In the Matter of the Petition by ) March 30, 1960 ) T. V. REPORTER, INC. ) 1472 Broadway ) New York 36, New York ) P.O.D. Docket No. 1/142 ) for a hearing upon its application ) for second-class entry for FUN CROSS- ) WORDS MAGAZINE, JIFFY CROSSWORDS MAGA- ) ZINE, SNAPPY CROSSWORDS MAGAZINE, and ) VERI-BEST CROSSWORDS MAGAZINE. ) APPEARANCES: Stanley M. Estrow, Esq. 60 East 42nd Street New York, New York for the Petitioner Jack T. DiLorenzo, Esq. Eugene P. White, Esq. Office of the General Counsel Post Office Department for the Respondent Kelly, Raymond J. POST OFFICE DEPARTMENT Washington 25, D.C.
The Petitioner herein applied for original second-class entries for its publications "Snappy Crosswords Magazine" and "Veri-Best Crosswords Magazine" at the Derby, Connecticut Post Office on July 16, 1958.
Petitioner likewise applied for an original second-class entry for its publications "Fun Crosswords Magazine" and "Jiffy Crosswords Magazine" at the Derby, Connecticut Post Office on June 5, 1958.
The Director, Division of Postal Services, Bureau of Operations, Post Office Department, the Respondent herein, notified the Petitioner on April 9, 1959, that all these applications were being denied. The reasons assigned by the Director of Postal Services Division for the denial of the application for admission to second-class mail privileges of the
above publications were (with the name of publication changed) in each instance as follows:
"The copy of the September 1958 issue of 'Fun Crosswords Magazine' submitted for consideration with the application is not a periodical publication within the meaning of Sections 224 and 226 of Title 39, United States Code (Section 132.211, Postal Manual), but rather a 'book'".
"It is neither originated and published for the dissemination of information of a public character, nor is it devoted to literature, the sciences, arts or some special industry as required by Title 39, United States Code (Section 226 and Section 132.224, Postal Manual)".
"The copy consists primarily of novelty pages within the meaning of Section 132.483, Postal Manual, and is therefore not such a publication as is entitled to second-class mail privileges under 39 U.S.C., 224 and 226."
None of the publications here involved has ever enjoyed the second-class entry.
The Petitioner appealed from the ruling by petition for review filed May 1, 1959, and the Respondent Director filed answer on May 21, 1959. The hearing in which all four matters were consolidated was held before a Hearing Examiner on October 7, 1959, in New York City.
At this hearing the parties agreed that there were three issues involved in this proceeding as follows:
1. Are the publications periodical publications within the meaning of Sections 224 and 226 of Title 39, United States Code? 1/
2. Are the publications originated and published for the dissemination and information of a public character or devoted to literature, the sciences, arts or some special industry?
3. Do the publications consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual? 2/
At the opening of this hearing the Respondent moved to amend the answer of the Director to state as an additional ground for the denial of second-class entry that each of these publications is designed primarily for free circulation within the meaning of Section 22.2b(7) of Title 39, the Code of Federal Regulations, which section is also reproduced as Section 132.227 of the Postal Manual. This motion was denied by the Hearing Examiner, who then proceeded to take testimony in the matter.
The Hearing Examiner filed his Initial Decision on February 5, 1960, in which he found that as a matter of law the publications
2/ .483 Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for an intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages. An excessive use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:
a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.
b. Pages having printed pictures for cutting out.
c. Printed pages having blank spaces for writing or marking.
d. Pages having printed illustrations pasted to them.
e. Pages with coupons or application or order forms occupying not more than one-half of the page.
involved in this proceeding do not meet the requirements of Sections 224 and 226 of Title 39, United States Code and Section 132.483 of the Postal Manual and denied the Petitioner's application for entry of the publications, "Snappy Crosswords Magazine", "Fun Crosswords Magazine", "Jiffy Crosswords Magazine" and "Veri-Best Crosswords Magazine" into the mails as second-class matter. The Petitioner here seeks review of that decision and asks for a reversal thereof.
Timely appeal was taken from the Initial Decision of the Hearing Examiner and Petitioner's brief and exceptions were duly filed. Respondent's reply brief was filed March 11, 1960. Therein Respondent replied briefly to points raised by Petitioner's exceptions and requested the Judicial Officer to give consideration to all points raised by Respondent in his brief filed with the Hearing Examiner on December 30, 1959, except as to Point IX to which no exception was taken to the Hearing Examiner's decision and which Respondent therefore does not press.
In this appeal counsel for the Petitioner sets forth fifteen exceptions to the Hearing Examiner's Initial Decision. He then launches into an argument wherein he lays great stress upon the fact that for many years the Petitioner and other publishers similarly situated had enjoyed unhindered and unquestioned second-class mailing privileges for crossword puzzle magazines. In developing his argument, however, counsel for Petitioner far overstepped the bounds of propriety in the use of intemperate and vitrolic language. He charges the Postmaster General with "carrying on a vendetta against crossword puzzle magazines," and continues to argue that since previous Postmasters General as well as the present Postmaster General had for a period of nearly thirty years permitted second-class entry to crossword puzzle magazines, they should not now be denied entry. He contends that "it is a travesty upon justice*****for the present Postmaster General to set himself up as having greater wisdom and understanding than did his predecessors."
Counsel for Petitioner further sets out the following statements in his brief:
"The sudden reversal on the part of the Post Office Department cannot be justified by a mealy mouth assertion that everybody was wrong up to the present time. There is more here than meets the eye." and again
"Any attempt at evasion, concealment or any dealing with any member of the public which has the practical effect of discriminating against that person calls for immediate correction by such agency." and yet again
"A simplification of the present position of Postmaster General is: 'I don't care what has been done before by my predecessors, I am now making the rule to suit my present needs.'"
Furthermore in his argument on point four of this brief, counsel for Petitioner in criticizing the Hearing Examiner's finding in regard to the point therein raised again uses such language as:
"the Hearing Examiner's snide reference to these books and his attempt to belittle them because there is no reference to crossword puzzles in them is completely unwarranted and unfounded." and again
"He has the gall to indicate that in his opinion there is a better method of learning or of educating one's self." and again
"He is not analyzing the testimony - this is his testimony." and again
"The Hearing Examiner would do well on the staff of counsel to the respondent. He has destroyed his usefullness as a non-biased or non-prejudicial tryer of the facts. He has become a special pleader for the respondent." and yet again
The Hearing Examiner's attempt to twist Mr. Lippert's testimony****is reprehensible."
It is unbelievable that a member of the bar would use such improper language in a document filed in a quasi-judicial proceeding. It seems to be the gist of his argument that, regardless of the law in the matter, regardless of whether or not through error, misunderstanding or misinterpretation of the law and even though the crossword puzzle books were illegally granted entry originally nothing should be done about them now. His argument in this regard sounds woefully like an argument which would be made by a small boy who was caught with his hand in the cookie jar and who argues that he should be permitted to continue to take cookies because he had successfully taken them in the past without hindrance. The counsel for Petitioner's violent use of language in his intemperate argument in this regard adds nothing to the presentation of the merits of the case nor to the stature of the advocate.
Petitioner's brief sets out fifteen separate points to which exceptions are taken. These points will be considered under the three stipulated issues agreed upon by the parties at the beginning of the hearing.
The Hearing Examiner has accurately described these publications in his Initial Decision and this description is hereby adopted.
Second class entry is a privilege granted by Congress to facilitate the dissemination of intelligence. It is a government subsidy for "periodical publications" devoted to literature, the arts, the sciences or some special industry or originated and published for the dissemination of information of a public character.
Petitioner argues in his brief that because crossword puzzle magazines had enjoyed second-class entry for some years and that because the present Postmaster General had only recently taken action to bar second-class entry to this type of a publication and that because they had enjoyed this privilege heretofore it should not now be taken away nor should others desiring this type of entry be barred. It would seem, however, that regardless of action taken by previous Postmasters General or their failure to take action in this regard or even the failure of the present Postmaster General to act previous to this proceeding against similar publications cannot be a bar to proper action herein if in fact the publications here involved do not qualify under the law for such entry. To persist in error once ascertained is far worse than making an original error through mistake, oversight or inadvertence.
Taking up the issues in order as they are set forth by the stipulation of the parties herein. The first is stated as follows:
1. Are the publications "periodical publications" within the meaning of Sections 224 and 226 of Title 39 U.S.C.?
Petitioner contends that the distinction originally drawn between a periodical publication and a book was that a book was primarily intended for permanence whereas a periodical publication was looked upon as a cheap and inexpensive form of reading material intended to be discarded after it served its purpose and this was the reason for the establishment of second-class mailing privileges. He likewise contends that, because crossword puzzles were unknown at the time the cases cited by the Hearing Examiner 3/ in support of his conclusion that these are not periodical publications were decided, these cases and others of similar import should not have been considered. With this I can not agree. Legal principles clearly stated have always applied where the same principles are at issue although the facts may be different.
The Petitioner contends that the publications here involved are "the periodical publications", because certain features mentioned in the testimony give the publications "literary continuity" which is shown in the Petitioner's exhibits D, E, F and G. However, the evidence does not establish that a literary continuity is present in any of these publications and the Hearing Examiner's conclusions that these articles "betray no need for continuation" and no continuation or continuity exists and that there is no literary or other continuity in Petitioner's publications as would make them "periodical publications" are correct. Each issue of each of these publications is entirely complete within itself and is almost completely devoted to crossword puzzles and their answers and the Hearing Examiner's conclusion that these publications are books is well founded.
The second issue here involved is set forth as follows:
"Are the publications originated and published for the dissemination and information of a public character or devoted to literature, the sciences, arts or some special industry."
The Hearing Examiner points out in what respect these publications lack "literary continuity" and a review of the record supports the Hearing Examiner's findings. There is no question but that the publications here involved are "high type publications," but it is evidence from the record that each of these publications and each copy thereof stands out separate and distinct from every other one and that each copy would be just as interesting to the solvers of the puzzles, a year or even more after publication as at the time each was issued. As respondent points out the meaning of "literary continuity" is "such a similarity from number to number as would normally enable a person to realize he is reading a number of the same publication." A few minor articles carried in each of the publications do not make for what is meant by "literary continuity." The articles had nothing to do with the crossword puzzles and anyone purchasing a copy of any of these publications would obviously not pay for the articles therein but for the puzzles each issue contains. In Houghton v. Payne, 194 U.S. 88, the Court said (page 98):
"It is sufficient to observe that, in our opinion, the fact that a publication is issued at stated intervals, under a collective name, does not necessarily make it a periodical. Were it not for the fact that they are so issued in consecutive numbers, no one would imagine for a moment that these publications were periodicals and not books. While this fact may be entitled to weight in determining the character of the publication, it is by no means conclusive, when all their other characteristics are those of books rather than those of magazines."
In the case of Bates and Guild Company v. Payne, 194 U.S., page 106, the Court stated at page 110:
"****the question really is whether a pamphlet complete in itself treating of the works of a single master with a greater part of the pamphlet devoted to specimens of his genius shall be controlled by the cover which declares that these numbers shall be issued monthly at a certain subscription price per year. Although a comparison of the exhibit with the statute may raise only a question of law, the action of the Postmaster General may have been to a certain extent guided by extraneous information obtained by him so that the question involved would not be found merely a question of law, but a mixed question of law and fact."
A crossword puzzle publication such as here involved would not be an effective tool for educational purposes. They are not used by educational institutions for this purpose. The only educational publication discussed herein was a book on the French language which contained one simple crossword puzzle. Although some persons in working puzzles may occasionally learn a new word or a new meaning for a word, this is only incidental and accidental to the main purpose of the crossword puzzles which is entertainment, a means of occupying spare time or a sort of a game.
The last issue is stated as follows:
"Do the publications consist primarily of 'novelty pages' as that term is defined in section 132.483 of the Postal Manual?"
Section 132.483 of the Postal Manual sets forth the meaning of novelty pages. It reads in part as follows:
"Novelty pages are printed sheets that may be used for purposes other than reading or printed sheets with novel characteristics. Novelty pages must be prepared specifically for and intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages and excessive use of novelty pages may give a publication the characteristics both as to format and purpose of books, catalogs or other third or fourth class mail."
The Hearing Examiner has found that each of these publications which are similar in size and format and are approximately 5" x 7" in size, contain approximately 100 pages of which more than 80 pages are puzzle material are books and not periodicals. He points out that about six pages are answers to the puzzles, less than ten pages of miscellaneous narrative matter not related to the puzzles, two pages of advertising, one page of other miscellaneous matter and one cover page. Thus the pages devoted
to the puzzles comprise eighty-five percent of the total and certainly constitute far more than a "minor portion" of the total pages.
In Houghton v. Payne, 194 U.S. 88, the Supreme Court held that although the publication was in the form of a magazine and as such met the requirements of second class, the contents was a complete book within itself and was not entitled to the second class subsidy. The court said:
"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."
In Smith v. Hitchcock, 226 U.S. 53, Mr. Justice Holmes speaking for the court said:
"Without attempting a definition we may see that generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need of continuation and perhaps have an appreciable size."
The canon of contemporaneous construction was not here violated. The classification statute was passed in 1879 - it was well over thirty years thereafter before crossword puzzles were heard of and probably fifty years before any were granted second-class entry. Contemporaneous construction should be made at or near the time this statute was enacted but regardless thereof if it should appear that the construction although contemporaneous was wrong, the courts will not uphold it. The Houghton case (supra) provides ample authority for this rule.
Petitioner contends the Hearing Examiner failed to comply with section 204.18(c) of the Rules.
The concluding paragraph of the Initial Decision of the Hearing Examiner is as follows:
"Proposed findings of fact and conclusions of law submitted by the parties have been fully considered and they are adopted to the extent herein indicated. Otherwise such proposed findings and conclusions are denied for the reasons stated or because of their immateriality."
Taking the text of the decision of the Hearing Examiner as a whole, it is clear that the rule was complied with and it is plan which proposed findings of fact and conclusions of law were adopted and which denied with the reasons for the action taken. Some were covered specifically, others were denied generally because they were immaterial.
I therefore find that on the record the Initial Decision of the Hearing Examiner must be sustained. The exceptions of the Petitioner are disallowed. The recommendations of the Hearing Examiner are adopted.
1/ § 224. Second-class matter. Mailable matter of the second class shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year and are within the conditions named in sections 225 and 226 of this title. ?226. Same; conditions admitting publications to. Except as otherwise provided by law, the conditions upon which a publication shall be admitted to the second class are as follows: First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively. Second. It must be issued from a known office of publication. Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications. Fourth. It must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers. Nothing herein contained shall be so construed as to admit to the second class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.
2/ .483 Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for an intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. The total number of novelty pages in the copies may constitute only a minor portion of the total pages. An excessive use of novelty pages may give a publication the characteristics, both as to format and purpose, of books, catalogs, or other thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:
a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.
b. Pages having printed pictures for cutting out.
c. Printed pages having blank spaces for writing or marking.
d. Pages having printed illustrations pasted to them.
e. Pages with coupons or application or order forms occupying not more than one-half of the page.
3/ Houghton v. Payne, 194 U.S. 88; Smith v. Hitchcock, 226 U.S. 53.