574 F.

2d 712

UNITED STATES POSTAL SERVICE, Plaintiff-Appellee,

v.
Patricia H. BRENNAN and J. Paul Brennan d/b/a P. H.
Brennan
Hand Delivery, Defendants-Appellants.
No. 741, Docket 78-6002.

United States Court of Appeals,

Second Circuit.
Argued Feb. 22, 1978.
Decided April 13, 1978.

Gerald J. Houlihan, Asst. U. S. Atty., Rochester, N. Y., Richard J. Arcara,

U. S. Atty., Western District of New York, Buffalo, N. Y., for plaintiffappellee.
James M. Hartman, Rochester, N. Y. (Harris, Beach, Wilcox, Rubin &
Levey, Michael C. Normoyle, Rochester, N. Y., of counsel), for
defendants-appellants.
Mozart G. Ratner, Peter J. Carre, Washington, D. C., for amicus curiae,
National Association of Letter Carriers.
Before FRIENDLY, MULLIGAN and MESKILL, Circuit Judges.
MULLIGAN, Circuit Judge:
The facts underlying this litigation are undisputed. Patricia H. Brennan
and J. Paul Brennan, doing business under the name of P. H. Brennan
Hand Delivery Service (the Brennans), have conducted since March, 1976
in downtown Rochester, New York, a service delivering for compensation
letters and small to medium size parcels. They guarantee same day
delivery in Rochester for all materials picked up from customers before
twelve o'clock noon at a rate which is less than that charged by the United
States Postal Service (USPS). On February 23, 1977 USPS brought a civil
action in the United States District Court for the Western District of New
York seeking permanent injunctive relief prohibiting the Brennans from

continued violations of the Private Express Statutes which proscribe the

private carriage and delivery of "letters."1 On March 22, 1977 the
Brennans filed an answer which in substance admitted the material facts
alleged in the complaint but as a defense urged that the Private Express
Statutes were unconstitutional. Cross motions for summary judgment
were filed and on December 27, 1977, United States District Judge, Hon.
Harold P. Burke, found that the defendants' contentions were without
merit. He denied the defendants' motion for summary judgment and
granted the government's motion for summary judgment. The Brennans
appealed. On January 10, 1978 this court granted a stay of the district
court's order and judgment until the argument of this appeal. At that
argument on February 22, 1978 this court extended the stay until the
determination of the appeal. The judgment of the district court is hereby
affirmed and the stay in this matter is vacated.
* Under the "Private Express Statutes", Congress has granted the United
States a monopoly on the conveyance of "letters or packets" and has
precluded competition by private express. National Ass'n of Letter
Carriers v. Independent Postal System of America, 470 F.2d 265, 267
(10th Cir. 1972). Appellants' primary position is that the Constitution did
not grant exclusive power to Congress to operate a postal system and that
the Private Express Statutes are not "necessary and proper" to execute the
constitutional power to establish post offices and post roads.
The Constitution does not expressly give Congress "the sole and exclusive
right and power" to establish and regulate the carriage of mail as did the
Articles of Confederation.2 However, the postal power, like all other
enumerated powers of Congress, "is complete in itself, may be exercised
to its utmost extent, and acknowledges no limitations, other than are
prescribed in the constitution." Gibbons v. Ogden, 9 Wheat. 1, 196, 6
L.Ed. 23 (1824) (Marshall, C. J.) (commerce clause). Moreover, the
Constitution grants Congress the power to enact all laws it deems
necessary and proper to execute its power to establish post offices.3 The
congressional choice, as expressed in the Private Express Statutes, was to
retain in the United States an exclusive and monopolistic authority over
the delivery of letters. The question is whether that determination was
"necessary and proper."
The scope of the necessary and proper clause was indelibly sketched in
McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819) where Chief
Justice Marshall gave a broad interpretation to that clause in upholding
congressional action under the commerce clause:

1 admit, as all must admit, that the powers of the government are limited, and that
We
its limits are not to be transcended. But we think the sound construction of the
constitution must allow to the national legislature that discretion, with respect to the
means by which the powers it confers are to be carried into execution, which will
enable that body to perform the high duties assigned to it, in the manner most
beneficial to the people. Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.
4 Wheat. at 421 (footnote omitted). 4
2

There is nothing novel or unprecedented in the governmental monopoly.5 While

we need not demonstrate that today's mail service is the inevitable outgrowth of
4,000 years of postal history commencing in Egypt and Assyria, see C. Scheele,
Neither Snow, Nor Rain . . . The Story of the United States Mails 2-10 (1970),
it has been noted that private industry could not have attempted to supply the
postal requirements of a frontier nation. See W. Rich, The History of the United
States Post Office to the Year 1829 at 91-110 (1924). Congress certainly could
have determined that something less than a federal monopoly would allow the
continuance of an effective postal system. However, the wisdom of the choice
is not the question for the court; we may only pass on Congress' power to make
it.6

The constitutionality of the postal monopoly has been challenged rarely and
never successfully.7 Almost a century ago Boyd's City Dispatch employed
some 50 carriers who made daily collections and deliveries of letters in the City
of New York in competition with the United States Post Office. The proprietor
of the private service sought a preliminary injunction to enjoin the Postmaster
General from seizing the mail Boyd's City Dispatch was delivering. No attack
was made on the constitutionality of the private express statute, U.S.Rev.Stat.
3982. Rather, plaintiff sought to distinguish her business from those covered by
the statute. The court in Blackham v. Gresham, 16 F. 609, 612
(C.C.S.D.N.Y.1883), in an opinion denying the injunction, stated:

4 pointed out by the attorney general of the United States in 1858, (9 Op. 161) "the
As
business of carrying letters and other mail matter belongs exclusively to the
government; and in cities and the large towns letter carriers are as much part of the
system as the transportation of the mails from one office to another." If private
agencies can be established, the income of the government may be so reduced that
economy might demand a discontinuance of the system; and thus the business which
it is the right and duty of the government to conduct for the interest of all, and on

such terms that all may avail themselves of it with advantage, may be handed over to
individuals or corporations who will conduct it with the sole view of making money,
and who may find it for their profit to exclude localities or classes from the benefit
of the service. (Emphasis supplied.)
5

The most recent opinion in point is United States v. Black, 569 F.2d 1111 (10th
Cir.), cert. denied, 435 U.S. 944, 98 S.Ct. 1525, 55 L.Ed.2d 541 (1978). In
Black the defendants operated a private express conveying letters between the
cities of Pittsburgh and Frontenac in the State of Kansas. The defendants
admitted that they violated 18 U.S.C. 1696 but in defense claimed that the
statute was unconstitutional. The court held that the postal monopoly was
constitutional because it was a valid exercise by Congress of the power granted
it by Art. I, 8. This case is indistinguishable from the present appeal.

We conclude that the postal power, in conjunction with the necessary and
proper clause, as interpreted by Chief Justice Marshall in McCulloch,
authorizes Congress to exercise its power to the utmost extent. The monopoly
which Congress created is an appropriate and plainly adapted means of
providing postal service beneficial to the citizenry at large. Consequently, the
Private Express Statutes are constitutional.

II
7

Appellants' remaining constitutional arguments are even less persuasive. They

rely upon the Tenth Amendment which provides:

8 powers not delegated to the United States by the Constitution, nor prohibited by
The
it to the States, are reserved to the States respectively, or to the people.
9

However, the postal power is a delegated power and, as we have found under
the necessary and proper clause, in determining to occupy the field exclusively
in the conveyance of letters, Congress was not exceeding its powers. As the
Court stated in Case v. Bowles, 327 U.S. 92, 102, 66 S.Ct. 438, 443, 90 L.Ed.
552 (1946):

10 the decision in McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 420, 4 L.Ed.
Since
579, it has seldom if ever been doubted that Congress has power in order to attain a
legitimate end that is, to accomplish the full purpose of a granted authority to use all
appropriate means plainly adapted to that end, unless inconsistent with other parts of
the Constitution. And we have said, that the Tenth Amendment "does not operate as
a limitation upon the powers, express or implied, delegated to the national
government." (Footnote omitted.)

11

Since we have decided the creation of a postal monopoly is a proper exercise of

power, the Tenth Amendment argument adds nothing of substance to the
constitutional issue here, particularly since no threat to state sovereignty is
involved. See National League of Cities v. Usery, 426 U.S. 833, 842-43, 96
S.Ct. 2465, 49 L.Ed.2d 245 (1976); Tribe, Unraveling National League of
Cities: The New Federalism and Affirmative Rights to Essential Government
Services, 90 Harv.L.Rev. 1065, 1067, n.17 (1977).8

12

Appellants further urge that by permitting the Postal Service to define letters or
packets, see 39 U.S.C. 401(2); 39 C.F.R. 310.1, Congress has improperly
delegated the legislative authority vested exclusively in it by Art. I, 1 in
violation of the separation of powers doctrine.9 The legislature has prescribed
the general powers of the Postal Service in 39 U.S.C. 401, including the
power "to adopt, amend and repeal such rules and regulations as it deems
necessary" in order "to maintain an efficient system of collect(ing,) sorting, and
delivering the mail" as called for in 39 U.S.C. 403(b)(1). "Broad rule-making
authority must be allowed a federal agency such as the postal service whose
activities are national in scope and are geared to meet varied conditions and
circumstances throughout the country." Rockville Reminder, Inc. v. United
States Postal Service, 350 F.Supp. 590, 593 (D.Conn.1972), aff'd, 480 F.2d 4
(2d Cir. 1973).

13

The only authorities cited by appellants for their argument on this point are
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837,
79 L.Ed. 1570 (1935) and Panama Rfg. Co. v. Ryan, 293 U.S. 388, 55 S.Ct.
241, 79 L.Ed. 446 (1935). These were the "only two cases in all American
history" which held congressional delegations to public authorities invalid. K.
Davis, Administrative Law Text 26 (3d ed. 1972). "Both . . . cases dealt with
delegation of a power to make federal crimes of acts that never had been such
before and to devise novel rules of law in a field in which there had been no
settled law or custom. (Schechter) also involved delegation to private groups as
well as to public authorities." They were so distinguished by Mr. Justice
Jackson in Fahey v. Mallonee, 332 U.S. 245, 249, 67 S.Ct. 1552, 91 L.Ed. 2030
(1947). That distinction is valid here.

14

In any event, as Mr. Justice Marshall commented in his dissent in National

Cable Television Ass'n v. United States, 415 U.S. 336, 352-53, 94 S.Ct. 1146,
1156, 39 L.Ed.2d 370 (1974):

15 notion that the Constitution narrowly confines the power of Congress to

The
delegate authority to administrative agencies, which was briefly in vogue in the
1930's, has been virtually abandoned by the Court for all practical purposes, at least

in the absence of a delegation creating "the danger of overbroad, unauthorized, and

arbitrary application of criminal sanctions in an area of (constitutionally) protected
freedoms" . . . . (Footnote and citation omitted.)
16

There is no palpable abuse here and no congressional abdication. On the

contrary, the authority and necessity for USPS to define "letters" in view of the
myriad methods and modes of communication which presently exist is obvious.
Thus, the delegation is constitutional.

17

Finally, the appellants also claim that since the postal monopoly only
encompasses letter mail and permits private competition in the delivery of nonletter mail (e. g., fourth class mail parcels) there is a violation of their Fifth
Amendment Equal Protection rights.10 No authority at all is cited that supports
this proposition. As the Supreme Court has often stated, "A classification 'must
be reasonable, not arbitrary, and must rest upon some ground of difference
having a fair and substantial relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.' " Johnson v. Robison,
415 U.S. 361, 374-75, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974) (citation
omitted; emphasis supplied). But here the classification is not directed against
persons; rather it is based upon types of mail. The Brennans are in no different
posture than any citizen who decides to carry letters in violation of the statute.
Obviously, the distinction between types of mail is not invidious. No
fundamental rights are involved. The reason for the classification is obvious
and rational. The carriage of letters in selected areas is highly profitable
compared to the carriage of bulky materials. This permits a subsidy of sorts to
those services which inevitably lose money. The national system requires that
distinctions based upon the character of the business be made. Blackham v.
Gresham, supra, 16 F. at 612. It is the task of Congress and the agency to make
the classification, not the courts. See McGowan v. Maryland, 366 U.S. 420, 81
S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical Co., 348 U.S.
483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

18

We conclude that the appellants have utterly failed to establish the

unconstitutionality of the Private Express Statutes on any basis. While
American citizens may properly complain about the cost or inefficiency of mail
service, this hardly raises a matter of constitutional proportions. It is a matter
for the Congress and not the courts.11

19

Whatever judicial authority we have been referred to or have unearthed

supports the proposition that there is no constitutional infirmity in the federal
monopoly over the conveyance of letters. The appellants are keenly aware of
the absence of any decision suggesting that the Private Express Statutes are

unconstitutional. They suggest that on original analysis this court, "attempt the
grave and delicate responsibility of pronouncing these statutes void." Blackham
v. Gresham, supra, 16 F. at 612.12 However, as Mr. Justice Frankfurter aptly
commented in Romero v. International Terminal Operating Co., 358 U.S. 354,
370-71, 79 S.Ct. 468, 479, 3 L.Ed.2d 368 (1959):
20 history of archeology is replete with the unearthing of riches buried for
The
centuries. Our legal history does not, however, offer a single archeological discovery
of new, revolutionary meaning in reading an old . . . enactment. The presumption is
powerful that such a far-reaching, dislocating construction as petitioner would now
have us find . . . was not uncovered by judges, lawyers or scholars for (almost two
hundred) years because it is not there.
21

Judgment affirmed and the stay vacated.

39 U.S.C. 601-606; 18 U.S.C. 1693-1699

Compare United States Constitution, Art. I, 8, cl. 7, "The Congress shall have
Power . . . To establish Post Offices and post Roads," with The Articles of
Confederation, Art. IX, "The United States in Congress assembled shall also
have the sole and exclusive right and power of . . . establishing and regulating
post-offices from one State to another, throughout all the United States . . . ."

United States Constitution, Art. I, 8, cl. 18 provides, "The Congress shall

have Power . . . To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers . . . ."

In McCulloch v. Maryland, supra, 4 Wheat. at 417, Chief Justice Marshall

referred to the power of Congress to establish post offices and post roads: "This
power is executed, by the single act of making the establishment . . . . It may be
said, with some plausibility, that the right to carry the mail, and to punish those
who rob it, is not indispensably necessary to the establishment of a post-office
and post-road. This right is indeed essential to the beneficial exercise of the
power, but not indispensably necessary to its existence."

The framers must have had in mind the fact that for 150 years, both in Britain
and in the colonies, the postal service had been a monopoly of the government
and that it had remained a monopoly under the Articles of Confederation. The
first act of the new Congress with respect to the postal establishment confirms
this conjecture. The act of September 22, 1789, provided that "the regulations
of the post-office shall be the same as they last were under the resolutions and
ordinances of the late Congress." And the "late Congress," (i.e., the

Confederation's Congress) clearly established a postal monopoly. It is hardly

likely that the first Congress could have misconstrued the intent of the
Founding Fathers on this point
J. Haldi & J. Johnston, Jr., Postal Monopoly 7 (1974) (footnote omitted).
6

As the Supreme Court has said in upholding the constitutionality of another

government-created monopoly:
But we think it may be safely affirmed, that the Parliament of Great Britain . . .
and the legislative bodies of this country, have from time immemorial to the
present day, continued to grant to persons and corporations exclusive privileges
privileges denied to other citizens privileges which come within any just
definition of the word monopoly, as much as those now under consideration;
and that the power to do this has never been questioned or denied. Nor can it be
truthfully denied, that some of the most useful and beneficial enterprises set on
foot for the general good, have been made successful by means of these
exclusive rights, and could only have been conducted to success in that way.
Slaughter-House Cases, 16 Wall. 36, 66, 21 L.Ed. 394 (1873).

United States v. Black, 569 F.2d 1111 (10th Cir.), cert. denied, 435 U.S. 944,
98 S.Ct. 1525, 55 L.Ed.2d 541 (1978); United States v. Thompson, 28 F.Cas.
97 (D.Mass.1846) (No. 16,489); United States v. Hall, 26 F.Cas. 75
(C.C.E.D.Pa.1844) (No. 15,281)

Appellants have asserted that the postal power is analogous to the taxing power,
which is exercised simultaneously by both the federal government and the
individual states. This analogy is patently false. The Constitution provides for a
system of dual sovereignties; the power to tax is necessary to the survival of the
federal government and of the states. History demonstrates that the states can
survive without running postal services

See generally A. Vanderbilt, The Doctrine of Separation of Powers and Its

Present Day Significance (1963)

10

Although the Fifth Amendment unlike the Fourteenth does not have an equal
protection clause, the Court has held that the due process clause of the Fifth
Amendment prohibits federal action if the same action taken by a state would
be proscribed under the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884 (1954)

11

In reaching our conclusion, we do not overlook the paper of Lysander Spooner

on "The Unconstitutionality of the Laws of Congress Prohibiting Private

Mails", published in 1844 on behalf of the American Letter Mail Company, an

organization which sought to establish mails and post offices in competition
with those of Congress. Lysander, in addition to his legal arguments, naturally
took a Spartan approach suggesting that the expense of the Postal Service, then
$12,000 per day, be used as a fund to retire the existing establishment on an
annual pension. This compensation was to be paid to the postal employees for
"simply getting out of the way of private enterprize (sic)." Id. at 24. He argued:
Private enterprise has always the most active physical powers, and the most
ingenious mental ones. It is constantly increasing its speed, and simplifying and
cheapening its operations. But government functionaries, secure in the
enjoyment of warm nests, large salaries, official honors and power, and
presidential smiles all of which they are sure of so long as they are the partisans
of the President feel few quickening impulses to labor, and are altogether too
independent and dignified personates to move at the speed that commercial
interests require. They take office to enjoy its honors and emoluments, not to
get their living by the sweat of their brows. They are too well satisfied with
their own conditions, to trouble their heads with plans for improving the
accustomed modes of doing the business of their departments to (sic) wise in
their own estimation, or too jealous of their assumed superiority, to adopt the
suggestions of others too cowardly to innovate and too selfish to part with any
of their power, or reform the abuses on which they thrive. The consequence is,
as we now see, that when a cumbrous, clumsy, expensive and dilatory
government system is once established, it is nearly impossible to modify or
materially improve it. Opening the business to rivalry and free competition, is
the only way to get rid of the nuisance.
12

The statutes referred to there were quite clearly 4026 and 3990 of the
Revised Statutes of the United States which authorized the postmaster general
or his agents to search for and seize matter being transported in violation of law
and not the Private Express Statute (then 3982 of the Revised Statutes)