In the Matter of the Petition by BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY & AGRICULTURAL AND MECHANICAL COLLEGE Proposed Revocation of Second-Class Mail Privileges for publication "LSU" and "LSU-NO" now UNO" P.S. Docket No. 3/191August 20, 1975
William A. Duvall Chief Administrative Law Judge
William S. McKenzie, Esq., Taylor, Porter, Brooks & Phillip Post Office Box 2471, Baton Rouge, Louisiana, for Petitioner Arpad de Kovacsy, Esq., Law Department, United States Postal Service, Washington, D.C., for Respondent Before: William A. Duvall, Chief Administrative Law Judge
The Petitioners in this proceeding are Louisiana State University, at Baton Rouge, Louisiana, and the University of New Orleans, which is a breach of Louisiana State University. The
Respondent in this proceeding is the United States Postal Service. The action which precipitated this proceeding was the issuance of a notice by the Respondent that it was proposed to revoke the second- class mailing privileges for the publications known as "LSU", and "UNO".
The issue in each situation is whether the publication is a "periodical publication" within the meaning of 39 U. S. Code 4351 and 4354; within the meaning of applicable Postal regulations; and in the light of various decisions of the Courts, particularly the decision of the United States Supreme Court in the case of Houghton v. Payne , decided in 1904 and reported at 194 U.S. 88. In that case the Court was called upon to construe a statute that contained language which is very similar to the language contained in the Code sections cited above. The Court pointed out that the Congress, in enacting the statute then under consideration, used the term "periodical", but that the Congress did not define that term.
The Court noted this deficiency and proceeded to supply a definition, which reads as follows:
"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. If, for instance, one number were 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 between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.
This definition has been followed for years by the Postal Service and by its predecessors, the Post Office Department.
Counsel for the Petitioners points out that second-class mailing privileges have been held for its publication by the Baton Rouge Campus of Louisiana State University since 1904, and that the University of New Orleans has held such privileges for its publication since 1969. It is the position of both Petitioners that the Postal Service may not now, after the passage of this long period of time, take action to revoke the previously-existing second-class mail privileges for these institutions of learning. This question was present also in the Houghton case and in the majority opinion in that case there is the following expression (194 U.S. 98):
"Great stress is laid by counsel upon the original interpretation of the term 'periodical,' as applied to these books, which it is said was continued without change under different adminis- trations and by several successive Postmasters General, and from 1879, the date of the passage of the act, until 1902, when the certificates granted by the former Postmasters General were revoked by the defendant and a different classi- fication made of the publications now in issue.***"
That question continued, but that is so much of it as is presently pertinent.
Later, on page 99, the Court said the following:
"Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It does not preclude an inquiry by the courts as to the original correctness of such construc- tion. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute."
Even the minority said in its dissenting opinion, which was written by Mr. Justice Harlan:
"Of course, if the departmental construction of the statute in question were obviously or clearly wrong, it would be the duty of the court to so adjudge."
The situation that existed at the time of the Houghton decision is not unlike the situation that exists with respect to this proceeding, although I would hasten to point out that when Houghton v. Payne was decided, the publication under consideration at that time had enjoyed second-class privileges for only a period of about 16 years, as opposed to LSU, which now has had such privileges for a period of about 73 years. That is a difference, I suggest, of degree and not really in principle.
To reach a resolution of the issues in this proceeding, it is necessary to examine the various publications issued by these two institutions. And, in that connection, I will discuss the publication called "LSU" first. After that, I will take up the publication designated "UNO."
There were received in evidence in this case, four complete volumes of the publication LSU, and from those four I chose three at random. And, the three that I chose were for the years '72-'73; '73-'74; and '74''75.
The General Catalogs that I examined were received in evidence as Respondent's Exhibits 24, 12 and 18, being, respectively, the General Catalogs for the years '74-'75; '72-'73; '73-'74. In these particular publications it appears that the content is divided approximately equally between material that could properly be categorized as articles and material which is for the year '72-'73; and Respondent's Exhibit 22, which for the year '73-'74. The content of these numbers in the series, quite predominantly is of material that would not, and I believe could not, be classified as articles. For example, in Exhibit 28, there are 41 pages which appear to me to be articles, as opposed to 159 pages which are not articles. In Respondent's Exhibit 15, 44 pages could be classified as articles, and there are 160 pages of material that could not be classified as articles. Similar figures for Respondent's Exhibit 22, would be, respectively, 48 pages of articles, 178 pages, not articles.
The next Bulletin that was examined, was the one for the School of Library Science. In this series, Respondent's Exhibits 25, 16 and 20 were examined. These Exhibits are applicable, respectively, to the academic years, '74-'75; '72-'73; '73-'74. After examining these Bulletins, I did not go to the trouble of counting the pages regarded to be articles and pages which were regarded not to be articles, for reasons which I will later explain.
The last Bulletin examined was the Bulletin for the Law School, and there were three of these which were examined: Respondent's Exhibit 29, applicable to the year '74-'75; Respondent's Exhibit 17, applicable to year '72-'73; and Respondent's Exhibit 21, applicable to the year '73-'74. Again, the pages of article or non-articles, were not counted for the reason that to do would not necessary in order to reach a decision with respect to those Bulletins.
Because these cases revolve around the same issue, and because they appear to be so similar from the standpoint of certain facts, I'll move right on to the University of New Orleans.
In connection with the University of New Orleans, I first examined the General Catalog. The particular Exhibits that I examined were, UNO 3 (1); UNO RX-8. The first of these Exhibits is for the academic year '75-'76, and the second of those Exhibits is for the academic year '74-'75. These publications are so similar that it is obvious that the material that is in the earlier issue is carried for forward to the subsequent issue with just those changes that are made necessary by changes in personnel or instances in which a course is dropped or another course added, or a change is made in a certain figure as in amounts of money for fees and dates and so forth, as necessary. Some illustrations of the previous statement would be that in one of the publications the subject of University regulations is taken up at page 75. If one looks in the other publication he finds the same subject is begun on the same page number. The same thing is not quite true with respect to the subject of University discipline. In one of the issues the subject of discipline is discussed on page 93, but in the other issue the subject is discussed on page 94. But, the editors were able to get back together again on a subject of the curriculum for Physical Education, since in both of the publications the subject appears at page 125.
The next catalog examined was the Graduate Catalog. There were two of these that were examined and they are identified as UNO RX-7, and UNO RX-6, being, respectively, the catalogs for the academic years '74-'75; and '72-'73. The bulk of the contents of both of these catalogs could not reasonably be categorized as articles. In Exhibit, UNO RX-7, there are 36 pages which might be brought within the definition of articles, but there are 139 pages which are not articles. In UNO's RX-6 there are 38 pages of articles and 114 pages of matter other than articles.
In 39 U. S. Code Section 4354, it is required that before a mailable periodical publication is entitled to be entered and mailed as second-class mail, it must be regularly issued at stated intervals, as frequently as four times a year. The University of New Orleans publishes only four times a year, and from what has been said with respect to the General Catalog and the Graduate Catalog, it is obvious that they ought not to be accepted for mailing at second-class mailing rates. Therefore, the University does not meet the requirement of issuing a periodical publication as frequently as four times a year. It, therefore, became unnecessary to examine the remainder of the publications of the University of New Orleans.
It may have been noticed that in many cases there was no statement concerning certain of the Bulletins or Catalogs of the University of New Orleans with respect to the number of articles a supposed to material that was not articles. The reason for that omission is simply this: examination of this publication discloses that these are updates of material that previously had been published. Even the material in these publications that are articles undoubtedly at one time or another were original articles. But when they are repeated from issue to issue with only minor changes they lose their character of originality. Thus, even in those instances in which the bulk of the publication is composed of articles, it fails to meet the equally important requirement that the material be original articles.
With respect to LSU, it may be that there are occasional references in one Bulletin to material that is contained in another Bulletin. I say that it may be true, out of an abundance of caution, because in my examination I did not find any such cross- references, although it seems reasonable to believe that such cross-references do exist. It is fair to state, therefore, that each of these publications is devoted to the subject that is indicated on its cover. For example, the Law School Bulletin is devoted almost, if not quite, exclusively to the Law School. The same day be said of the Library of Science Bulletin, so that there really is no continuity between these publications by virtue of the nature of the articles in them. That is to say, there is no continuity between the different numbers in the same series, but there most certainly would be continuity between the Law School Bulletins for different years if repetition were regarded as continuity, which it is not.
These things being so, it follows that each of these publications, primarily, has its own separate audience. This statement is applicable to the publications of both Universities because there is testimony from witnesses appearing on behalf of both institutions that there are very few individuals who ask for the entire series of Bulletins published in a particular year. The person who expresses an interest in a particular discipline gets the Bulletin that addresses itself to the particular discipline. It is only the rare individual who asks for the entire issuance for a complete year. Of course, if such a request is received, that request is filled.
In summary, because the publications of both schools do not contain a variety of original articles, because there is no continuity between the various numbers in the same series, because these publications are complete in themselves and are addressed to specific audiences, it is concluded that the publications of both institutions fail to meet the requirements set forth in the definition announced by the Supreme Court in the case of Houghton v. Payne . That being so, it follows that the decision of the Director of the Office of Mail Classification to revoke the second-class mailing privileges previously in effect for both of these institutions was correct, and it is sustained.
Counsel for both parties have submitted proposed findings of fact and conclusions of law. To the extent indicated herein, those proposed findings of fact and conclusions of law are adopted. Otherwise, those proposed findings of fact and conclusions of law are rejected because they are are contrary to, or unsupported by, the evidence, or because they are contrary to law, or because they are immaterial.
____________________