In the Matter of the Petition by PURDUE UNIVERSITY, West Lafayette, Indiana 47907, Proposed Revocation of Second-Class Mail Privileges for "PURDUE UNIVERSITY BULLETIN" P.S. Docket No. 3/192 December 5, 1975 William A. Duvall Chief Administrative Law Judge Stephen E. Yeager, Esq., Stuart, Branigin, Ricks & Schilling, 801 The Life Building, P.O. Box 1010, Lafayette, Indiana, for Petitioner Gerald E. Cerasale, Esq., Law Department, United States Postal Service, Washington, D. C., for Respondent Before: William A. Duvall , Chief Administrative Law Judge
This proceeding was initiated by the filing, on April 11, 1975, of a Petition appealing a proposal to revoke the second-class mailing privileges that were at that time, and still are, in effect for a publication known as the "Purdue University Bulletin."
Prior to the filing of this Petition, the United States Postal Service, acting through the Manager of the Mail Classification Division, Finance Department, the Respondent in this proceeding, had advised Purdue University, the Petitioner, that it proposed to revoke the aforesaid mailing permit for the reason, in substance, that the publication is not a "periodical publication" within the meaning of the applicable postal laws and regulations. In that decision, the Respondent paraphrased the definition of a "periodical publication" as that definition is given in Houghton v. Payne , 194 U.S. 88.
In the Petition, the position is taken that the proposed ruling is in error; that the Purdue University Bulletin does meet all the requirements of postal laws and regulations for carriage in the mail as second-class matter; and that the Postal Service is estopped (1) from revoking second-class mail permits which have been in effect over a long period of time, and (2) with particular reference to Purdue University Bulletin, the Postal Service is estopped because that second-class mail permit has been in effect in excess of 71 years.
Purdue University is a land grant institution founded in 1869. Purdue University has campuses in West Lafayette, Indiana; Westville, Indiana; Fort Wayne, Indiana; and Hammond, Indiana, with a total enrollment of approximately 40,000 students.
Purdue University is a state institution, supported by the State of Indiana through legislative appropriations.
The "Purdue University Bulletin" is published from the office of the Purdue University Editor, Building D, South Campus, West Lafayette, Indiana, located at the place where the publication has been granted its second-class mailing permit.
The "Purdue University Bulletin" is formed of printed sheets. The "Purdue University Bulletin" does not contain the advertising of others.
The "Purdue University Bulletin" contains within the first five pages of all issues, a statement of frequency, issue number, name of known office of publication and second-class indicium.
The "Purdue University Bulletin" is originated and published for the dissemination of public information concerning Purdue University.
Approximately 356,459 copies of the "Purdue University Bulletin," the 1974 issues, were published by Purdue University.
Issues of the "Purdue University Bulletin" are distributed by the mails to prospective students, other educational institutions, industry, public libraries, government agencies, high schools and other interested institutions.
Approximately one-half of the copies of the "Purdue University Bulletin" are distributed by mail on a yearly average, heretofore by second-class mail and continuing now in second-class mail.
The "Purdue University Bulletin" is published at stated intervals.
Individual issues of the "Purdue University Bulletin" contain articles concerning the history of Purdue University, the objectives of Purdue University, services provided by Purdue University to prospective students, students, the public in general, industry and government, financial aid provided by Purdue University for students, student rights and responsibilities, course study and description of said courses available at Purdue University, degrees provided by Purdue University with requirements of each and the financial condition of Purdue University.
All issues of the "Purdue University Bulletin" are devoted to a facet of Purdue University.
It might be just as well to discuss now the proposition that has been stated by the Petitioner, that the Postal Service is without authority to revoke the second-class mail privileges of Purdue University, after those privileges have been in effect for such an extended period of time.
In support of this position, Petitioner makes 2 points: One is the doctrine of contemporaneous construction and the other is the rule of estoppel.
The argument about contemporaneous construction was dealt with by the Court in the case of Houghton v. Payne , when, on page 99, the Court said:
"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 construction. A custom of the department, however long continued by successive officers, must yield to the positive language of the statute."
Later, in the dissenting opinion in that same case, there is the following statement 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."
Turning now to the argument with respect to the estoppel, in the case of Bornstein v. United States reported at 345 F.2d 558 at page 563, it was said:
"Detrimental reliance is an essential ingredient of estoppel."
Later, it is stated that even if there had been detrimental reliance in that situation, "***the doctrine of equitable estoppel does not prevent the agency (which, in that case, was the Internal Revenue Commission), from changing its position to correct an error of law." Thus, neither of the bases on which the Petitioner rests its position with respect to the lack of authority of the Postal Service to proceed in this case is applicable.
In his thoughtful and carefully prepared proposed findings of fact, conclusions of law and argument, Petitioner's Counsel asserts that the Purdue University Bulletin must be held to be a periodical publication because of language used by Mr. Justice Holmes in the case of Smith v. Hitchcock , 226 U.S. 53 at page 59.
The Court had been discussing some of the differences between the words "periodical" and "book", without defining either, and Justice Holmes said, somewhat cryptically:
"***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. There may be exceptions, as there are other instances of books. It hardly would be an exception if, where the object is information and the subject-matter is a changing one, a publication periodically issued giving information for the time should be held to fall into the second class.***"
It is difficult to perceive much comfort to be derived by Petitioner from the foregoing language. Nowhere does the Court say anything that in any way derogates, detracts from or is at variance with the Houghton definition. For example, there is nothing in the remarks of Mr. Justice Holmes that excuses the "information" concerning a "subject-matter [which] is a changing one" and which is "periodically issued" from the requirement of being presented by means of "a variety of original articles by different authors."
From other portions of the decision in Smith v. Hitchcock , the respect with which Mr. Justice Holmes regarded the Houghton decision shines through his statements, such as the one on page 58 where he said:
"Thus a question of law is raised, although as suggested in Bates & Guild Co. v. Payne , 194 U.S. 106, 108, we should not interfere with the decision of the Postmaster General unless clearly of opinion that it was wrong. Ibid . 110. American School of Magnetic Healing v. McAnnulty , 187 U.S. 94, 106. Public Clearing House v. Coyne , 194 U.S. 497, 509. We have no such clear opinion, as the decision is pretty nearly if not wholly sustained by Houghton v. Payne , 194 U.S. 88, and Smith v. Payne , 194 U.S. 104. Indeed the latter case dealt with The Medal Library, which was a periodical publication of several issues of the Tip Top Weekly bound together; as the principal plaintiff now puts it, in book form, and it is true, reprinted in a different size and shape. Some attempt was made to reargue the law of the decisions just cited, but we do not feel called upon to reopen the discussion in that part of the appellants' brief ." (Emphasis supplied) Clearly, Mr. Justice Holmes recognized in Smith the vitality of the Houghton decision and he did or said nothing which suggests that he entertained any other point of view.
Petitioner asserts, additionally, that the language of 39 U. S. Code 4355 requires that second-class mail privileges be continued for the Purdue University Bulletin. The particular language cited by Petitioner provides that certain publications be entered as second-class mail matter if they are "published by a regularly established State institution of learning supported in whole or in part by public taxation;***" The first three words of this provision of law requiring such second class mail entry, however, are "Mailable periodical publications." Thus, in order to be eligible for the benefits of 39 U. S. Code 4355, a publication of a State institution of learning must, first, be a "periodical publication", the definition of which is found in Houghton v. Payne , which for so long has provided the guidelines followed by the Postal Service and its predecessor.
Petitioner adverts, also, to the fact that certain legislation before the Congress has passed the House of Representatives with an amendment which would declare that certain publications, including college and university bulletins, are to be carried in the mails at second-class postage rates. This statement is entirely accurate, but, each year, much legislation is introduced which is not enacted into law. Unless and until the legislation to which Petitioner refers actually becomes law, the Postmaster General is under the obligation to administer the laws relating to the Postal Service. To date, the laws have not been amended, the regulations have not been changed and Houghton v. Payne has not been overturned or modified. Until the occurrence of these events, cases presented must be tried upon the basis of existing facts and circumstances. It is worth suggesting that the Congress may be persuaded that the present Postal Service approach to these cases is legally correct. Otherwise, remedial legislation would not be necessary.
It is now time to consider the particular matter at hand.
This case came on for hearing and the Petitioner presented a number of witnesses who testified with respect to the preparation, mailing and content of the publication known as the "Purdue University Bulletin." One of the witnesses for the Petitioner gave as his understanding of the current definition of "periodical publication" the following: "A magazine or publication issued at stated intervals." This definition clearly is at odds with the definition which the Court gave in the Houghton case.
The Houghton definition of "periodical" is 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 subject."
It was stated earlier, or if it was not stated it was strongly suggested, that the Houghton v. Payne definition of a periodical, because of its age, no longer has validity.
Age does not necessarily carry with it the lack of validity.
If that is so, what would have happened to the Constitution of the United States, which was adopted September 17, 1787. That document has taken quite a beating through the years, but it still persists and exists; so, age does not necessarily mean that a writing has lost all of its force and value.
I have examined Petitioner's publication and I have reached some conclusions of my own, which do not always coincide with the conclusions stated by the Petitioner's witnesses.
Respondent's first Exhibit is the Purdue University Bulletin for the Calumet Campus. The Petitioner's own witness, in describing this Exhibit, said that only 44 out of 206 pages contain articles. Actually, there are 215 numbered pages of the publication. Clearly the predominant characteristic of this publication is not that of a periodical publication because it lacks the characteristic which the Supreme Court said was of prime importance, namely, a variety of original articles by different authors.
Next to be considered were Exhibits R-2 and R-19 which are, respectively, the Graduate School Bulletins for the years 1973-1974 and 1974-1976. With respect to these Exhibits, the Petitioner's witness said, particularly with respect to R-2 that only 30 out of 360 pages are comprised of articles, using her definition of article. There are actually 376 numbered pages in the publication. With respect to R-19, the witness stated that only 65 out of 334 pages are articles, and, in this instance, there are actually 383 numbered pages.
Of the material that could be classified as "articles", these are not necessarily original articles; they are either repetitions or updates of material appearing previously in R-2. Some illustrations of that statement are as follows: In R-2, there is an item under the heading "Classification of Students for Purposes of Tuition" appearing on pages 15 and 17. This same article appears under the heading "Classification of Students for Purposes of Tuition Assessment," on pages 24 and 26 of Exhibit R-19. On pages 24 to 26 of R-2, there is an article entitled "Master's Degree Regulations." This same article with minimal, if any, modifications, appears on pages 18 to 20 of Exhibit R-19. Under the heading "Ph.D. Degree Regulations," there is information on pages 26 and 28 of R-2 and this same, or almost the same, information appears on pages 20 to 23 of Exhibit R-19. These are simply illustrations of the statement about repetition previously made. There could be other similar illustrations.
The presence of articles alone is not sufficient. Articles must be original articles, and simply copying from one year to the next is not an indication of originality.
Respondent's Exhibit No. 3, is a bulletin entitled "Purdue Serves Indiana and the Nation" and this Exhibit is comprised in its entirety of material that could be classified as "articles."
Exhibits R-4 and R-15 are entitled "Financial Aid for Students." R-4 is dated May 2, 1973 and R-15 is dated February 7, 1974. These Exhibits are practically identical, so much so, in fact, that even the photographic material appearing in one, appears in the other and not only that, they appear many times on the same-numbered page in both publications.
Exhibit R-5 is the Purdue University Bulletin with respect to the School of Science. The Petitioner's witness who testified with respect to the content of this publication said that 51 out of 116 (actually 118 pages) are made up of articles. I would disagree with his count, but, assuming for the sake of argument that the count is correct, the articles that are contained in the publication do not have the requisite originality required for a periodical publication within the meaning of postal laws and regulations because of the duplication of these articles that is found elsewhere.
For example, the first heading in this publication is entitled "About Purdue University." This article appears in identical language not only in Exhibit R-5, but also in Exhibits R-7, R-8, R-10, R-11, R-12 and R-16. The same situation exists with respect to much of the material in all these publications under the headings "Admission," "Expenses and Financial Aid," "Living Accommodations," "Libraries," "Audio-Visual Center" and "Computing Center." Such duplication, clearly, is not in conformity with the Houghton definition.
Considered next are Exhibits R-6 and R-20, which are the Purdue University Bulletins with respect to General Information for the years 1974-75 and 1975-76, respectively. Again, these publications are practically identical. There may be some updating in figures, amounts of money or material of that sort, but basically, it is the same publication put out under a different cover, perhaps using a different style or size of type, but the substance is identical. Not all of the same photographic material is used in both publications, but some photographic material appears in each and some of it appears on the same page number of both publications.
Next considered were Exhibits R-7 and R-21 which are the Purdue University Bulletins for the School of Veterinary Science and Medicine for the years, respectively, 1974-75 and 1975-77. As in the case of so many other of these bulletins, they are practically word for word the same, and it must be recalled that not only are these publications like themselves, but there are also many articles repeated in these publications that appear in R-5, R-8, R-10, R-11, R-12 and R-16.
Next is Respondent's Exhibit 8 which is the Purdue University Bulletin for the School of Pharmacy and Pharmacal Sciences. This is another of the instances in which the material that appears in this bulletin, appears also in so many other bulletins, for example, in R-10, R-11, R-12 and so forth, that group of Exhibits. So much of this material is duplicated in these bulletins that it has become unnecessary to count the number of pages of articles in the publication.
The next Exhibit is R-9 which is the Purdue University Bulletin setting forth the 1974 Summer Sessions. The great bulk of this bulletin is made up of course descriptions, and the article content is very definitely the minor part of it. In fact, less than one-third of the pages consist of material that can be called articles.
With respect to Exhibits R-10 and R-11 which are, respectively, the bulletins for the School of Home Economics for 1974-1975, and the bulletin for the School of Technology for the same period, it has been stated previously that these Exhibits are repeated in large measure in the information set forth with respect to Exhibits R-5, R-12 and R-16.
Considered next together are Exhibits R-12 and R-23, which are, respectively, the bulletins for the School of Humanities, Social Science, and Education for the periods 1974-75 and 1975-77. Looking through these Exhibits, page by page, again one sees the identity of the material contained within these bulletins and, again, it is pointed out that not only are these Exhibits like themselves, but they contain very much of the same material that was set forth in Exhibit R-5.
Exhibits R-13 and R-14 are Purdue University Bulletins, respectively, entitled "Financial Highlights 1972-1973" and "Financial Report 1972-1973." In Exhibit R-13, there is certain information presented on pages 1 to 11 which is repeated verbatim in Exhibit R-14 on pages 5 to 17. The pictures of the Board of Trustees appear on pages 2 and 3 of Exhibit R-14 and the same pictures appear on page 12 and the inside of the back cover of Exhibit R-13. The data on page 4 of Exhibit R-14 appear on the outside of the back cover of Exhibit R-13. No more need be said with respect to these publications.
Exhibits R-16 and R-24 are the Purdue University Bulletins with respect to the Schools of Engineering for the years 1974-75 and 1975-77. The same information in practically the same language appears in both of these publications. Not only is this statement true, but many of the articles that appear as narrative matter in these Exhibits also appear in Exhibits 5, 10, 11, 12 and so forth.
Exhibits R-17 and R-22 are the Purdue University Bulletins for the period, or bearing the dates of, March 7, 1974 and December 6, 1974. The language of these bulletins is practically identical, each with the other. There are some different pictures appearing in the publications, but again, there are some of the same pictures appearing in each publication, with some even appearing on the same numbered page of one issue as they appear in the other issue.
The last Exhibit examined was Exhibit R-18 which is the Purdue University Bulletin with respect to the North Central Campus, for the period 1974-76. Examination of this publication leads to the conclusion that it does contain articles in some significant amount and that these articles, so far as I have been able to determine, appear in no other bulletin of this series. Under proper circumstances, not here present, this might be part of a periodical publication.
Also, received in evidence as Petitioner's Exhibit No. 26 was a comparison of yearly mailing costs for Purdue bulletins, under second-class mail privileges and under least-cost alternative methods. As a part of this Exhibit, there are shown the numbers of copies of the various bulletins which were printed and mailed for the particular period covered by this Exhibit. This Exhibit indicates that the numbers of these various bulletins printed ranged from 10,000, in the case of Pharmacy, to 55,000, in the case of the Introduction to Purdue University. The numbers of copies of these publications mailed, based on the assumption, which has been accepted, that half of the publications printed were mailed as second-class mail, ranged from 5,000 to 27,500.
The purpose of stating the foregoing figures is to indicate that it is obvious that these various bulletins do not appeal to the same people, that is to say, not all bulletins appeal to all of the people presently interested in the bulletins from Purdue University. This fact goes to the point stated by the Court in the Houghton case, that if a publication is devoted in its various numbers to different subjects such as law, medicine, pharmacy, agriculture, engineering, home economics, industrial management, that the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. Furthermore, as the Court stated: "It could scarcely be supposed that ordinary readers would subscribe to the publication devoted to such an extensive range of subjects."
The Petitioner asserts that the subject to which all these publications are devoted is Purdue University. That assertion is true, but, in describing the University, they picked out one facet to describe in one particular bulletin, so that in order to get the complete picture, a reader would have to obtain and read all of the bulletins published by the University, and the University's own records have established this simply is not done.
What has been shown by the review of the Exhibits in this case is that the publication "Purdue University Bulletin" falls short of the qualifications under the Houghton v. Payne definition in the following respects: It does not contain a variety of original articles by different authors, and there is no continuity between the various issues of the same series as shown by the fact that the various issues appeal to different audiences and they are read by different individuals. The fact that complete sets of a particular year's production are sent to such addressees as high schools, high school counselors or libraries or government entities, is by no means an indication that those complete sets are read by the same individual.
Proposed findings of fact and conclusions of law have been submitted by Counsel for both parties. Those proposed findings of fact and conclusions of law have been carefully considered and they are adopted to the extent herein indicated. Otherwise, those proposed findings of fact and conclusions of law are rejected for the reasons stated or because they are contrary to or unsupported by the evidence in this proceeding or because they are immaterial.
In view of all of the foregoing considerations, it is concluded, as a matter of law, that the Purdue University Bulletin is not a periodical publication within the meaning of pertinent postal laws and regulations.
It follows therefore that the proposed revocation by the Respondent of the second-class mail privileges with respect to the "Purdue University Bulletin" was correct, and that decision is sustained.
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