Tourlanes Publishing Co. v. Summerfield

231 F.2d 773, 98 U.S. App. D.C. 20

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 29, 1956
• Docket: Nos. 12884, 12969, 13022
• Status: Published

Opinion

PER CURIAM.

The factual situation here presented is generally similar to that in Summerfield v. Sunshine Book Co., 1954, 95 U.S.App. D.C. 169, 221 F.2d 42, certiorari denied 1955, 349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253. The publications issued by Tour-lanes Publishing Co. include a tax guide and other innocuous matter, in addition to certain pamphlets or magazines which the Post Office Department found to be obscene. An order was issued by that Department, under 39 U.S.C.A. § 259a, directing the local postmaster to refuse to deliver mail to Tourlanes. Tourlanes applied to the District Court for relief. Judge Youngdahl, relying on the Sunshine case, gave judgment directing that the administrative order be amended “to cover only those publications which have been found to be obscene.”¹ The Government appealed from the portion of the judgment requiring modification of the order (No. 12,969 in this court). Tour-lanes cross-appealed from the refusal of the court below to void the order in its entirety (No, 13,022). However, during oral argument counsel for Tourlanes stated that he would not press before this court the points raised on his cross-appeal if the relief granted below requiring modification' of the order was ultimately sustained.

On the. authority of Sunshine, we affirm in No. 12,969 the judgment of the District Court. On the strength of the statement of counsel for Tourlanes, and in order to avoid reaching the difficult constitutional questions raised by Tourlanes’ cross-appeal, we dismiss the cross-appeal without considering its merits.²

So ordered.

1 . We construe the order of the District Court as in effect forbidding the Post Of..fice Department to enforce the latter’s '' order in its present form, but allowing enforcement if it is appropriately modi- . fied. We think that was the real intent of the court’s order, and the' parties evi- ' dently so regarded it;

2 . The appeal hy Tourlanes from the denial of a preliminary injunction (No. 12,881) has become moot and will he dismissed.