ances hereinafter mentioned there have been the United States mail, by letter, registered accumulating in said postoffice letters bepackage, and otherwise, in the nature of longing to your orator, addressed in the man. checks, drafts, and United States moneys; ner before stated, probably to the total numthat said business has grown to such an ex- ber of 25,000 letters. tent that, immediately and for a long time "That all of said letters, as your orators prior to the grievances hereinafter com- are informed and believe, are duly stamped



and ready for delivery to them but for the containing checks, drafts, money orders, or action of the postmaster and Postal Depart. money to an aggregate of at least $10,000 in ment hereinafter mentioned."

value; that these checks, drafts, etc., camo It was then averred that persons who were from various customers and clients through. prompted by assumed competitive interfer- out the United States and foreign countries, ence with their business complained to the who had all been treated and for whom the United States Postoffice Department at complainants had performed services, under Washington that complainants were not en contracts with such parties, and that the gaged in legitimate business, and therefore, sums were so sent in the respective letters on May 15, 1890, the Postoffice Department in payment for services performed and ren. made the following order:

dered to the senders respectively, all of the

senders being willing, and at all times have Postoffice Department, been willing, that their letters containing Washington, D. C., May 15, 1900. the remittances should be turned over to the It having been made to appear to the Post complainants, they making no objection or master General, upon evidence satisfactory complaint thereto. to him, that the American School of Mag. The complainants further averred that netic Healing, S. A. Weltmer, president, J. they had been informed by the defendant H. Kelly, secretary, and J. A. Kelly, at Ne that on Monday, the 28th day of May, then vada, Missouri, are engaged in conducting a coming, he intended to stamp on each and scheme device for obtaining money every one of the letters addressed to the through the mails by means of false and complainants, under any of the designations fraudulent pretenses, representations, and theretofore mentioned in the bill, the word promises, in violation of the act of Con. "fraudulent” across the face of each letter, gress entitled “An Act to Amend Certain without opening it and without knowing Sections of the Revised Statutes Relating to what such letter contained, or the nature Lotteries, and for Other Purposes, Approved or character of the contents, and that the September 19, 1900.”

defendant would then return the letter to Now, therefore, by authority vested in him the sender thereof in all cases where, from by said act and by the act of Congress en the outside of the letter or envelope, he was titled "An Act for the Suppression of Lot- able to determine from whom the same was tery Traffic through International and In received, and as to all other letters addressed terstate Commerce and the Postal Service, to the complainants, where he was unable to Subject to the Jurisdiction and Laws of the determine from the outside from whom the United States, Approved March 2, 1895,"1 the letters were sent, the defendant would stamp Postmaster General hereby forbids you to with the word "fraudulent," and send to pay any postal money order drawn to the the dead letter office of the United States order of said concern and persons, and you Postoftice Department all such letters; and are hereby directed to inform the remitter the defendant stated that he would refuse of any such postal money order that payment to deliver any further mail or letters to the thereof has been forbidden, and that the complainants or either of them, that might amount thereof will be returned upon the be received at his said postoffice addressed presentation of a duplicate money order, ap to them or either of them. plied for and obtained under the regulations Complainants then averred that if the reof the Department.

spondent were permitted to do these things, And you are hereby instructed to return and to return the letters, and refused in the all letters, whether registered or not, and future to deliver or allow complainants to other mail matter which shall arrive at your receive any letters or mail matter at the office directed to the said concern and per: postoffice at Nevada, it would work irreparsons, to the postmasters at the offices at able injury, loss, and damage to the comwhich they were originally mailed, to be de plainants, and would result in eventually

livered to the senders thereof, with the word embarrassing, crippling, breaking up, and e "fraudulent” plainly written or stamped destroying complainants' legitimate busi

upon the outside of such letters or *matter. ness; and that the complainants had no Provided, however, that where there is noth-other legal or adequate remedy by which they ing to indicate who are the senders of let could prevent the committing of the acts ters not registered, or other matter, you are and grievances complained of than by writ directed in that case to send such letters and of injunction. matter to the dead letter office, with the The bill then averred that the action of word "fraudulent” plainly written

or the defendant was based upon the order of stamped thereon, to be disposed of as other the Postmaster General, above set forth, who dead matter, under the laws and regulations assumed to act under $$ 3929 and 4041 of applicable thereto.

the Revised Statutes of the United States, 1 Ch. Emory Smith, and § 4 of an act approved March 2, 1895. Postmaster General.

28 Stat. at L. 963, 964, chap. 191.2 To the Postmaster, Nevada, Missouri. Section 3929 of the Revised Statutes is

set forth in the margin.† Since such order the defendant has refused

1 U. S. Comp. St. 1901, pp. 2686, 2749. to deliver any mail whatever to the com

* Id. p. 3178. plainants, and there had, when the bill

Sec. 3929. The was filed, as complainants aver on informa- upon evidence satisfactory to him that any per tion and belief, accumulated at the post-ison 18 engaged in conducting any fraudulent ottice at Nevada letters addressed to them lottery, gist enterprise, or scheme for the dio

Postmaster General



Section 4041 is of the same purport as spine any violation of the statute or claimed 3929,"excepting that instead of providing for violation of the statutes, but placed the same the retention of registered letters, it for absolutely in the power and control of the bids the payment by any postmaster to the postmasters and the Postoffice Department; person or company described of any postal and that the statutes vest an arbitrary dis. money orders drawn to his or its order, or cretion in the postmasters and the Postoffice to his or its favor, or to any agent of any Department or the Postmaster General to such person or company, and it provides for determine as he may see fit, whether right or the return to the remitters of the sums of wrong, the question as to who shall or who money named in those money orders. Sec. shall not have and receive mail from the tion 4 of the act (Laws of 1895, chap. 191; United States Postoffice Department, and 28 Stat. at L. 693, 694)3 amended 3929 of who shall and who shall not use the United the Revised Statutes so as to provide for the States mails, and vest in the Department or retention of all letters, instead of merely the Postmaster General if enforced, the pow. registered letters as in the original section. er to interdict and absolutely prohibit the

Before the issuing of the written order by carrying on of all commercial and business the Postmaster General prohibiting the de transactions of the country done through livery of mail matter to the complainants, the mailing system, if they see fit to do so, and pursuant to notice from the Postmaster and make the postmasters and the Postoffice General, the complainants went before that Department the sole judges in their own official at Washington and had a hearing case. before him, and gave their reasons why what The complainants then asked for an in. is 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 Gen. er hearing evidence such as in his judgment eral, and that a decree might be entered per. was 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 The defendant demurred to the complain. refused to permit the delivery of the mail, ants' amended bill (?) on the ground that and assigns as his only reason for so doing the complainants had not stated any such that it would be in violation of the order case as entitled them to any relief; (2) beof the Postmaster General, founded upon the cause the complainants had not stated any provisions of the statute already set forth. ground for equitable relief against the de

The bill then averred that the statutes fendant, and had not shown any reason why have no application whatever to the conduct an injunction should be granted. or carrying on of complainants' business, The court sustained the demurrer, and, the which is a legitimate one, and that no fraud, complainants declining to plead further, it deceit, deception, or misrepresentation of any was decreed by the court that the amended kind has ever been practised by them, and bill of the complainants was insufficient in that their customers or clients do not claim law and equity, and it was thereupon disor assert that the complainants have in any missed at complainants' cost. manner practised any fraud, deceit, or misrepresentation at any time in procuring the Messrs. James K. Harkless, John business from them, or in curing their ills O'Grady, and Charles 8.

rysler, for appel.com or diseases. Complainants further averred lants. that the provisions of the statutes above Solicitor General Richards and Mr. mentioned are in violation of the 4th, 5th, Robert A. Howard for appellee. and 14th Amendments to the Constitution of the United States, in that they undertake Mr. Justice Peckham, after making the to deprive persons of their property and foregoing statement of facts, delivered the property rights without due process of law; opinion of the court: 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 at the offices at which they were originally property, by lot, chance, or drawing of any malled, with the word “fraudulent" plainly kind, or in conducting any other scheme or de- written or stamped upon the outside of such vice for obtaining money through the mails by letters; and all such letters so returned to such means of false or fraudulent pretenses, repre

postmasters shall be by them returned to the Bentations, or promises, Instruct postmasters writers thereof, under such regulations as the at any postoffices at which registered letters Postmaster General may prescribe. arrive directed to any such person, to returning contained in this title shall be so construed all such registered letters to the postmasters as to authorize any postmaster or other per. • U. 8. Comp. St. 1901, D. 3178.

son to open any letter not addressed to himgell.

But noth



forth in the complainants' bill is justified and yet those who might deny the existence by the statutes; and (2), if not, whether the or virtue of the remedy would only differ in complainants have any remedy in the courts. opinion from those who assert it. There is

First. As the case arises on demurrer, all no exact standard of absolute truth by which material facts averred in the bill are, of to prove the assertion false and a fraud. course, admitted. It is therefore admitted We mean by that to say that the claim of that the business of the complainants is complainants cannot be the subject of proof founded "almost exclusively on the physical as of an ordinary fact; it cannot be proved and practical proposition that the mind of as a fact to be a fraud, or false pretense or the human race is largely responsible for its promise, nor can it properly be said that ills, and is a perceptible factor in the treat those who assume to heal bodily ills or ining, curing, benefiting, and remedying there- firmities by a resort to this method of cure of, and that the human race does possess the are guilty of obtaining money under false innate power, through proper exercise of pretenses, such as are intended in the statthe faculty of the brain and mind, to largely utes, which evidently do not assume to deal control and remedy the ills that humanity is with mere matters of opinion upon subjects, heir to, and (complainants) discard and which are not capable of proof as to their eliminate from their treatment what is com- falsity. We may not* believe in the efficacy monly known as divine healing and Chris- of the treatment to the extent claimed by tian science, and they are confined to prac- complainants, and we may have no sympatical scientific treatment, emanating from thy with them in such claims, and yet their the source aforesaid."

effectiveness is but matter of opinion in any These allegations are not conclusions of court. The bill in this case avers that those law, but are statements of fact upon which, who have business with complainants are as averred, the business of the complainants satisfied with their method of treatment, and is based, and the question is whether the com- are entirely willing that the money they sent plainants, who are conducting the business should be delivered to the complainants. In upon the basis stated, thereby obtain money other words, they seem to have faith in the and property through the mails by means of efficacy of the complainants’ treatment, and false or fraudulent pretenses, representa in their ability to heal as claimed by them. tions, or promises. Can such a business be if they fail, the answer might be that all properly pronounced a fraud within the stat. human means of treatment are also liable utes of the United States !

to fail, and will necessarily fail when the apThere can be no doubt that the influence pointed time arriver. There is no claim that of the mind upon the physical condition of the treatment by the complainants will althe body is very powerful, and that a hope- ways succeed. ful mental state goes far, in many cases, Suppose a person should assert that, by not only to alleviate, but even to aid very the use of electricity alone, he could treat largely in the cure of an illness from which diseases as efficaciously and successfully as the body may suffer. And it is said that na- the same have heretofore been treated by ture may itself, frequently, if not generally, "regular" physicians. Would these statutes heal the ills of the body without recourse justify the Postmaster General, upon evi. to medicine, and that it cannot be doubted dence satisfactory to him, to adjudge such that in numerous cases nature, when left claim to be without foundation, and then to to itself, does succeed in curing many bodily pronounce the person so claiming to be ills. How far these claims are borne out guilty of procuring, by false or fraudulent by actual experience may be matter of opin- pretenses, the moreys of people sending him ion. Just exactly to what extent the men- money through the mails, and then to protal condition affects the body, no one can hibit the delivery of any letters to him? The accurately and definitely say. One person moderate application of electricity, it is may believe it of far greater efficacy that an- strongly maintained, has great effect upon other, but surely it cannot be said that it the human system, and just how far it is a fraud for one person to contend that the may cure or mitigate diseases no one can tell mind has an effect upon the body and its with certainty. It is still in an empirical physical condition greater that even a vast stage, and enthusiastic believers in it may majority of intelligent people might be will. regard it as entitled to a very high posi. ing to admit or believe. Even intelligent tion in therapeutics, while many others may people may and indeed do differ among think it absolutely without value or potency themselves as to the extent of this mental in the cure of disease. Was this kind of effect. Because the complainants might or question intended to be submitted for decldid claim to be able to effect cures by rea- sion to a Postmaster General, and was it inBon of working upon and affecting the men- tended that he might decide the claim to be tal powers of the individual, and directing a fraud and enjoin the delivery of letters them towards the accomplishment of a cure through the mail addressed to the person of the disease under which he might be suf- practising such treatment of disease ?

As fering, who can say that it is a fraud, or the effectiveness of almost any particular a false pretense or promise within the mean- method of treatment of disease is, to a more ing of these statutes? How can anyone lay or less extent, a fruitful source of differdown the limit and say beyond that there ence of opinion, even though the great major. are fraud and false pretenses? The claim of ity may be of one way of thinking, the effi. the ability to cure may be vastly greater cacy of any special method is certainly not than most men would be ready to admit,'a matter for the decision of the Postmaster

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