is not subject to the penalty imposed by the nineteenth section of the act of congress of March 3, 1825. United States v. Pomeroy,* 3 N. Y. Leg. Obs., 143.

§ 29. If a passenger in a railroad car or steamboat carry letters over a post-road, without the knowledge of the proprietor of such car or steamboat, or of any of his servants, such proprietor is not liable under the nineteenth section of the act of March 3, 1825, and the proprietor of the car or steamboat not being liable under the nineteenth section, the sender of the letters is subject to no penalty under the twenty-fourth section of the same act; but if a party be openly engaged in carrying letters over the post-roads of the United States, and the railroad company be notified of this fact by one of the agents of the postoffice department, and by public advertisement, such company will be liable to the statute penalty for carrying such party carrying letters. And the company being thus liable under the nineteenth section, the person employing such party as agent to carry letters becomes liable under the twenty-fourth section. United States v. Hall,* 9 Am. L. Reg., 232.

§ 30. Private letter carriers. The third section of the statute of 1827, which enacts that no person shall set up any foot or horse post for the conveyance of letters or packets upon any post-road, cannot be construed so as to prohibit the setting up of a post by railroad car or steamboat. United States v. Kimball,* 7 Law Rep., 32.

§ 31. The acts of congress of March 2, 1827, section 3, forbidding all persons other than the postmaster-general, or his agents, from setting up any foot or horse post for the conveyance of letters, etc., upon any post-road then or thereafter established, and of March 3, 1845, section 9, forbidding the establishment of any private express for the conveyance of letters, etc., from a city, town or place to another city, town or place, between which the mail is regularly transported, prohibit the business of private letter carriers on mail-routes, but not that of private letter carriers within the limits of a post-town. United States v. Kochersperger,* 9 Am. L. Reg., 145.

§ 32. A portion of the citizens of Brooklyn, unwilling to be served by the legal carrier, and desirous to appoint one of their choice, associated themselves together, and gave a standing order to the postmaster that he should deliver all their letters and papers to a person by them designated, which the postmaster refused to do. Held, that such combination on the part of the citizens was a palpable effort to evade the law and pervert it from the purpose for which it was made; and that although any man is at liberty to have his mail delivered at the office to himself, his family, clerk, servant or friend, a person who intends to make the carrying of letters his regular business, or part of his business, and to do it periodically, for hire, in opposition to the public carrier, is legally incapable of receiving authority to take letters out of the postoffice for that purpose, no matter what credentials he may have; whether it be a joint order from all his employers, or a separate order from each one; a permanent standing order, or an order renewed every day. Letter Carriers,* 9 Op. Att'y Gen'l, 161. § 33. Franking privilege.— Letters from the proper officers of banking associations employed as depositaries of public moneys, under the fifty-fourth section of the national currency act of February 25, 1863, upon business arising from their employment as depositaries, although certified by them to be on official business, are not transmissible through the mail, free of postage, to the treasury department, under the act to amend the laws relating to the post office department, approved March 3, 1863 (12 Stats., 701). National Banking Associations,* 11 Op. Att'y Gen'l, 23.

§ 34. The heads of bureaus in the executive departments may frank official papers for transportation in the mails, free of postage, under the postal act of March 3, 1863 (12 Stat., 708), by the impression of a stamp, or by the use of an engraved signature, as well as by writing the name. The Franking Privilege,* 11 Op. Att'y Gen'l, 31.

§ 35. The head of a bureau, having the right to frank packages for free transmission by mail, by the use of a stamp, cannot, for the purpose of facilitating the prompt transaction of public business, delegate the power to another, who under his direction shall stamp documents with his engraved frank; such stamping must be done by his own hand. Exercise of the Franking Privilege,* 11 Op. Att'y Gen'l, 35.

§ 36. Postal money-orders.- It is not the intent of the act of June 8, 1872, that the remitter of a postal money-order should be able to revoke the order or demand back his money against the objection of the payee. He cannot obtain repayment of the money deposited unless he produces the order. The payee of the money-order is entitled to the money upon demand, and upon complying with the statutes and regulations of the postoffice department, notwithstanding the protest of the remitter, and the remitter of the money-order cannot forbid the payment of it by any notice to the office at which it is made payable before it has been paid. Money Orders,* 14 Op. Att'y Gen'l, 119.

§ 37. Obstruction of vehicle carrying mail. The right of the United States to have the mails carried over roads recognized as mail-routes is paramount to all other claims. Hence, a person, although holding a writ of possession from a state court against a railroad com

pany, cannot obstruct the passage of a train carrying mails over the land thus placed in his possession without making himself liable under section 3995, Revised Statutes United States. United States v. De Mott, 3 Fed. R., 478.

§ 38. Adoption of route.-To "adopt" a route for the transportation of the mail means to take the steps necessary to cause the mail to be transported over that route. That is the sense of the resolution of congress of May 24, 1828 (4 Stats. at Large, 322). Rhodes v. United States,* Dev., 47.

§ 39. What constitutes mailable matter.- A written order for merchandise, folded in the form of a letter, but not sealed, is mailable matter within the meaning of the act of March 3, 1815, and the conveyance of such an order by the steward of a steamboat subjects the offender to the penalty prescribed by such act. United States v. Bromley,* 12 How., 88. $40.

dutiable articles in mails.- It is unlawful to transmit from a foreign country a dutiable article by mail in a sealed envelope. And though neither the sender nor receiver had any intention to defraud the government of its revenue, such article upon its arrival is liable to seizure by the customs officers; and upon such seizure the owner can only redeem it by payment of the appraised value as prescribed by the statute. Von Cotzhausen v. Nazro,* 8 Rep., 645.

§ 41. Letter postage-What constitutes a newspaper.- A publication to be a newspaper, within the meaning of the thirteenth section of the act of 1825, concerning the general postoffice, must be published for everybody's use, in numbers, with regularity, or something approaching it; must convey news, not mere dissertation and discussion, or literary and poetical miscellanies; must be in sheets and in a cheap form. Postage,* 4 Op. Att'y Gen❜l, 10.

§ 42. Under the act of March 3, 1845, establishing rates of postage for newspapers, magazines, etc., to entitle any publication to the privilege of a newspaper, its main object and purpose must be the dissemination of intelligence of passing events; it must be issued in numbers consisting of not more than two sheets, the superficies of which do not exceed one thousand nine hundred inches, at short stated intervals of not more than one month. The main object and purpose of the publication must be to disseminate intelligence of passing events; but the employment of a portion of its columns in publishing essays or compositions of a moral, political or literary character is not inconsistent with this leading and general object. Rates of Postage,* 4 Op. Att'y Gen'l, 407.

§ 43. what marks on newspaper wrapper subject it to.- A letter or initial upon the wrapper of a newspaper is not a writing or memorandum" within the meaning of the act of March 3, 1825 (4 Stats. at Large, 105, 111), authorizing postmasters to collect letter postage on newspapers within which, on which, or on the wrapper of which, any writing or memorandum appears besides the name of the person to whom it is directed. And a postmaster who detains such newspaper, refusing to deliver it up to the person to whom it is directed, until full letter postage is paid, is liable in an action of trover in a state court for the conversion to which such unlawful detention is equivalent. Teal v. Felton, 12 How., 284.

$ 44. Remedy to compel delivery of letters.- An injunction will not be granted to prohibit a postmaster from refusing to deliver letters, and other matter addressed through the mail, on which has been prepaid postage, to the party to whom they are directed. The proper remedy is by mandamus or replevin. Boardman v. Thompson,* 12 Fed. R., 675.

§ 45. Owner of bonds stolen and sent through the mail may maintain replevin, when.Bonds belonging to plaintiff were stolen from a bank and deposited in a postoffice for transmission through the mails; but as the addressee could not be found they were returned, and the postmaster, under instructions from the postoffice department, detained them, subject to such legal action as might be taken by the bank. Held, that as the bonds were not, while thus held by the postmaster, ordinary mail matter for transmission by mail, they were subject to replevin at the suit of plaintiff. Wylie v. Pearson,* 11 Fed. R., 61.

§ 46. Privilege of writer to reclaim letter in transitu.-B., a member of the firm of P., B. & Co., of San Francisco, applied to the postmaster-general for an order to the deputypostmaster of the city of New York, that all the correspondence of the firm in San Francisco addressed to their several agents in the Atlantic and western states, and daily expected in New York by the steamer bringing the mails from San Francisco, should be delivered to him, B. Held, that the writer of a letter has no such general property in it as to entitle him in every case to reclaim it while in transitu. Stoppage of Letters,* 7 Op. Att'y Gen'l, 76.

§ 47. It seems that cases may occur in which the postmaster-general may lawfully authorize the writer of a letter to reclaim it in transitu, upon satisfactory proof that he is the writer of it, and that adequate legal cause of stoppage exists; but if this can be done, it must be upon specific proof applied to the particular emergency. Ibid.

§ 48. Suppression of letters calculated to cheat and defraud the public, and of objectionable mail matter.-In the enforcement of the regulations of congress, as to what shall constitute mail matter, and what shall be excluded therefrom, a distinction is to be made be

tween 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 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 if they were retained by the parties forwarding them in their own domiciles, and can only be opened and examined under like warrant issued upon 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. The constitutional guaranty against unreasonable searches and seizures extends to such letters and sealed packages in the mails. Ex parte Jackson, 6 Otto, 727; 17 Alb. L. J., 448; 10 Ch. Leg. N., 307.

§ 49. Although regulations excluding matter from the mail, cannot be enforced in a way which would require or permit an examination into letters or sealed packages, subject to letter postage, without warrant issued upon oath or affirmation, in the search for prohibited matter, they may be enforced upon competent evidence of their violation obtained in other ways, as from the parties receiving the letters or packages, or from their agents or others cognizant of the facts. And as to objectionable printed matter which is open to examination, the regulations may be enforced in a similar way by the imposition of penalties for their violation through the courts; and in some cases by the direct action of the officers of the postal service, as where the object is exposed and shows unmistakably that it is prohibited, as in the case of an obscene picture or print. Ibid.

§ 50. Where parties are engaged in practicing a gross fraud upon the public through the agency of the mails, it is competent for the postmaster-general to adopt measures or issue instructions to the end of preventing the postal service from being made a means for the accomplishment of the unlawful purpose; but to justify the adoption of preventive measures, the evidence of the dishonest scheme and fraudulent intent ought to be very clear. A lottery firm doing business, under the name of Murry, Eddy & Co., at Covington, Kentucky, a town on the Ohio river, directly opposite Cincinnati, received mail and had a box in the postoffice at both these points. A new lottery firm was organized in the latter place under the same style, Murry, Eddy & Co., which issued fac-similes of the circulars and tickets of the other firm, for the evident purpose of deceiving the public. As to whether the department could withhold letters addressed to Murry, Eddy & Co., directed to the proper box of the Cincinnati firm, held, that the department could not interfere with the delivery of letters merely with a view to protect one party from damage consequential upon the use of its name, style or trademark; but that such interference was warranted, if necessary for the protection of the public. Case of Murry, Eddy & Co.,* 12 Op. Att'y Gen'l, 399.

§ 51. The postoffice department has the power to make regulations which will prevent the service from being prostituted to purposes of fraud, and hence may order the non-delivery of letters addressed to any person under a name which is known to have been assumed as part of a system intended to cheat and defraud the public. But the fraudulent intent ought to be very clear, for the department is not invested with any authority to carry on an extended inquiry into the private affairs of persons who receive letters by mail. The mere misnomer of a man is not sufficient grounds for saying that the name is fictitious; neither is a firm an imaginary one because the style of it has no reference to the names of its members; nor can a letter be stopped on the sole ground that it is addressed to a person whose employment is immoral. Case of Emory & Co., * 9 Op. Att'y Gen'l, 454.

§ 52. Mail of debtor not subject to attachment.- A postmaster has no authority to comply with the demand of the sheriff for the delivery of letters to him, upon an attachment levied at the suit of creditors of the party to whom the letters are addressed. Delivery of Letters, * 12 Op. Att'y Gen'l, 136.

§ 53. Adverse claimants, rights of to mail.- Letters addressed to business firms that had gone out of existence were claimed, at their destination, by different persons who once composed such firms. The postmaster-general having given to the local postmaster having custody of the letters, directions upon the subject which were not satisfactory to some of the contending parties, a suit was instituted in the state court to determine the rights of the parties, and an order obtained enjoining the postmaster from delivering the letters in accordance with the instructions of the postmaster-general. The attorney-general advised that the postmaster be directed to retain the letters, and to deliver them to the parties who should be finally ascertained by the court to be legally entitled to them. Delivery of Letters,* 13 Op. Att'y Gen'l, 395.

§ 54. Where letters are addressed to a young lady over eighteen years of age, but under twenty-one, and are claimed both by herself and her guardian, it is the better course for the postmaster to deliver the letters to the young lady, as she is the person to whom the letters are addressed, and thus answers the description in the postoffice laws, particularly section 22

of the act of March 3, 1825 (4 Stat., 108), and section 32 of the act of July 2, 1826 (5 Stat., 87), and sections 58 and 59 in the regulations made by the postoffice department. Delivery of Letters, 13 Op. Att'y Gen'l, 481.

*

§ 55. Where a letter is directed to A., care of B., the postmaster may, in the absence of any demand by A., deliver the letter to B.; but if A. claim the letter and demand possession of it, the postmaster cannot lawfully deliver it to B. A prohibition by B., in conflict with a demand by A.. must be disregarded by the postmaster. Delivery of Letters,* 12 Op. Att'y Gen'l, 136.

$56. Chief clerk of postoffice department not entitled to commissions in addition to salary. The rules and regulations of the postoffice department having provided that the division of finance shall be under the superintendence of the chief clerk, who shall be treasurer of the department, held, that the chief clerk, receiving a stated salary as such, was not entitled to commissions or other extra pay for services performed by him as treasurer, such duties being incumbent on him by virtue of his office of chief clerk. United States v. Brown,* 9 How., 487.

$57. Miscellaneous.- The United States are creditors of a delinquent postmaster and his sureties, against whom a judgment has been entered, within the meaning of an act of the Illinois legislature, which provides that all conveyances which are not filed are void against creditors. And on this ground a conveyance of property by the parties to a postmaster's bond, the deed not having been left for record until after the defalcation occurred, was held void. Rose v. Prentiss, 4 McL., 106.

§ 58. Under a compact entered into between the federal government and the state of Ohio, by which the Cumberland road was surrendered to the control of the state, subject to certain restrictions, among which was one to the effect that no toll should be collected for the passage of any stage or coach conveying the United States mail, held, that a toll charged upon passengers traveling in the mail stages, without being charged, also upon passengers traveling in other stages, is against the contract, and not collectible. Neil v. State of Ohio, 3 How., 720. § 59. It rests altogether in the discretion of the postmaster-general to determine at what hours the mail shall leave particular places and arrive at others, and to determine whether it shall leave the same place only once a day or more frequently; hence the state, under the above contract, cannot complain of the frequency of the departure of carriages carrying mail as an abuse of the privilege of the United States; but the unnecessary division of the mail bags amongst a number of carriages, in order to evade the payment of tolls, would be such an abuse. Ibid.

§ 60. The act of 1936, chapter 270, section 1, requiring the revenue of the postoffice department to be paid into the treasury, does not require each payment to be carried in by a separate warrant, but they may be carried in quarterly by large covering warrants. Boody v. United States, 1 Woodb. & M., 150.

§ 61. If extra compensation shall have been paid by one postmaster-general, without the sanction of an act of congress, the money so paid may be recovered back. Acts of Postmasters-General,* 3 Op. Att'y Gen'l, 1.

II. POSTOFFICE DEPARTMENT.

§ 62. Scope of powers.- Postmasters-general are merely agents of the government, with limited authority; and none of their acts, except those that are found to be within the scope of their authority and conformable to law, are obligatory upon the government. Contractors with them are chargeable with knowledge of the law, and must be presumed to be acquainted with the extent of their powers, and consequently with any departure from them in respect to contracts for transportation of the mails, and cannot, therefore, legally claim any benefit under acts done in contravention of the law; for such are void from the beginning, and no legal right can be founded upon them. Acts of Postmasters-General,* 3 Op. Att'y Gen❜l, 1. $63. Not subject to control of president.-The postmaster-general, in the discharge of those duties which are prescribed by law, is not lawfully subject to the control of the president. United States v. Kendall, 5 Cr. C. C., 163.

§ 64. To require bonds from deputies.- By virtue of the acts of congress relative to the postoffice, making it the duty of the postmaster-general to superintend the department, to regulate the conduct and duties of his deputies, and to collect the moneys received by them for the general postoffice, he is empowered to take bonds to secure the payment of money due, or which may become due, to the general postoffice. Postmaster-General v. Early, 12 Wheat., 136.

§ 65. The postmaster-general has a right to require a bond from a deputy-postmaster, for

the faithful performance of the duties of his office, although such bond is not expressly required by law. Postmaster-General v. Rice, Gilp., 554.

$66. To make mail contracts.-The word " temporary," as used in the proviso to the twenty-third section of the act of July 2, 1836, authorizing the postmaster-general to make contracts for temporary service without receiving bids, should not be construed to authorize a discretionary contract for a term extending beyond the time when the next annual letting will take effect, but that the postmaster-general has a discretion within that limit to advertise immediately, or to wait until the time for the usual annual advertisement, except when the exigency arises too late in the contract year for the advertisement and letting to be completed before the beginning of the next year, in which case the right to make temporary contracts extends through the succeeding year. Contracts for Carrying the Mail,* 13 Op. Att'y Gen'l, 473.

§ 67. The postmaster-general is not authorized to make any contracts for the conveyance of mails other than for "temporary" service, except under or in pursuance of bids received after inviting them by advertisement; and if the lowest bidder at an annual letting fails to enter into contract and perform service, the postmaster-general cannot legally contract with the next lowest bidder who will agree to perform the service at his bid for the whole term without re-advertising. Ibid.

§ 68. To fine mail contractors.- Under the act of June 27, 1848, authorizing and requiring the postmaster-general “to impose fines on contractors, for any unreasonable or unnecessary delay in the departure of mails to and from foreign countries, or in the performance of the trip," the power to impose a fine is limited to the cases and for the causes specified in the act, and does not extend to cases where vessels other than those called for by the contract are used, provided there was no unreasonable delay in the departure of the mails or the performance of the trip. United States v. Collins, 4 Blatch., 142.

§ 69. The power of the postmaster-general, under the act of June 27, 1848, to fine a mail contractor, though an administrative power, is so far judicial in its character that it must appear that the officer clothed with the power has assumed to exercise and has in fact exercised it. A letter from the postmaster-general, advising the head of another department to make a deduction from the pay of a contractor, on the ground that an inferior service has been performed, is not the imposition of a fine within the meaning of the above act. Ibid.

§ 70. To establish post-routes. In the act of March 3, 1851, section 10, authorizing the postmaster-general "to establish post-routes within the cities or towns," the postmasters of which are appointed by the president, the word "post-routes" is not synonymous with postroads in the act of 1827. United States v. Kochersperger,* 9 Am. L. Reg., 145.

§ 71. The postmaster-general, conformably to the provisions of the act of 1851, and other statutes, having established within the postal district of a city, the postmaster of which was appointed by the president, a local post for the collection and delivery of letters, etc., not carried by mail, issued an order declaring that under the authority conferred by the act of 1851, the streets of the city were established as "post-roads." This order did not make them "post-roads" within the meaning of the act of 1827, or make the business of private letter carriers within the postal district of the city unlawful. Ibid.

§ 72. To discontinue postoffices.- Although the power to establish postoffices and postroads is conferred upon congress, the policy of the government has been to delegate the power to designate the places where mails shall be received and delivered to the postmastergeneral, and the power to discontinue postoffices is incident to the power to establish them, unless there is some provision in the acts of congress restraining its exercise. Ware v. United States,* 4 Wall., 617.

§ 73. Possessing that power, it is lawful for the postmaster-general to exercise it by discontinuing an office, notwithstanding the fact that the postmaster in charge was appointed by the president, by and with the consent of the senate, because such incumbent accepted the appointment subject to the legal contingency that the postoffice might be discontinued. Ibid. § 74. To make loans of public money. The power of the postmaster-general to make loans of public money must be limited to acts inseparable from the exigencies of the department over which he presides ---- acts necessarily incident to its regular, legitimate operations. It can never be extended to a right in the postmaster-general to advance money to a postoffice clerk, either as a loan or to purchase stocks or certificates of deposit for the purpose of speculation. United States v. Brown,* 9 How., 487.

§ 75. To correct mistakes of predecessor. The act of a postmaster-general in making extra allowances to mail contractors in consequence of alterations made, after the execution of the contract, in the frequency and speed of the conveyances used for transportation, and on account of the increased weight of the mailed matter, are not, where the account is still open, conclusive upon his successor; on the contrary, the latter possesses competent authority to look into such allowances, and where he finds them to have been founded on material