The Fairfield Floral Company was carrying on at Fairfield, Me., a business described in its circular advertisements as the "manufacture of artificial flowers," in the prosecution of which it received through the United States mails a very large number of letters, post-office money orders, and packages of merchandise; and it forwarded through the same channels large numbers and quantities of letters, circulars, and materials. The attention of the postmaster general having been called to this business, he caused investigation of the same to be made, and became satisfied that it was so tainted with fraud as to make the matters and things so received and sent through the mails nonmailable under the statutes of the United States, and accordingly, by what is known by postal authority as a "fraud order," he forbade the transmission thereof by the post offices and mails. The postmaster at Fairfield was ordered to withhold from delivery all letters and packages coming to that office directed to the Fairfield Floral Company, and to pay no post-office money orders drawn in their favor. He was further directed to return to the senders, where they were known, all letters and packages received and directed to the Fairfield Floral Company, and to return to the dead-letter office all of which the senders were unknown. Pursuant to such direction from the postmaster general, the local postmaster refused payment of money orders, withheld delivery of the matters received, and returned letters and packages to the senders, or to the dead-letter office. The Fairfield Floral Company, after unsuccessfully demanding from the local postmaster delivery of all things received at his office and directed to it, and also after in vain presenting for payment post-office money orders drawn payable to it, brought its bill in equity, praying that the local postmaster be enjoined from so withholding letters and refusing to pay orders. Upon motion, the court directed a restraining order to issue according to such prayer of the bill, and thereafter, upon hearing of a motion, a temporary injunction was granted.

J. T. Boynton and William J. Haines, for complainant.
Isaac W. Dyer, U. S. Atty., for respondent.

PUTNAM, Circuit Judge (orally). The question whether or not this would be a mandatory injunction, if granted to the entire extent asked for, affords no difficulty. The post office department, through the postmaster at Fairfield, or, so far as we are concerned here, the postmaster at Fairfield, has interrupted the usual course of business, and the injunction is to prevent the continuance of that interruption. If, incidentally, this would compel the postmaster to perform some minor things which, in the ordinary course of business, he would perform, this would not render it a mandatory injunction. This is well expressed in Lennon's Case, 166 U. S. 548, 556, 17 Sup. Ct. 658.

The

The statutes might have provided that the postmaster general, on evidence sufficient to him as to what was and what was not nonmailable matter, as to what matter in the mail formed a part of the alleged fraudulent scheme of the complainant in this case,-should direct that such matter should not be delivered to the complainant. statute might have provided-I do not say that it might constitutionally, but it might have provided-that all matter which was properly nonmailable should be withheld, and that the postmaster general, or his subordinates, should determine, by some rules satisfactory to themselves, as to what was mailable matter and what was nonmailable. It might have thus sought only to purge the mails from what, in the judgment of the officers connected with the post office department, was nonmailable. We would then have had the postmaster general dealing with what was explained by Mr. Justice Field in Ex parte Jackson, 96 U. S. 727, 733, to the effect that the United States have

no right of search or seizure without proper process, and therefore no right to open the mails to ascertain whether or not matter is mailable or nonmailable. And it is possible that the vesting a special discretion in the postmaster general to enable him to determine, as between mailable and nonmailable matter, might have been within the power of congress. On the other hand, congress might have provided-I do not say constitutionally provided, but it might have provided-that, on the conviction of a person for violating the post office laws by a jury, after a proper trial at common law, the court should have power, as a part of the penalty imposed upon him, to prohibit the use of the mails for a definite, or perhaps an indefinite, period of time. Congress might have done either one of these two things; and, if it had done so, we would have had a very different question from what we have with the statute as it now comes to us. The statute neither requires the verdict of a jury, nor does it discriminate between what is mailable and nonmailable. It enables the postmaster general to prohibit the delivery of a letter to the complainant corporation from the clerk of this court, notifying the corporation that it should appear to answer on its order, or a letter from the counsel of the corporation concerning its affairs, and, perhaps, of vital consequence to it. The statute also authorizes the postmaster general to prevent an honest debtor of the corporation, owing an honest debt, and desiring honestly to pay his debt, from using the mails for that purpose. So the provisions of the statute are very far-reaching, and recognize none of the discriminations which would be recognized if it had been of either class of legislation which I have supposed. As the statute stands,

it practically enables the postmaster general to impose upon a person singled out by him according to the statute, for good reasons in his own opinion, a penalty beyond the proper subject-matter to which the statute relates.

If I were free to follow my own judgment, I should say that congress, neither directly, nor through the postmaster general or any one else, has any constitutional authority to impose the penalty of forfei ture of the use of the mails of the United States, at least without a trial. But I am not sure that I will be able to follow my own convictions in this case, even if on a final hearing they remain as they now stand. I am not sure that I will not be bound by the decision of the court of appeals in the Sixth circuit (Association v. Zumstein, 15 C. C. A. 153, 67 Fed. 1000), when the case comes to a final hearing. My own view is that the decisions of the court of appeals in one circuit should ordinarily be followed quite implicitly by the courts in other circuits. The case in the Sixth circuit does not seem to have been taken to the supreme court. I cannot find anything to indicate that it was taken up by writ of error or otherwise, and it seems to have been left on the decision of the court of appeals; so that it stands to-day the highest judicial authority which we have on the validity of the statute.

However, the case at bar, with the aid of the special orders which I propose to ask the parties to consent to, can be brought so quickly to a final hearing that I do not feel that equity justifies me in permitting this mail to accumulate meanwhile. Moreover, I must remember 87 F.-27

that the only ground on which I can now put the case, will probably leave it so that neither party can appeal from an order granting a temporary injunction, as the question is one of constitutionality; so that, whether I grant or refuse a temporary injunction, my decision would probably not be appealable to the circuit court of appeals, and must await a final decree before an appeal can be taken to the supreme court. I am satisfied that I can best do justice by following at present my own views of this statute, which I now regard as unjust and unconstitutional, and by expediting a final hearing of the case, reserving till then the question whether or not I am bound to follow the decision in the Sixth circuit.

Now, if the complainant can give the court to understand how rapidly it can expedite this case, I can give my conclusions on the motion for a temporary injunction. If the bill cannot be brought to a speedy hearing, I will simply let the restraining order stand; but, if the complainant will expedite the case, a temporary injunction will be granted as moved.

ATLAS GLASS CO. v. BALL BROS. GLASS MFG. CO.

(Circuit Court, N. D. New York. June 1, 1898.)

1. PRINCIPAL AND AGENT-WHEN RELATION EXISTS-PARTICULAR CASE. An agreement by which A. is to sell the goods of B. at specified prices, receiving a commission for his services, and to report all orders to B., who is to enter them as sales to A., creates the relation of principal and agent under a del credere commission, and not that of vendor and purchaser.

2. PROCESS-SERVICE ON CORPORATION-MANAGING AGEnt.

A person appointed by a corporation to sell its goods at fixed prices, receiving a fixed commission, and having no authority outside of such sales, is not a "managing agent," within the meaning of Code N. Y. § 431, and service of process upon him is not service upon the corporation.

This was a bill in equity by the Atlas Glass Company against the Ball Bros. Glass Manufacturing Company. The cause was heard on

a motion to set aside the service on defendant.

William L. Pierce, for complainant.
Frederick G. Fincke, for defendant.

COXE, District Judge. The defendant is a New York corporation. The certificate filed with the secretary of state gives the office of the company at Buffalo, N. Y., where the factory and place of business of the company were formerly located. In 1893 the business was removed to Muncie, Ind., where it now is. The subpoena was served upon R. G. Wright, of Buffalo, as agent of the defendant. When the defendant removed its business to Indiana it retained an office at Buffalo until December, 1896, when it sold its property there to the said Wright.

Two letters appear in proof, dated respectively May, 1897, and January, 1898, written by Wright upon the paper of R. G. Wright & Co. on which appears a lithographic picture of the "Muncie Works" and a

statement that the firm are the "successors to and agents for Ball Bros. Glass Mfg. Co." Immediately prior to the commencement of this suit the counsel for the complainant telegraphed to Wright & Co. asking for the Buffalo address of the defendant and received a reply as follows: "Ball Bros. Glass Mfg. Co., 52 Terrace, Buffalo." On the 18th of January, 1898, the defendant entered into a contract with Wright & Co. in which it says, "We hereby appoint you our selling agents for the Eastern market." Pursuant to this agreement the firm were to sell the Mason fruit jars manufactured by the defendant according to its prices attached to the agreement. They could make no profit except their "selling commission" and were to report all orders to the defendant who was to enter them as sales to the firm. The agreement continued in force for about four and a half months. This agreement superseded all prior arrangements and must be regarded as establishing the legal relations of the parties at the time the process was served. The declarations of Wright & Co., assuming that they have any bearing upon the question in issue, were made prior to this agreement and when a different status existed. The statement in the telegraphic dispatch was made afterwards, but so far as appears was wholly unauthorized by the defendant.

It is argued by the defendant that the agreement of January 18th did not create an agency of any kind but was simply a contract of sale. The agreement is unique in several respects and much may be said in favor of this contention, but it is thought, considering the paper in its entirety, that it did not create the relation of vendor and purchaser, but rather that of principal and agent. Wright & Co. were to sell, for a short period, the defendant's goods under a del credere commission and receive for their services 5 per cent. of the invoice price. The provision that the goods were to be charged directly to Wright & Co. was but another way of saying that they agreed to guaranty the sales. The question is not what the parties intended to do but what they actually did do.

It appears, then, that at the time the subpoena was served Wright & Co. were the agents at Buffalo to sell for a brief period a particular line of goods manufactured by the defendants under a strict and limited agreement. The question for decision may be stated as follows: Can a New York corporation, having no officer or director within this state, be sued in this court by serving process upon an agent who has no other relation to the corporation than to sell its goods in the capacity above indicated?

Section 914 of the United States Revised Statutes has no application as "equity and admiralty causes" are expressly excepted from its provisions, but both counsel, apparently, agree that section 431 of the New York Code is applicable, the power which called the defendant into being having the authority to prescribe the method by which it shall be brought into court. Section 431 provides that service upon a domestic corporation may be made by delivering the process "to the president or other head of the corporation, the secretary or clerk of the corporation, the cashier, the treasurer, or a director or managing agent." No authority cited by counsel or fa

miliar to the court holds that the facts established here are sufficient to constitute one a "managing agent."

In construing the statute the doctrine of noscitur a sociis is applicable; the term "managing agent" is found associated with "president," "secretary," "clerk," "cashier," "treasurer" and "director," and it is to be presumed that the lawmakers intended to describe an agent possessing powers analogous to those of the executive officers of the corporation. He must be an agent employed by the corporation, representing it in some capacity and acting for it to a lim ited extent at least. A person appointed to sell at a fixed price and for a fixed commission a single class of goods manufactured by a corporation for a period of four months, is not a "managing agent." He manages nothing. He is invested with no power requiring the exercise of judgment or discretion. He does not even possess the power of an ordinary agent; he is tied hand and foot. He is a mere commission merchant or consignee, the single sphere in which he represents his principal being restricted to the narrowest limits. It is well known that many of the large manufacturing companies have arrangements with merchants in the large cities similar to the agreement in proof. It has never been decided that a mere factor who acts as the medium through whom the soap, or flour, or glass manufactured by his principal, reaches the public, is the managing agent of that principal. R. G. Wright & Co. were not the managing agents of the defendant in any legal sense. The motion is granted.

CHAMBERLAIN v. PIERSON.

(Circuit Court of Appeals, Fourth Circuit. May 17, 1898.)

No. 226.

1. ACTION FOR INJURIES RECEIVED IN WRECK-RECORD OF CONVICTION OF WRECKERS-ADMISSIBILITY OF EVIDENCE.

In an action against a railroad company to recover for injuries received in a wreck caused by the derailment of a train through the alleged negligence of the company, the record of the trial and conviction of persons charged with murder by feloniously derailing the train is not admissible in evidence on behalf of the defendant.

2. CONTRACT FOR TRANSPORTATION OF EMPLOYES-EFFECT ON RIGHTS OF EMPLOYES.

Employés of an express company, who had no knowledge of a contract between such company and a railroad company to the effect that such employés were to be furnished free transportation over the railroad at their own risk while in the service of the express company, are not bound thereby.

3. LICENSEE ON RAILROAD TRAINS-RIGHT TO Recover for NEGLIGENCE.

One who accepts free transportation on a railroad at his own risk can nevertheless recover for injuries caused by negligence of the railroad company or its employés, not his fellow servants.

In Error to the Circuit Court of the United States for the District of South Carolina.

J. E. Burke, for plaintiff in error.

W. Perry Murphy, for defendant in error.