Page:Federal Reporter, 1st Series, Volume 1.djvu/429

COMMEBFORD V. THOMPSON. 431 �derogation of the common law, but is penal in its character, and should therefore receive a strict construction. �This section was evidently intended for the p'anishment of the guilty promoters of these impostures, but in other sec- tions congress bas provided, not for the punishment, but for the protection of their victims, by requiring registered letters and money orders to be returned to the writors under such regulations as the postmaster general may preseribe. Sec- tions 3929 and 4041. No penalty is in express terms affixed to the senders of these letters, and we think it would be a forced construction of the law to apply the penalties of section 3894 to them. Obviously, sections 3929 and 4041 will not jus- tify the acts of the defendant in this case, as the Common- wealth Distribution Company is not fraudulent, but is appar- ently legalized by the law of the state, (at least this was assumedupon the argument,) and there is no averment in the answer that the letters are registered or contain money orders. Nor is there any allegation of a compliance by the defendant with the regulations of these sections ; indeed, it was admit- ted upon the argument that the act of the defendant could not be justified unless section 3894 covered the case. �But we think the act of the defendant in detaining these letters was unauthorized for another reason. The act de- clares certain letters unmailable, but provides no machinery for their arrest and detention, probably because no such ma- chinery is possible, exeept by resort to the courts, without a violation of the constitutional guarantee of the right of the people to be secure in their papers against unreasonable searches and seizures. Ex pwrte Jackson, 97 U. S. 733. The act simply provides for the imposition of a fine upon the per- son mailing them. We think this method of enforcing the statute is exclusive, at= least of any such remedy as the de- tention of letters on a mere suspicion, though I would not say that a postmaster might not lawf ully refuse to receive letters known to him, by the statements of those mailing letters, or otherwise, to contain unmailable matter, �It is a rule in the construction of statutes that where a new offence is created, and the penalty is presoribed for it, or a ��� �