In the Matter of the Petition By

 CAMERARTS PUBLISHING CO., INC.
 3755 West Armitage Avenue,
 Chicago 47, Illinois

 for a hearing upon its application on for second-class entry
 of "MEN'S DIGEST."

 P.O.D. Docket No. 1/66

 December 29, 1958

 Edward Carlick Hearing Officer

 POST OFFICE DEPARTMENT, WASHINGTON, D.C.

This proceeding was instituted by the above-named Petitioner pursuant to the appropriate Departmental procedures, for the purpose of obtaining a Departmental order granting second-class mail privileges to its publication entitled "Men's Digest." Answer was duly filed by the General Counsel of the Department for the Director, Postal Services Division, hereinafter referred to as the Respondent, and in response to a motion of Petitioner for a bill of particulars, furnished a list of the articles, stories, photographs and other items claimed to provide the magazine's dominant theme. On request of Petitioner the hearing in this matter was continued from the original date of October 28, 1958, to November 19, 1958, on which date the hearing was conducted before me, the Petitioner being represented by his authorized attorney, John D. Vosnos, Esq., and the Respondent by a member of the staff of the General Counsel, Saul J. Mindel, Esq. At the conclusion of the hearing on request of counsel for Petitioner, unopposed by counsel for the Respondent, proposed findings of fact, conclusions of law and supporting reasons were to be filed not later than December 18, 1958. Respondent duly filed his proposed findings and conclusions but Petitioner failed to file same. Thereupon this case was completed for this report.

The sole ground for the denial of Petitioner's requested relief and which is the only issue in this case, is the question of whether the magazine as represented by three issues in evidence ¹/ are nonmailable under 18 U. S. Code 1461 as being of an obscene, lewd, lascivious and indecent nature.

As correctly agreed at the hearing (Tr. 3) the magazine itself constitutes the only relevant and necessary evidence for determination of this issue. U. S. v. Kennerley , 209 Fed. 119; Rosen v. U. S. , 161 U. S. 29; U. S. v. Two Obscene Books , 92 Fed. Supp. 934, 99 Fed. Supp. 760; Tourlanes Publishing Co. v. Summerfield , 143 F. Supp. 243, aff'd. 252 F.2d 333.

Having read and examined the three issues in question I find by application of the tests given in Roth v. U. S. , ²/ 354 U. S. 476, and U. S. v. Levine , ³/ 83 F.2d 156, cited with approval in the Roth case, that these issues are obscene, lewd, lascivious and indecent as claimed by the Respondent.

The magazine is approximately 5 x 7 inches in size and consists of approximately 75 pages. Its articles include "True Adventure," "True Crime" and "fiction." These are represented by such titles as "Kidnapped by 100 Sex-Starved Females]", "Chastity Belts for Men," "I Was A Love Slave]" The magazine also has a "pictorial" section having a title such as "A 40 Inch Bust" with full page photographs of young, shapely, voluptuous and bosomy models in the nude or semi-nude. The breasts are almost entirely exposed and the models shown in a sexually provocative attitude. Only about two items or articles do not have sex as their subject. It is recognized, of course, as stated in the Roth case that "sex and obscenity are not synonymous." However, practically all of the articles, stories, gags, cartoons and photographs deal with sex in such a manner as to appeal to prurient interest, that is, would tend to arouse in the average person impure sexual desires or thoughts and considered in its entirety such is the dominant theme of the magazine. It is further evident from the magazine itself, that the publisher is deliberately pandering to the prurient. See the concurring opinion of Chief Justice Warren in the Roth case.

I further find as evidenced by the three issues of the magazine, that the Petitioner has failed to show that the magazine in question "will continue to contain only mailable matter." Houghton v. Payne , 194 U. S. 88.

I conclude that the publication "Men's Digest" is not entitled to second-class entry in view of its nonmailable character as above found. I, therefore, recommend that the application of the Petitioner for second-class mail privilege for the magazine be denied.

1/ Vol. 1, No. 6 (date of issue not given in magazine); Vol. 2, No. 1, issue 7, July, 1958; and Vol. 2, No. 2, issue 8, September, 1958.

2/ "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

3/ Whether the salacity of the material "outweighs any literary, scientific or other merits" the magazine may have in the hands of the reader.