NEW ORLEANS NAT. BANK V. MERCHANT.

841

or condition of citizens. In support of this view of the subjeot I oile the County of San Mateo v. Southern Pac. R. R. 8 Amer. & Eng. By. Clls. 17, 18; [So C. 13 FED. REP. 145, 722.] Muoh is said in the brief of the counsel for the defendant on this point of the inequality of the contest between a sovereign state and a oitizen, and the law of the state may be a severe one; but this is aside from the real question, for though the law may be subjeot to the strictures made upon it, yet so long as it applies to all ci,tizens alike, and does not discriminate against any class of persons, it oannot be said to deny the equal protection of the laws within the meaning of the fourteenth amendment to the constitution of the United States. But it is claimed that it does deny due process of law; though this is not insisted upon so much as the other proposition, that the defendant is denied the equal protection of the laws. 'It is true, as a.geueral proposition, that when a state or a government becomes a party to a suit in its own conrts, it stands upon· ,the same footing with individuals, and must submit to the law as it is, administered between man and man; but this proposition has its limitations, and by the oommon-law dootrines upon this subject the government may go into its own courts with all the legal remedies that one person may have against another, and is exempt from the necessityof giving bond and affidavit; and it would be impossible to hold that legislation to that effect on the part of a state is a deniai to a defendant of due process of Jaw. On the question of what is due prooess of law see Davidsonv. New Orleans, 96 U. S. 97. The result of these views I is that the case at bar is not one for removal, and the motion to remand to state court is granted.

NEW ORLEANS NAT. BANK

v.

MERCHANT.1

(Circuit Court, E. D. Louisiana. January 6, 1884.)
1. JURISDICTION-REMOVAL OF CAUSES-ACT OF MARCH 6, 1875-REV. ST. § 3833. Section 3833 of the Revised Statutes confers jnrisdiction upon the courts of the state, in certain instances, as courts of the state, but does not thereby make them federal courts; and cases instituted in the state courts, under the authority of section 3833, are removable to the circuit (lourts of the United States under the provisions of the second section of the act of March 3, 1875. 2. REGISTERED LETTERS AND MONEY ORDERS-REV. ST. §§ 3926, 4027, 3929. 4041. The effects of the provisions of sections 3926, 4027, 3929, and 4041 of the Revised Statutes is, that when the postmaster general is satisfied that anyone is engaged in one of the schemes or enterprises described in the statutes, the person so engaged (while ordinary mail is open to him, as to aU others, for the receipt or transmission of ordinary mail matter) shall Dot be entitled to receive through the mail either the registered letters or money orders provided for in the law; and that as long as the postmaster general is not satisfied that any one is engaged in one of the schemes or enterprises described in the statutes, so
1Reported b¥ Joseph P. Hornor, Esq. of the New Orleans

842

FEDERAL REPORTER.

long the use of the registered-letter and money-order systems cannot be refused. The fair import of the law is that a deprivation of the registered-letter and money-order systems shall only continue while the offending party is engaged in one of the schemes or enterprises described in the statutes, and while tlle postmaster general is satisfied such parly is so engaged.
3.

JURISDICTION TO (JONTROL ACTS OF EXECUTIVE OFFICER.

Where the act of the" officer is one of mere ministerial duty, it may be controlled orcompelied by the courts; where the act involves the exercise of judgment or discretion, the courts cannot interfere to compel or prevent.

4.

POWERS OF POSTMAS'fER GENERAL.

'rhe postmaster general may. upon evidence satisfactory to him that any person is engaged in conducting any fraudulent lottery, gift enterprise, or scheme, for the distribution of money or of any real or personal property, by lot, chance, or draWing of any kind, or in conducting any other scheme or device for obtaining money through the mails by means of fahe or fraudulent pl'etenses, representations, or promises, lawfully forbid to such person so engaged the use of the registered-letter and money-order systems; but he may not laWfully forbid such use on any other grounds, either of motive or conduct.

On Motions to Remand and "to Dissolve the Injunction. . This suit was. instituted in the civil district cour.t of the parish of Orleans, on a petition, verified by affidavit, setting forth, in substance, that th,e complainant is chartered and carrying on a large ,banking busipess under the national-banking laws of the United States, and has important connections with other banking institutions and persons throughout the United states, with wh.om it is necessary to mainta.in cQmmunication, which can only be done througll the United States mail; that a large part of, its business consists in sending to and receiving from its various sums of money, bonds and securities, and valuable papers, and which can only pe transMted safl;lly by and through the United States mails, by means of registered letters and money orders; tb,at it has been and is constantly in receipt of postal money orders and registered letters through the mails at the New Orleans post-office; and that to deprive it of the that office use of the registered-lett'll' and money-order system would work it irreparable injury, and damage it to the extent of many thousand dollars';: Also, that the defendant is postmaster at New Orleans, and as such is in charge of all the mails, and the contents thereof, arriving at the New Orleans post-office. including ail mail matter addressed,to complaimtnt, and all money orders and registered letters, large numbers of which are now on the way .in the said mails, addressed to complainant, and large numbers thereof will continue to be 's/'nt; ,that without any charge having been made anywhere against complainant, and without any formal or other .notice, and without hearing, or opportunity to be heard, anywhere, by counsel or otherwise, said defendant intends to, and has threatened to, and willI uuless prevented, in defiance of all law, without any just or legal cause, -Without warrant or authority, or any process of law, whatever, detainoy force,a,nd refuse to d.eliver to. petitioner, such registered letters as may ,he 'received for petitioner through the mails, and refuse to pay such money orders as may be received by petitioner,

at

NEW "ORLEANS NAT. BANK V. MERCHANT.

848

payable at the New Orleans post-office, to the great damage, etc.; and that a writ of injunction is necessary; that complainant has the right, under the constitution and laws of the United States, to the use of. the mails to send and receive mail matter, and to be protected in its papers, property, and effects, while the same are in course of transportation through the mails, from illegal and unreasonable searches and seizures, without warrant; and that complainant cannot be deprived of its property while the same is in course of transportation in the mails, without due process of law. " A prayer was made for a writ of injunction enjoining and reo straining defendant from detaining or refusing to deliver to peti. tioner the registered letters that may come addressed to petitioner through the mail to the New Orleans and from refusing to pay such postal money orders as may be presented at said office at New Orleans, drawn in favor of petitioner and made payable at said office, and the usual prayer for citation,dueproceedings, that the injunction be perpetuated for general relief, etc. The injunction was granted as prayed for, on a bond for $1,000. After service on defendant, he appeared in the civil district court ahd filed his petition and bond for the removal of the oause to this court, and the cause was thereupon removed here, on the ground that the same is One arising under the laws of the United States. In this court the de· fendant moved to dissolve the injunction on grounds to be filed, and thereafter filed a sworn answer, and the same has been taken as assigning the grounds for the dissolution asked for, in substance, towit: Admitting the intention to refuse complainant delivery of re· gistered letters addressed to it, and to refuse to pay to complainant money orders payable to it, setting forth asallthority for so refusing, the orders and findings of the postmaster general ofthe United States, as follows: On the twelfth of November, 1879, the postmaster general issued the following order: "It haVing been represented to me ,that a certain M. A. Dauphin, at New

Orleans, La., is engaged in conducting a scheme or device for obtaining money througb the mails by means of false and fraudulent pretenses, representations and promises, and being satisfied from t!:le evidence" before me that the said M. A. Dauphin is so engaged, I do hereby forbid the payment by the postmaster at New Orleans, La., of any postal" money order drawn to the order of said M. A.. Dauphin, or M. A. Dauphin, secretary, or M. A. Dauphin, post-office box 692 j Bnd the said postmaster is hereby directed to" inform the remitter of said postal money order that the payment thereof has been forbidden, and that the sum of said mOlley order will be returned upon the presenting of a duplicate money order, applied for and obtained under the regulations of the department. And, upon the same evidence, the postmaster at New Orleans aforesaid, is hereby instructed to return all registered letters which shall al'l'ive at his office directed to the said M. A; D'auphin, M. A. Dauphin, secretary, or M. "A. Dauphin, post-office box '692, to the postmasters at the offices at Which they were originally mailed, with the" word ·fraudulent' plainly written or stamped upon the outside of sueh letters."

. And on February 27, 1880, the following 'Order: "

·

844

REPORTER.

"POST-OFFICE WASIIINGTON, D. C., Feb. 27, 1880. "SIR: On the thirteenth of November, 1879, I issued an order addresser] to you. fl)l"biding the payment of any postal money order to M. A. Dauphin, secretary, or M. A. Dauphin, post-office box 692, and 319 Broadway, New York, arid the return of all registered letters addressed to them, to the postmasters at whose office they were mailed. "This party haVing brougllt suit against me to enjoin the performance of this order, and having appealed the same to the supreme court of the United States, and having this day presented the certificate of the governor and state officers of the state of Louisiana that he has complied with all the legal requirements of that state, and other" evidence, and not being satisfied from the evidence submitted to me that the said M. A. Dauphin is erigaKed in conducting a scheme or device for obtaining money through the mails by means of false or fraudulent pretenses and promises, I hereby authorize and direct the suspension of said order of November 13, 1879, so far as it relates to said Dauphin, until the case shall have been heard and determined by the supreml! court of the United States. [Signed] "D. M. KEY, Postmaster General. "To Postmaster, New Orleans. La., and to Postmaster, New York, N. Y."

And on Septeplber 20, 1883, the following order, modifying and enlarging one of the same purport issued on the fourteenth of Sep. tember, 1883, to wit: ' "It appears from the records of the department that on the thirteenth day of November, 1879, Postmaster General Key, upon evidence satisfactory to him, entered a written finding that M. A. Dauphin was engaged in conducting a scheme or device tor obtaining money through the mails by means of falSe and fraudulent representations; and it also further appearing that said Postmaster General Key entered an order, based upon said finding, prohibiting the postmasters at New York and New Orleans from paying money orders drawn to the order of the said Dauphin, and the delivery of registered letters addressed to him; therefore, in pursuance of the finding of Postmaster General Key, which finding remains in full force, it is ordered, that all post. masters be and they are hereby forbidden to pay money orders dra.wn to the order of M. A. Danphin, and they are hereby directed to inform the remitters of said postal money orders that the payment thereof has been forbidden, and that the sum of such money orders will be returned upon the presentatiQn of duplicate orders applied for and obtained under the regulations of the department. All postmasters are also forbidden to deliver registered letters arriving at their offices directed to the said M. A. Dauphin, and are instructed to return all such registered letters to the postmasters at the offices itt which they were originally mailed, with the word' fraudulent'plainly written orstamved upon the outside of such l-etters. . "W. Q. GRESHAM, Postmaster General." And on the nineteenth of September. 1888, the following letter arid ordel', to wit: Since you were inslructed ·to deliver no registered letters reaching your office addressed to M. A. Dauphin, and to redeem no money orders payable to him, he .has directed in an advertisement inserted in certain newspapers that all registered letters intended for him and concerning the Louisiana State Lottery Company be addresaed ,New Orleans National Batik at New Orleans, and that. all· money orders sent to your office for hia benefit and concerning the business of said lottery company, be made payable to said bank. I am in possession of trustworthy information that this