Tourlanes Publishing Company v. Arthur E. Summerfield, Postmaster General of the United States, Arthur E

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

TOURLANES PUBLISHING COMPANY, Appellant, v. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellees. Arthur E. SUMMERFIELD, Postmaster General of the United States, et al., Appellants, v. TOURLANES PUBLISHING COMPANY, Appellee. TOURLANES PUBLISHING COMPANY, Appellant, v. Arthur E. SUMMERFIELD, Postmaster General of the United States et al., Appellees.

Nos. 12884, 12969, 13022.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 31, 1956. Decided March 29, 1956.

[ 98 U.S.App.D.C. 21 ] Mr. Irving R. M. Panzer, Washington, D.C., for appellant in Nos. 12,884 and 13,022 and appellee in No. 12,969.

Mr. William F. Becker, Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., and Lewis Carroll, Asst. U.S. Atty., were on the brief, for appellees in Nos. 12,884 and 13,022, and appellants in No. 12,969.

Mr. Oliver Gasch, Principal Asst. U.S. Atty., also entered an appearance for appellees in No. 12,884 and appellants in No. 12,969.

Before EDGERTON, Chief Judge, and WASHINGTON and BASTIAN, Circuit judges.

PER CURIAM.

1

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 Tourlanes 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). Tourlanes 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.

2

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 [ 98 U.S.App.D.C. 22 ] in order to avoid reaching the difficult constitutional questions raised by Tourlanes' cross-appeal, we dismiss the cross-appeal without considering its merits. 2 3

So ordered.

1

We construe the order of the District Court as in effect forbidding the Post Office Department to enforce the latter's order in its present form, but allowing enforcement if it is appropriately modified. We think that was the real intent of the court's order, and the parties evidently so regarded it 2

The appeal by Tourlanes from the denial of a preliminary injunction (No. 12,884) has become moot and will be dismissed