The opinion of the court was delivered by: MEANEY
This action is brought by the plaintiff against Frank C. Walker, as Postmaster General, and Louis A. Reilly, as Postmaster of the City of Newark, to enjoin them from carrying into effect a fraud order made by the Postmaster General, excluding from the mails matter addressed to plaintiff, trading as American Health Aids Company.
The Postmaster General charged the plaintiff with conducting a scheme for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises, in violation of sections 259 and 732 of title 39, U.S.C.A. and subsequently, after a hearing, issued an order to the Postmaster at Newark, New Jersey, where plaintiff carried on its business, instructing the Postmaster at Newark to return to the senders any mail directed to the plaintiff, with the words, 'Fraudulent: Mail to this address returned by order of Postmaster General', stamped thereon, and further forbidding him to pay any money orders drawn to the plaintiff's order.
A special appearance was made through the United States Attorney to dismiss the suit as to Frank C. Walker, as Postmaster General, for want of jurisdiction, on the ground that valid service of process upon the said defendant could not be made outside the territorial limits of this court; and for the reason that the court is without jurisdiction on the grounds that the Postmaster General is a necessary and indispensable party. Defendants move to dismiss as well against Louis A. Reilly, as Postmaster of the City of Newark, for the reason that the court is without jurisdiction over Frank C. Walker, a necessary and indispensable party defendant.
Prior to any determination as to the propriety of the fraud order, it is necessary that the court determine first whether there was a valid service of process upon the defendant, Frank C. Walker, as Postmaster General, bringing him within the jurisdiction of this court; and, secondly, whether the Postmaster General is an indispensable party to this action.
It is an established principle under the general rules of jurisdiction that the jurisdiction of a district court in an in personam action is limited to the district of which the defendant is an inhabitant or in which he can be found and, further, in a civil suit in personam, jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons. Robertson v. Railroad Labor Board, 268 U.S. 619, 45 S. Ct. 621, 69 L. Ed. 1119; Pine Hill Coal Co. v. Gusicki, 2 Cir., 261 F. 974.
In the instant case, it nowhere appears that a valid service of summons was made on the Postmaster General within the jurisdiction of this Court and hence no jurisdiction has been obtained. The consensus of cases holds that unless there are special statutory provisions authorizing service on an officer of the government outside the district where the suit is brought, such service may not effectively be made and no jurisdiction over the officer may be obtained. This is true unless the officer voluntarily appears and consents that the court take jurisdiction over him. In Transcontinental & Western Air v. Farley, 2 Cir., 71 F.2d 288 it was held that service of process on the Postmaster General in the District of Columbia was not good service against him in a suit in the District Court of the Southern District of New York.
I am satisfied that the defendant, Frank C. Walker, as Postmaster General, was not brought into this Court by any service admitted to be regular and valid, and accordingly the motion for dismissal as to him is granted.
The second motion raises a point considerably more difficult to determine. Is the Postmaster General an indispensable party to this action?
The law on this point is not settled and there is much diversity of judicial opinion. Jarvis v. Shackelton Inhaler Co., 6 Cir., 136 F.2d 116. There have been several recent cases on this subject, in several of which an extensive examination of authorities was undertaken. See Neher v. Harwood, 9 Cir., 128 F.2d 846. Jarvis v. Shackelton, 6 Cir., supra. Varney v. Warehime, 6 Cir., 147 F.2d 238; Peoples Loose Leaf Tobacco Warehouse Co., et al. v. Cline, D.C.E.D. Ky., 58 F.Supp. 612. Compare also National Conference on Legalizing Lotteries v. Goldman, 2 Cir., 85 F.2d 66; Wheeler v. Farley, D.C., 7 F.Supp. 433.
It will be of no particular moment for this court to undertake a further analysis of the decisions, for as stated in the Jarvis case, supra (136 F.2d 121): 'The task of harmonizing these decisions is almost, if not altogether, impossible, and * * * we are reluctant to undertake it.'
Under such circumstances, I am compelled to follow the decisions that in my opinion embody the sounder reasoning and which will be most likely to best conform to the exigencies of the situation.
In Varney v. Warehime, supra, the court, in holding a superior official not to be a necessary and indispensable party, stated (147 F.2d 242): 'Matters of convenience and necessity are entitled to consideration. Citizens should not be compelled to seek a distant forum for litigation of their controversies with the Government, and likewise, public officials should not be compelled to neglect their duties to answer charges of usurpation of power in a distant forum.'
The court in the Varney case further pointed out that the right of intervention is available to a superior official in any suit where the subordinate is made a party defendant. In that case the court declared itself as adhering to the rule that where the plaintiffs in an action are not seeking to prevent subordinates from executing a discretionary order of their superior, but are challenging the power of the superior to make the regulation, it is not necessary to have the superior officer before the court. State of Colorado v. Toll, 268 U.S. 228, 45 S. Ct. 505, 69 L. Ed. 927; Brooks v. Dewar, 313 U.S. 354, 61 S. Ct. 979, 85 L. Ed. 1399; American ...