In the Matter of Petitions by CANDAR PUBLISHING CO., INC. New York, New York Publisher of "FRENCH CARTOONS AND CUTIES" and "COLLEGE LAUGHS" for an order to show cause why its applications for second-class entry should not be granted. P.O.D. Docket No. 1/44 October 9, 1958 Edward Carlick Hearing Officer. POST OFFICE DEPARTMENT, WASHINGTON, D.C.
This proceeding was instituted by the Candar Publishing Co., Inc., hereinafter referred to as the petitioner, on August 13, 1958, pursuant to the appropriate Departmental procedures, 1/ for the purpose of obtaining a Departmental order granting second-class mail privileges to its publications entitled "French Cartoons and Cuties" (hereinafter referred to as "French Cartoons") and "College Laughs." Answer was duly filed by the
The sole issue in this proceeding is whether the aforesaid magazines are "periodical publications" within the meaning of 39 U. S. Code 221 and 224.
The relevant and material evidentiary portion of the record consists of various documents pertaining to the background of this proceeding, that is, of the circumstances and events relating to the deposit of the magazines as second-class matter and the proposed denials by the respondent; all of the issues of each magazine with the exception of the latest ones; and the testimony of the "General Manager" of the magazines. As part of the physical record submitted in the form of a proffer of proof are a number of other magazines rejected as not being relevant proof, reference being made to the reasons stated at the hearing for their rejection and in the denial of the aforesaid motion to reopen the hearing.
The following six proposed findings of fact by the petitioner being uncontested by the respondent and supported by the evidence are granted:
1. "That the magazine 'French Cartoons' was regularly issued on a bi-monthly basis from October, 1956, and is still being published up-to-date."
2. "That 'College Laughs' has been issued on a regular bi-monthly basis from October, 1956, and up-to-date and is still being published."
3. That "each of these magazines, is prepared from new or original material selected for each issue and there is no reprint material in them, prepared by variety of authors and artists."
4. "That each issue of the magazines carried a volume and serial number as well as a date and price, together with a subscription notice in the mast head of each copy."
5. "That each issue of 'College Laughs' and 'French Cartoons' has appeared with exactly the same title on its cover ..."
6. That the two publications "have a legitimate list of subscribers."
7. DESCRIPTION OF THE MAGAZINES: Each is approximately 5 x 7 inches in size containing printed sheets and with soft covers. In the main each magazine is composed of jokes and cartoons. In the magazine "college Laughs" several pages are devoted to textual matter called "Campus Tips," which commenced in the November, 1957, issue. Likewise in the magazine "French Cartoons" commencing with the November, 1957, issue and appearing in almost each issue, an article entitled "Going to France." There appears also in the "French Cartoons" magazine various headings such as "Paris Tips," "French Frolics" and occasionally a two-page or three-page strip called "Hungry Henry." Many of the cartoons or jokes in each of these magazines may be characterized as being of a smutty type.
8. An examination of the magazines in question shows and I so find, that they do not have "the feature of periodicity" or "a continuity of literary character," as discussed in the leading case on the issue before me of Houghton v. Payne , 194 U.S. 88, cited by respondent. In that case the Supreme Court stated:
"* * *Under Section 10 the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. * * *
* * * * * * * *
A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. * * * connection between the subjects and
* * * literary continuity. * * *"
The various jokes or cartoons in the "French Cartoons" magazine appear to obtain its French character merely by the insertion of a French sounding name or geographical setting which in most instances are of no significance to the jokes themselves. In other words most of the jokes employing such background would be of equal effect if any other name or geographical setting was adopted. This is likewise true of the other magazine, that is, most of the jokes and cartoons having a college background have no particular significance for the effectiveness of the joke or cartoon. Petitioner admits that the authenticity of the material was not the endeavor made for these magazines (Tr. 73). The various so-called "Departments" in these magazines are so submerged that they have no particular significance as constituting a separate "department." In this connection it is noted that there is no contents listing for these magazines. In other words, each of the magazines is merely a publication of general and sundry jokes and cartoons of a general nature and therefore there is no continuity of literary character within the meaning of the cited case. It may be stated here that whether or not these magazines constitute good literature or are worthwhile is not involved. In said case the court stated that "if, for instance, one number was devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection with the subjects and no literary continuity." Petitioner's argument (Tr. 90) that each magazine carries a continuity within the meaning of such quoted language in that one magazine pertains to college and the other "has a whole series of cartoons relating to France" (Tr. 90) is not substantiated for the reasons stated. Accordingly, I further reject petitioner's proposed findings to the effect that each of the magazines has a continuity of editorial approach and manner showing a recurrence of the same "special fields of humor" (Tr. 85) and petitioner's further proposed finding that each magazine contains certain regular headed articles though granted as above indicated, is of no significance as discussed.
I, therefore, find as proposed by respondent that each of the magazines in question consists "of a separate collection of jokes, cartoons and other pictures without the legally required continuity between successive issues except in the title, and that each issue is a completely separate, unrelated unity, forming in effect a book by itself" (Tr. 77).
I conclude that the publications "French Cartoons and Cuties" and "College Laughs" are not periodical publications within the meaning of 39 U. S. Code 221 and 224. Houghton v. Payne , supra . 2/ I, therefore, recommend that the applications of Candar Publishing Co., Inc., for second-class mail privileges for these magazines, be denied.
1/ PROCEDURES GOVERNING ADMINISTRATIVE HEARINGS RELATIVE TO THE DENIAL, SUSPENSION OR ANNULMENT OF SECOND-CLASS MAIL PRIVILEGES. According to the petitions commencing this proceeding application was filed by the publisher with the appropriate postmaster on October 25, 1956, for second-class entries for the publications. The petitioner was subsequently informed by the particular division handling this matter that the publication "French Cartoons and Cuties" was regarded as nonmailable under 18 U. S. Code 1461, that is, it was proposed to deny the application because the magazine was considered obscene. The publisher was advised by said division in regard to the other publication that it was considered as not being a periodical publication within the meaning of the pertinent statute. Later the publisher was informed by said division, specifically by communication dated August 14, 1958, from the General Counsel to the effect that the publication "French Cartoons and Cuties" was not now regarded as being nonmailable under the aforesaid cited statute but that "it remains our opinion that they do not constitute periodical publications..." For various reasons including misunderstandings between the General Counsel and/or the Director and the publisher, the petitions were not filed until the stated date.
General Counsel of the Department for the Director, Postal Services Division, hereinafter referred to as the respondent, and on request of petitioner, a so-called "Bill of Particulars." On September 3, 1958, this case was reassigned to me and was duly heard before me on the scheduled date of September 10, 1958. Prior to the close of the hearing both parties submitted orally proposed findings of fact, conclusions of law and supporting reasons. However, before the receipt from the reporter of the transcript with the exhibits, petitioner filed on September 18, 1958, a motion to reopen the hearing and for other relief in accordance with Rule 201.40(v)(7). Response thereto was filed by respondent on October 6, 1958, and thereafter a ruling was issued denying the motion. Thereupon the case was completed for this report.
2/ The latest Departmental Decision on this issue as cited by the respondent is entitled In the Matter of Humor Digest, Inc., H.E. Docket No. 5/152. (Departmental Decision dated February 7, 1958, petitioner cites none). The magazine involved in this cited proceeding does not differ substantially insofar as the issue herein involved is concerned, from the magazines in this proceeding.