In the Matter of the Petition by ) April 19, 1960 ) GILBERTON WORLD-WIDE PUBLICATIONS, INC. ) 101 Fifth Avenue ) P.O.D. Docket No. 1/158 New York 3, New York ) ) for a hearing upon its application for ) second-class entry of "THE WORLD AROUND ) US." ) APPEARANCES: Morris D. Schwartz, Esq. 711 14th Street, N.W. Washington, D. C. for the Petitioner Adam G. Wenchel, Esq. and Dean M. A. Murville, Esq. Post Office Department for the Director of the Postal Services Division Kelly, Raymond J. POST OFFICE DEPARTMENT Washington 25, D. C.
Having determined that the Departmental Decision of the Judicial Officer may be reconsidered and the proceeding reopened by order entered herein on April 18, 1960, to which reference is hereby made and having therein ordered the hearing reopened and the decision reconsidered, the matter will be further considered herein. In an effort to conserve the time of the Judicial Officer and Counsel, the Judicial Officer had on the same day already heard arguments on the merits of the motion to reopen the hearing and reconsider the Departmental Decision heretofore entered herein.
Respondent points out in the motion filed herein on March 7, 1960, that the Departmental Decision filed on February 26, 1960 contained substantial errors of law in that:
1. it is predicated upon the assumption that the pertinent regulations are those of the Director, Respondent herein, whereas they are promulgated by the Postmaster General, that;
2. it is predicated in part on an alleged failure to have regulations covering matters in which the Judicial Officer felt there should be regulations, that;
3. it improperly places the burden of proof on the Respondent, that;
4. it is inconsistent with legal principles held by the Judicial Officer in previous decisions and that;
5. by predicating his decisions on the above errors of law the Judicial Officer reached an erroneous conclusion regarding Exhibits 11, 12 and 13.
Petitioner in his reply to Respondent's motion admits the regulations are promulgated by the Postmaster General and contends:
1. that the Departmental Decision contains a typographical error in referring to the regulations by Director instead of Postmaster General and that is not a "substantial error", that;
2. the Departmental Decision is not based on inadequacy or lack of regulation - it merely comments that the absence of regulation should not operate against an applicant Petitioner, that;
3. the failure of the Director to specify how many pages of different subjects should be included should likewise not operate against the Petitioner, that;
4. the Respondent has misinterpreted the decision with respect to the burden of proof and that;
5. the Judicial Officer did not base his decision on the silence of the Respondent nor the failure to have regulations and that;
6. the real basis for the decision of the Judicial Officer rested upon the fact that the disputed issues, exhibits 11, 12 and 13 contain sufficient variety of subjects to take them out of the rule laid down in Supreme Court Decisions, and that it was not a "substantial error."
Petitioner further in his reply insists that under the record in this cause, the three exhibits in question here contain sufficient variety of articles to take each of them out of pertinent court decisions and since there is no statute nor rule of law spelling out how many different articles are required or how many pages of these articles each issue must contain that the Judicial Officer had a right to apply his own legal judgment in making his determination herein.
Finally, Petitioner contends that the review by the Judicial Officer on appeal from the Hearing Officer's Initial Decision wherein the Judicial Officer acts as the "delegated authority" speaking for the Postmaster General is in conformity with the Administrative Procedure Act and is not subject to any reconsideration within the Post Office Department.
Regardless of the claims and counter claims of the parties herein, the important matter to be determined on this reconsideration of the case on the record already made is whether the questioned exhibits comply with the law, the rules and regulations and court decisions regarding second-class entry. These general principles have been quite clearly established and when a publisher submits his publication to be carried in the mails, the classification to which it is entitled is determined by the Post Office officials in accordance with the statutes, established rules, regulations and court decisions. The standards to be followed seem fairly well established. The publisher here apparently recognized that his publication was not entitled to second-class entry and so made some inquiry and received some general statement from an official of Respondent and following this made some changes in the three issues here in question. In these three issues of the publications, four one page articles on material not related to the main topic of the publication were inserted. To hold that a determination of literary continuity or completeness can be based on the number of pages to be added is unrealistic. The addition of these articles in these issues certainly did not change the character of the publication. Substantially these three issues are of the same character as the first ten which both the Hearing Examiner and the Judicial Officer held were not entitled to second-class entry.
In Smith v. Hitchcock, 226 U.S. 53, the court pointed out that the publications there in question contained 32 pages including a page of advertisements exclusive of the cover - that 26 of these 32 pages were filled by the story and so held them to be books and not entitled to second-class entry. Mr. Justice Holmes in his opinion stated as follows:
"The noun periodical, according to the nice shade of meaning given to it by popular speech, conveys at least a suggestion if not a promise of matter on a variety of topics, and certainly implies that no single number is contemplated as forming a book by itself. But we can approach the question more profitably from the other end, and shall have gone as far as we need when we decide whether the numbers exhibited constitute so many books. The word book also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. For purposes of copyright the common monthly magazines may be books, yet they are not so under the present § 17. As books are not turned into periodicals by number and sequence, the magazines are not
brought into the third class by having a considerable number of pages stitched together. Without attempting a definition we may say 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."
These clearly are not "periodical publications" within the meaning of Sections 224 and 226 of Title 39 United States Code. 1/
A periodical is a publication which appears at stated intervals and contains a variety of original articles by different authors devoted to general literature or some special branch of learning or to a special class of subjects. Each issue of a periodical is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series, Houghton v. Payne, 194 U.S. 88. The record here discloses that the four one page articles in the eighty page publication does not change the character of the publication in any substantial way from the first ten issues and these also must be held to be books and not periodicals.
On reconsideration therefore the Departmental Decision entered by the Judicial Officer on February 26, 1960, so far as it applies to Exhibits 11, 12 and 13 - the last three issues of the publication here involved, is vacated and set aside.
It is further hereby determined as set forth in this decision above that the Initial Decision of the Hearing Examiner was correct and that the Departmental Decision of the Judicial Officer was likewise correct except as to the last three issues and as to those it must be reconsidered and changed as herein indicated.
I therefore find that the last three issues of the publications are books and not periodicals and are not entitled to second-class entry. To that extent the Departmental Decision of February 26, 1960, is vacated and second-class entry for those three issues is hereby denied. The balance of that decision with the changes made by this amended Departmental Decision shall stand as the final Departmental Decision herein.
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 s to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.