The Portland daily press., 1898-09-09
W. J. Bradbury.
OPINION OF THE COURT.
Coptop,Ior 1909

September 6, 1898.
Putnam, j. This case is now before us
OH bill, answer and proofs. Only two
questions are involved: the application to
the statutes relied on by the United States
of the Constitution, and the objection
made by the respondent that the court
should grant no relief because the COM
plainant does not come here with clean
hands. The latter point was not brought
particularly to our attention in connec-
tion with the motion for an interlocutory
injunction.
AS to the main question, the court ex-
pressed it's views in an incomplete and
crude manner at the conclusion OF the
hearing of the application for an inter
opinion pronounced orally April l9, 1873,
and reported in 81 Fed. Rep 4l5. After
much reflection, we have come to the con-
clusion that while our individual views
remain broadly as then suggested, no
advantage could come from any attempt
to revise or elaborate them, because, IN
view OF the disposition in this circuit to
harmonize with the decisions OF the
Courts of Appeals in other circuits. as ex-
hibitedsin Beach v. Hobbs, SO Fed. Rep.
916, 919, and in Tubular Rivet Il Stud
Company v. O'Brion, according to the
opinion passedidoWn in the Massachusetts
District on July 20, 1888, we ought to fol-
low the practical result accomplished in
the Sixth Circuit, shown by decision OF,
the Court of Appeals for that circuit in
Enterprise Saw. Assn. v. Zumstein, 81
Fed. Rep. 1000, as practically Interpreted
by the circuit Court in the same circuit
in Hoover v. MoCbesney, 81 Fed. Hep.
472..We cannot, however, assent to the re-
f1nement made by the learned District
Judge, in his opinion in the latter case,
that the decision of the Court of Appeals
involved any distinction between an in
dividual and corporation, or that, so far
as the issues here are concerned, any such
distinction exists. Therefore, without
regard to our own views, our conclusion
on the principal question Is that the COM
plainant would be entitled to permanent
injunction as to it's mail aside from SO
much thereof as is registered or covers
m money orders, except for the objection
made by the respondent that the com.
plainant does not come here with clean
hands. = -
This defence is one to which Chancel-
lor cannot shut his eyes when it legiti-
mately arises and is properly presented.
1t is not sufficient, however. that it grows
out of collateral matters; it must arise
court. This proposition may be illustrat
ed in the present case. The order of the
Postmaster General on which the respon
dent relies interrupts. not only 80 much
of the complainant's mail as relates to
it's abusiness to which the Postmaster
General objected, but all Of It, II, there
fore, the bill was confined to those por-
tions of the complainant's mail which do
not concern the business objected to, 1t
would not necessarily be an answer to 1t
that the complainant was using the mail
for an Illegal purpose. But the bill
alleges as follows: "that in the course of
it's business it receives ty mail large mum
bers of orders for goods and other valua-
BILE communications aud remittances of
money; that it Is lawfully entitled to the
use OF the postal system and service of the
United States in carrying on it's said
business; that much the greater part of
it's businefs Is transacted through the use
and by means of the said postal system
and service"
Thus the com plainant expressly claims
to avail itself of the mail in connection
to which the Postmaster General objected
and it's allegation that it Is lawfully en-
titled to the use Of the postal system in
carrying on that business, includes the
implied allegation that the business re-
ferred to is lawful so far as such use is
concerned. Therefore, by the complain
ants own pIeadings, the subject matter
of the lawfulness of the business SO far as
relates to the use of the mail in connec
tion with it, is directly presented to the
court Whether or not 1t was necessary
for the complainant to make These allega-
tions we have no occasionN to determine.
1t is sufficient to say that the result is
that by force of the complaiDant's plead
ings, the question whether it comes into
his suit with clean hands is made part
of the controversy before the court
The respondent takes issue as to this,
by it's amended answer, in the following
terms:
SO. Said defendant denies that complain.
ant is lawfully entitled to the use of the
postal system and service Ut the United
States in carrying on its business, and
further answering says that he is in
formed and believes and therefore AYERS
that the principal rart of the business of
the Fairfield Floral Company is the con-
drcting a scheme or device for obtaining
money through the mails by means of
false and fraudulent pretences, representa-
tionS and promi seS, in violation Ct the
Act of Congress entitled, An act to
punish dealers and pretended dealers IN
counterfeit money and other fraudulent
devices for using the United States Mail,
approved March 2. 1889; and also an Act
of Congress entitled An Act to amend
certain sections of the Revised Statutes
relating to lotteries and other devices,
approved Sept. 10, 1890; and also an Act
of Congress entitled AN Act for the sup
preston of lotteries and other traffio
through the International and Interstate
Commerce and the Postal Service, subject
to the jurisdiction and laws of this United
States approved March 2, 1895; and that
in pursuance of said fraudulent scheme
and device, complainant has been and is
carrying on an extensive business through
the use and byEmeans of the postal system
and service of the United States -
If these allegations did not traverse the
bill, and raised a new matter of defence,