BARR, District Judge
(after stating the facts as above). It will be seen from this statement of the pleadings that it is nowhere alleged that the complainant is in fact engaged in conducting a lottery scheme for the distribution of money by lot or chance, through the mails, in violation of the acts of congress, nor that any of the mail which has been seized by the defendant for the three months prior to the filing of the bill is in fact nonmailable. The defense rests entirely upon the orders issued by the postmaster general, in which it is recited that it [477]*477has been made to appear to him upon satisfactory evidence that said complainant is conducting a lottery for the distribution of money by lot or chance, through the mails, in violation of the acts of congress. The questions presented, therefore, are exceedingly important, and one of them, we think, a new one.
The colonies, prior to the old confederacy, or the adoption of the present constitution, exercised the right as a governmental one of establishing post offices and post roads. As early as 1692, in the reign of William and Mary, the colony of Virginia fixed by law the rate of postage to be charged for mail matter, a patent having been issued to Thomas Neale in that reign granting to him for a period of 120 years the right to establish and maintain a postal service in the colony of Virginia upon rates to be thereafter fixed by the colony. The act of 1692 established the postal rates, and made the postal service exclusive, except that the right to send by a friend or private person, without compensation, mail matter, was reserved. The colony also required of the patentee, Thomas Neale, that he should establish in each countv one post office at least. See 3 Hen. St. at Large, p. 112. Under the old confederation, congress was invested with the sole and exclusive power of establishing and regulating post offices from one state to another throughout the United States, and exacting such postage on the papers passing through the same as might be requisite to defray the expenses of said office. When our present constitution was adopted, this power was extended, and the power of establishing post roads as well as post offices was given. In the discussion of the powers granted to the federal government this power was regarded as a very harmless one. “The power,” says the Federalist, “of establishing post roads, must in every view be a harmless power, and may perhaps by judicious management become productive of great public convenience. Nothing which tends to facilitate the intercourse between the states may be deemed unworthy of the public care.” This power, however, has proven to be a most important one, and has become an indispensable part of the social and commercial life of the nation. Judge Story wrote more than 60 years ago:
“The post-office establishment has already become one of the most beneficent and useful establishments under the national government. It circulates intelligence of a commercial, political, intellectual, and private nature with- incredible speed and regularity. It thus administers in a high degree to the comfort, the interests, and the necessities of persons in every rank and station of life. It brings the most distant persons and places, as it were, in contact with each other, and tiras softens anxieties, increases the enjoyments, and cheers the solitude of millions of hearts. It imparts a now influence and impulse to private intercourse, and by a wider dliTusion of knowledge enables political rights and duties to be performed with more uniformity and sound judgment. It is not loss effective as an instrument of government in its own operations.” 3 Story, Const. § 1120.
When this was written, the postal establishment of the United States was comparatively small, costing less than $2,000,000 a year,' and having less than 8,000 post offices. Now it has been extended and perfected so that not only the convenience and comfort of the citizens is dependent upon it, but the business interests of thousands o? citizens. This power, having been exercised by the federal govern[478]*478ment, is exclusive of the power of the several states to establish any postal system, and has been by law made a monopoly excluding all private individuals from establishing competing or postal systems in the United States. See Rev. St. c. 9, tit. 46. As a necessary incident to this power it is now settled that congress has a right to designate what mail matter shall be carried through the mails, and how. This right of designation of necessity involves the right to exclude from the mails by declaring what postal matter is nonmailable, and the courts have sustained the exercise of what may be called the police power of excluding from the mails that which may be declared immoral or injurious to the morals of the people of the several states, and thus the power of congress to exclude from the mails all matter concerning lotteries, and all mail matter concerning fraudulent schemes, has been sustained. See Ex parte Jackson, 96 U. S. 727 ; In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374; Horner v. U. S., 143 U. S. 571, 12 Sup. Ct. 522. In Ex parte Jackscn the supreme court say:
“The power possessed by congress embraces tbe regulation oí tlie entire postal system of the country. The right to designate what shah be- carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from a want of power in congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with the rights reserved to the people of far greater importance than the transportation of the mail. In their enforcement a distinction is to be made between different kinds of’mail matter, between what is intended to be kept free from inspection, such as letters and sealed packages subject to letter postage, and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter purposely left in condition to be examined.”
While tbe supreme court bas thus indicated tbe general power of congress to determine what mail matter shall be excluded, it bas not as yet, we think, decided that congress bas tbe power to delegate to an executive officer tbe'power to determine tbe person or persons who shall be excluded from the right of sending and receiving mail by the postal service. If we understand tbe trend of tbe decisions, it has not yet decided that either congress or an executive officer bas tbe right, under this power, to exclude anjr particular person or any class of persons, citizens of the United States, from tbe benefits arising from tbe use of the postal service of tbe United States. It is true, tbe circuit court of appeals of this circuit have affirmed tbe right of the postmaster general to exclude the Enterprise Savings Association and tbe officers of that association from tbe use of tbe money orders and registered letters under the authority' of tbe act of 1890. Tbe postmaster general bad under said act declared that said association was engaged in conducting a lottery or a similar enterprise for tbe distribution of money or personal property by lot or chance through tbe mails in viólátion of tbe provisions of section 3894, Rev. St., as amended; but, as this was a corporation presumably organized and conducted for the ■purpose of carrying on a business which was declared to be nonmailable, it may be fairly said that this was a mere mode of excluding postal matter from tbe mail which Was nonmailable. Tbe order of the postmaster general, however, under the then law, only applied to money orders and tbe registered mail. Judge Lurton, in delivering [479]*479the opinion of the court (Association v. Zumstein, 15 C. C. A. 153, 67 Fed. 1000), indicated that there may he a difference between the ordinary mail and the postal service by money orders and registered mail, saying:
“Neither of these departments of the postal service are essential to the ordinary nse of the mail, and congress has reposed in the postmaster general an unlimited discretion as to when and where lie would afford the facilities of this depart - meni. We see no reason why congress may not confer upon him authority to prevent the use of these facilities by any person engaged In using them for the propagation of any business deemed by it vicious, and not entitled to the use of such special facilities in the extension and conduct of such schemes.”
This decision would seem to decide that the order of the 12th of February, 3896, was valid, and authorized the defendant to retain mail matter coming to the Southern Mutual Investment Company and its officers.
In the order of the 17th of February, 1896, of the postmaster general, he has excluded the complainant, a citizen of the United States, from the use of the mails in receiving any mail matter of any kind oh description, and this exclusion is intended to deprive, and does in fact deprive, him of any benefit of the postal service of the United States, so far as receiving mail is concerned. The order does not confine this exclusion to matter which is declared nonmailable under the act of congress, or that which the defendant may believe from inspection to be nonmailable under the law, but excludes him from receiving mail of any kind or description. If the complainant has a right to receive mail which is mailable, and that right is in the nature of a property right, then certainly he has not in this case been deprived of such right by due process of law. If, however, the use of the postal service of the United States by a citizen thereof is a mere privilege or gratuity which can he given or refused by those in charge of the postal service, then he has no right to invoke the protection of the fifth, amendment of the constitution. As we understand, this right of seizure and detention of the mail of the complainant under the order of an executive officer is justified upon the theory that all of this correspondence through the mails concerns matter for the use of which the mail has been prohibited. It will be observed that this order deprives all correspondents with the complainant of their right to the use of the mails of the United States for correspondence with him, so that the order assumes not only that he is engaged in conducting a lottery enterprise, but that all persons who correspond with him are thus engaged, and to that extent deprives other persons who are presumably innocc-nt from the use of the mail. If may, in this connection, be admitted that the government of the United States has heretofore1 exercised the power, and has the constitutional right, by its executive1 officers or agents, to seize a thing which is being used in violation of law. In such cases the thing seized is treated as guilty. Thus, in the revenue law, illicit distilleries are seized, if found in operation, and destroyed if under 9500 in value, with a provision that:, if shown not to be guilty, the owners thereof may have compensation therefor; if over 9500 in value, proceedings are taken in the combs against the thing seized, and, if found guilty, forfeited by the owner and condemned. [480]*480But it would be quite a different exercise of power if congress should authorize the secretary of the treasury or the commissioner of internal revenue, after being satisfied by evidence that a particular citizen was guilty of carrying on the business of illicit distilling, that thereafter the several collectors should be directed that that particular citizen should not be allowed to have the preliminary surveys or to execute the bond which would be necessary for him to lawfully carry on the business of a distiller. So in the postal service, the authority of congress to have seized nonmailable matter that may come into the mails, whether that matter be so because of its physical condition or moral character, may be conceded; but we submit that it is the exercise, not of an executive power, but of a judicial one, for an executive officer to exclude a citizen from the use of the mail because he, in the opinion of the executive officer, at some time previously or then had been or \\ a •; violating the law by using the mail in an improper manner by sending nonmailable matter, unless this right to use the mail be a mere privi • lege or gratuity, which may be given or-refused at the will of those who control the postal service.
It is not to be overlooked that the establishment of the postal service and its operation is the exercise of a governmental function; that the money which pays for this perfect postal system is raised by the postage charged, and all deficits paid out of the common treasury of the United States; that it is a monopoly which excludes not only the states, but all individuals, and that it has become a part 'of the business operations of the citizens of the United States, and an indispensable part in some kinds of business; and that this right to the use of the mails by sending and receiving mail is a most valuable one to the citizens, and one the depriving of which would destroy the business and the living of -very many of the citizens of the United States. - This postal monopoly, if granted and exercised by a citizen or a corporation, would, from the fact of its being a monopoly, make it imperative that all persons who paid the postal rates and conformed to- the reasonable regulations of the postal service should have a common right to the use of the mails, and that because of the fact of the monopoly thus granted. This right would be protected in the courts if the citizen or the corporation controlling the postal service should attempt to deprive him of it. If the United States government should hereafter become the owner of all the transportation lines in the United States, and thus the common carrier of the nation, and by law exclude all others from becoming common carriers, it would seem to follow inevitably that the citizens of the United States would have a common right to travel and ship freight over the lines thus owned and operated by the United States, and that all of its citizens, subject to such general laws and regulations as to rates and the operation of the lines as might be enacted and established, would have this common right, and that such a right would be readily recognized as a property right in the citizen, and one of which a particular citizen could not be deprived except by due process of law. We think the right to the use of the mails, though in degree much less valuable than the use of the transportation lines, would be equally a property right, and one which could not be taken away except by due process of law. Mr. Webster, [481]*481in the Dartmouth College Case, 4 Wheat. 518, defined “the law of the land,” which is but another expression for “due process of law,” thus:
•‘By the law oí the land is most clearly intended the general law, — a law which hears before it condemns; which proceeds upon inquiry, and renders juiigmcm only after trial. The meaning is that every citizen should hold Isis life, liberty, and property and immunities under the protection of the general rules whidh govern society. Everything which may pass under ihe form of enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reverting judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures in all possible forms would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature.”
Mr. Cooley thinks that this definition of Mr. Webster is quite accurate as applied to the judicial department of the government, but probably is not broad enough as applied to all the departments, and expresses the opinion that the definition of Judge Johnson in the case of Dank of Columbia v. Okely, 4 Wheat. 235, as more comprehensive and more" accurate. Justice Johnson savs:
“As to the words from Magna Charta incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”
If we are correct in concluding that the use of the postal service of the United States by a citizen thereof is a right in the nature of a property right, then it must follow that the order of the 17th of February, 1886, of the postmaster general, which finds complainant guilty of a violation of the postal laws, and prohibits to him the; use of the postal service of the United States as far as the receiving of mail is concerned, during his pleasure, is not due process of law within the constitutional meaning. In this connection we think the fourth amendment to the constitution is also applicable, which provides that “Ihe right of the people to be secured in their persons, houses, papers, and effects against unreasonable search and seizures shall not be violated, and no warrant shall issue but upon probable cause supported In oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” The supreme court, by Justice Field, in the case of Ex parte Jackson, says:
“A distinction is to be made between different kinds of mail matter, between, wliat is ini ended to be kept free from inspection, such as letters and sealed packages subject to letter postage, and what Is open to inspection, such as newspapers, magazines, pamphlers, and other printed matter purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as it they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secured in their papers against unreasonable search and seizure extends to their papers thus closed against inspection wherever they may be; whilst in the mail they can pnly be opened and examined under like warrant, issued under similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of congress can place in the hands of the officials of the postal [482]*482ssérviee any authority tó invade the secrecy of letters and such sealed packages in the mail, and aE regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the constitution.”
Whether we regard these letters, which were sent through, the mail properly addressed, and in the hands of the defendant, as belonging to the sender or to the complainant, to whom they were sent, they should be and are constitutionally equally exempt from seizure, except under this provision of the constitution. When, therefore, sealed letters and packages were seized by the defendant under the order of February 17, 1896, without warrant, and marked “Fraudulent,” and returned to the dead-letter office, to be there disposed of as other dead matter under the laws and regulations, we submit that this provision of the constitution has been violated. In the case of Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, the supreme court decided that the fifth section of the act of June 22, 1874, entitled “An act to amend the custom revenue laws,” etc., which section authorized a court of the United States, in revenue cases, on motion of the government’s attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of the complainant be taken as confessed, to be unconstitutional, because within this provision of the constitution. The opinion of the court, delivered by Justice Bradley, goes elaborately into a discussion of this subject, and holds that, although this act did not authorize the actual seizure of the private books, invoices, and papers of the defendant, yet it required him to produce in court these papers under a penalty of a confession of the allegations of the information, which was within the spirit of the constitutional inhibition, and was. in the constitutional sense, a search and seizure of the papers without warrant. It is true that Justice Miller and Chief Justice Waite dissented from this construction of this constitutional provision, and held that in fact there was no search and no seizure authorized by the law. They concur in the conclusion of the court because of the fifth amendment to the constitution, which declares that no one shall be compelled in a criminal case to be a witness against himself. Still we think the case is in point here, whichever view is the correct one, as there clearly is in fact a detention and seizure of the mail, and, instead of delivering it to the complainant, it is returned to the sender in one case and in the other to the dead-letter office, there to be opened and destroyed or otherwise disposed of as might be ordered. If the detention and seizure was lawful, there is nothing to prevent these letters and sealed packages from being used as evidence either against the complainant or his correspondents.
The remaining question is whether or not the complainant’s bill for an injunction will lie. It is the settled doctrine that the courts cannot control or interfere with the judgment or discretion of an executive officer, except where the duties to be performed are purely ministerial. See Marbury v. Madison, 1 Cranch, 137; McIntire v. Wood, 7 Cranch, 504; Kendall v. U. S., 12 Pet. 524; Decatur v. Paulding, 14 Pet. 497; Commissioner of Patents v. Whiteley, 4 Wall. 522; Gaines v. Thompson, 7 Wall. 347; U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. 12; [483]*483U. S. v. Windom, 137 U. S. 636, 11 Sup. Ct. 197. Or, as we think, where the statute under which he acts is unconstitutional. In this case no objection has been made, either by motion, plea, or answer, to the jurisdiction of the court. The judiciary act, conferring jurisdiction on the circuit court, gives that court jurisdiction of all cases arising under the laws and constitution of the Uni ted States which, exceed in value §2,000. It must be conceded, notwithstanding there has been no objection to the jurisdiction of the court, that the court cannot grant relief under the motion for temporary injunction if it is without jurisdiction. An action at law would be ineffectual, and could not be sustained in this case by the complainant for the recovery of this mail, because no description could be given of the mail thus seized and detained, and because of the multiplicity of suits that would necessarily follow, and the utter inadequacy of a common-law remedy. It is conceded to the broadest extent that, if the postmaster general had the constitutional right to not only declare that the complainant was engaged in conducting a lottery for the distribution of money ox-other personal property by lot or chance through the mails, but thereupon to prohibit him from 1lie use of the mails absolutely, then this court cannot revise the postmaster general’s discretion and judgment under said statute; but we submit that, if he had no constitutional right to exercise the judgment and discretion which he has exercised in thus condemning the plaintiff to a forfeiture of the use of the; postal service of the United ¡States, this court can, by proper proceeding, so declare. We fully recognize that the court, in taking jurisdiction, is not asked either to compel by mandatory injunction or by restraining order the performance of a ministerial duty. We fully recognize the settled doctrine as announced in the case of Gaines v. Thompson, 7 Wall. 347, and the various other cases therein reviewed and those since that time, as well as (he authority of the case of Association v. Zumstein, 15 C. C. A. 153, 67 Fed. 1000, but we, however, submit that, if correct in our view, congress had no constitutional right to give to the postmaster general the authority thus to prohibit to a citizen of the United Hiatos, without notice and without trial, the use of the postal service of the United States, at his pleasure, because he became satisfied that that citizen had been or was engaged in conducting a lottery or similar enterprise. Chief Justice Marshall, in the case of Marbury v. Madison, 1 Cranch, 137, we think indicated clearly in his opinion that if the authority under which the executive; department or an officer thereof was acting was unconstitutional, the judiciary could so declare in a proper case brought before it, which affected the private rights of a citizen. In (he case of Commerford v. Thompson, reported in 1 Fed. 417, and in Bank v. Merchant, reported in 18 Fed. 841, both Justice Brown and Judge Pardee sustained a hill to enjoin a postal officer of the United States. In the first cast1, Justice Brown (then District Judge Brown), though sustaining the jurisdiction, «-fused the injunction, because the answer, the allegations of which were admitted, alleged that the mail which had been detained and seized was concerning lotteries; and in the case of Bank v. Merchant, Judge Pardee granted the injunction. In the ease of Noble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct. 271, a bill for an in[484]*484junction against the secretary was recognized as the proper remedy. The lower court decreed an injunction, which was affirmed by the supreme court. There the secretary of the interior, under an act of congress which gave him the right to designate a railroad, and grant to that railroad a right of way over the public lands, had exercised the right, but it was admitted in the pleadings that the railroad was not engaged in the business of a common carrier of passengers and freight, but simply in the transportation of logs for the private use and benefit of the persons composing the logging company, and carrying on a private business. Subsequently the successor of the then secretary of the interior, Mr. Vilas, being satisfied that the right of w7ay should not have been given to this private railway, revoked the order of his predecessor. The logging company filed a bill in equity to enjoin the secretary of the interior and the commissioner of the general land office from executing the order revoking the approval of the complainant’s maps and right of way over the public lands, and also from ■molesting it in the enjoyment of such right as was secured by said previous order under the act of congress. The supreme court, by Justice Brown, in reviewing and setting out the doctrine and the distinction between the power of courts to require of an executive officer the execution of a merely ministerial duty and those duties in which he was given an executive discretion, say:
“We have no doubt the principle of these decisions applies to a case wherein Hi is contended that the act of a head of a department, under any view that can be taken of the facts that were laid before him, were ultra vires, and beyond the scope of his authority. If he has no power at all to do the act complained of, he is as much subject to an injunction as he would be to a mandamus if he refused to do an act which the law plainly required him to do. ' As observed by Justice Bradley in Board of Liquidation v. McComb, 92 U. S. 531: ‘But it has been well settled when a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other.' ”
And the lower court’s decree was affirmed upon the distinct idea that the subsequent secretary of the inferior had no power over the matter, after a careful consideration and discussion of the finality of the act of the previous secretary. And in the case of New Orleans v. Paine, 147 U. S. 264, 13 Sup. Ct. 305, the court, by Justice Brown, .say:
“In Noble v. Railroad Co. (decided at the present term) 147 U. S. 165, 13 Sup. Ct. 271, we had occasion to examine the question as to when a court was authorized to "interfere by injunction with the action of a head of a department, and came to the conclusion it was only where, in any view of the facts that could be taken, such action was beyond the scope of his authority. If he were engaged in the performance of a duty which involved the exercise of discretion or judgment, he was entitled to protection from any interference by the judicial power. In that case it ajjpeared that the only remedy of the plaintiff was to enjoin the secretary of the interior from revoking his approval of a certain map, which operated as a grant of land. His contemplated action amounted in fact to the cancellation of a land patent.”
[485]*485These cases, we think, are a distinct ruling that a bill of injunction is the proper remedy, if in law tire authority exercised by the postmaster general is beyond his constitutional authority. Any other view than herein expressed would leave a citizen without remedy, and this perfect and magnificent postal system of the United States subject as to its use to the arbitrary will of the postmaster general. If he can decide finally, without court or jury or other* legal trial, whether a business which is being carried on is within the statutory prohibition, and also that a certain citizen or citizens are engaged in that business, and, having thus decided, can prohibit absolutely by general order the use of the mails and postal service of the United States, not only in that business, but by such citizen or citizens, then, indeed, as to this use, are the citizens of the United States outside of the guaranties of the constitution.
As already indicated, the principles announced by .the circuit court' of appeals In the case of Association v. Zumstein, and which are binding upon this court, prevent the granting of motion Mo. 1 for temporary injunction against the defendant, McOhesnev, restraining’ Mm from withholding any mail matter which comes to him as postmaster under the order of February .12, 1896, addressed to complainant as secretary of the Southern Mutual Investment Company; but motion Mo. 2, for a temporary injunction to restrain the defendant, MeChesney, as postmaster, from withholding and refusing to deliver to complainant letters directed to him upon which there are no words, language, or indications that they are addressed to said Hoover as an. officer of or connected with the Southern Mutual Investment Co., should be sustained, upon the execution of a proper bond in the penalty of S-. The said opinion of the circuit court of appeals is decisive, we think, against the exceptions to the answer which are based upon the contention that the order of the postmaster general of the 12th of February, 1896, is invalid, and beyond Ms constitutional authority; but exceptions Mos. 4 and 8, which relate to the order of the 17th of February, 1896, should be sustained, and so much of the other exceptions as relate to said order of February 17,1896, and said mo ¡Ions and exceptions, will be sustained, and overruled as herein indicated.