In the Matter of the Complaint That 	) May 2, 1958
 					)
 E. D. ENTERPRISES, 			)
 E-D ENTERPRISES, 			)
 					) H.E. Docket No. 5/102
 at 					)
					)
 Los Angeles, California, 		)
 					)
 is conducting an unlawful enterprise 	)
 through the mails in violation of 	)
					)
 39 U.S. Code 259a. 			)

 Ablard , Charles D.

 POST OFFICE DEPARTMENT WASHINGTON, D. C.

The hearing in the above matter was held on September 3, 1957, in Washington, D. C., and an Initial Decision was rendered by the Hearing Examiner on March 12, 1958, which found that the Respondent was violating 39 U.S.C. 259a by depositing information in the mails as to where, how and from whom obscene matter may be obtained, and obtaining and attempting to obtain money through the mails for the obscene matter.

The Respondent has filed eight exceptions to the findings of the Examiner. The first four raise constitutional questions which are not for decision by administrative agencies. Engineers Public Service Co. v. S.E.C., 138 F. 2nd 936. The Supreme Court has held that obscenity is not free speech protected by the First Amendment of the United States Constitution. U.S. v. Roth, 354 U.S. 476 (1957).

Exceptions five and six are to the burden of proof. The burden of proof was met as the exhibits introduced into evidence speak for themselves. The testimony of the witnesses proved the use of the mails. The exceptions are disallowed.

The seventh exception is to the separation of functions under the Administrative Procedure Act. Since the appeal briefs were filed in this case, the Department has established a Judicial Officer vested with the responsibility of making final adjudication in all administrative proceedings before the Post Office Department. Vol. 23, Federal Register No. 83, page 2817, April 26, 1958, and promulgated new Rules of Practice (Page 2794) applicable to pending cases as well as new cases. Although the Department has always believed that there was in fact a separation

of functions under our former Rules and delegation of authority, this most recent reorganization should eliminate any question as to the proper separation of prosecutive and adjudicative functions. The Judicial Officer took no part in the preparation or prosecution of this case. The exception is disallowed.

The eighth exception is to the failure to afford the right to oral argument. There is no provision under either the former Rules of Practice (39 C.F.R. 201.1, et seq.) or the new Rules of Practice, for oral argument. There is no absolute requirement that an agency or department provide for oral arguments. Ex Parte Bridges, 49 F. Supp. 293, 304 (Reversed on other grounds 326 U.S. 135); Morgan v. U.S., 298 U.S. 468, 481.

The findings of the Examiner are affirmed and adopted. U.S. v. Roth, supra; U.S. v. Hornick, 229 F.2nd 120; Klaw v. Schaffer, 151 F. Supp. 534, affirmed C.A. 2nd January 31, 1958.

An appropriate order will issue.