P.O.D. Docket No. 1/44
December 04, 1958
In the Matter of )
)
CANDAR PUBLISHING CO., INC., )
New York, New York, ) P.O.D. Docket No. 1/44
)
and its application for entry of )
the publications "FRENCH CARTOONS )
AND CUTIES" and "COLLEGE LAUGHS" )
as second-class matter. )
Ablard, Charles D.
POST OFFICE DEPARTMENT WASHINGTON, D. C.
DEPARTMENTAL DECISION
A petition for review of a proposed denial of second-class entry for the publications "French Cartoons and Cuties" and "College Laughs" was filed on August 13, 1958. Second class entry is a form of subsidy. The Director of the Division of Mail Classification of the Post Office Department had proposed to deny the entry on the grounds that the publications were not periodicals as required by 39 U.S.C. 224 1/ and that the publication "French Cartoons" was obscene and thus nonmailable under 18 U.S.C. 1461. There was no issue as to the other statutory requirements. Prior to the hearing, the obscenity question was withdrawn. A hearing was held before a duly designated Hearing Officer on September 10, 1958. A Report and Recommendation was rendered holding that the publications were not periodicals and recommending affirmance of the proposed denial. The petitioner filed written exceptions to the report and the Director replied to those exceptions.
After the hearing but before the report, the petitioner requested that the hearing be reopened to allow the introduction of additional evidence. A reply was made by the Director and the motion was denied. This matter is discussed in the petitioner's exceptions. During the course of the hearing the petitioner offered into evidence certain publications which had a second-class entry contending that they were similar to the publications in question. The Director objected to the introduction of this evidence and the presiding officer sustained the objections. During the presentation of oral proposed findings, the Director cited a departmental proceeding in the matter of Humor Digest, Inc., H.E. Docket No. 5/152 and compared the publication in that proceeding to the publication in this proceeding.
The petitioner relies on the doctrine of contemporaneous construction in construing this statute, and contends that the publications should have been admitted to show the construction the Department has placed on the statute. In Houghton v. Payne, 194 U.S. 88, 99, the Supreme Court said in construing this same statute,
"it is only where the language of the statute is ambiguous and susceptible of two reasonable interpretations that weight is given to the doctrine of contemporaneous construction. 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."
The Court concluded by saying:
"While it might well happen that by reason of the relative unimportance of the question when originally raised a too liberal construction might have been given to the word periodical, we cannot think that if this question had been raised for the first time after second-class mail matter had obtained its present proportions, a like construction would have been given. Some consideration in connection with the revocation of these certificates may properly be accorded to the great expense occasioned by this interpretation, and the discrimination in favor of certain publishers and against others, to which allusion has already been made. We regard publications of the Riverside Literature Series as too clearly within the denomination of books to justify us in approving a classification of them as periodicals, notwithstanding the length of time such classification obtained and we are therefore of opinion that the judgment of the Court of Appeals was correct." In Esquire v. Walker, 151 F.2d 49, 51, (C.A.D.C. 1945), the court said,
"But mail service is not a special privilege. It is a highway over which all business must travel. The rates charged on this highway must not discriminate between business of the same kind."
It is axiomatic that the Post Office Department cannot apply a statute in one manner as to one publisher and another as to a second. However, I take official notice of the fact that there are 30,000 publications with second-class entry and as a result some inconsistency in the application of this and other statutes is a possibility. As the court pointed out in Houghton v. Payne, the Department is not bound by contemporaneous construction but is free to evaluate each publication on its own merits to determine whether or not it is a periodical. Were this not so, chaos would result when an erroneous interpretation is initially placed upon a statute since such would have the effect of binding all successor administrators with no opportunity to correct the error either as to past or future actions.
The likelihood of the possibility of unfair discrimination may be eliminated by the Director's reevaluation of similar publications which now have second class entry to determine which of those publications are not periodicals.
Although contemporaneous construction is not conclusive, I believe that the petitioner should have been permitted to introduce evidence of the contemporaneous construction of the statute. While the weight to be placed on such evidence is for the presiding officer to determine, it is relevant evidence and it was error to exclude certain of the publications offered by the petitioner. The error was compounded when the Director used a publication involved in a prior proceeding as an argument for denial of entry to these publications. This was, in effect, an admission that there was some validity to the contemporaneous construction theory. The fact that the Director cited a formal administrative hearing which resulted in a favorable agency decision while the publications offered by the petitioner were not subject to similar proceedings is immaterial. Those publications could receive the second class permit only with the permission of the Director. This constituted an official interpretation of the statute although a later agency decision made after a formal proceeding might be accorded more weight.
An analogy for the admission of this evidence is found in the introduction of proven sales of comparable real property as a means of establishing the value of the real property under consideration. This is the rule adopted by the majority of the jurisdictions in the United States. 2/
The minority of jurisdictions will not permit such evidence but concede its relevancy. They justify its exclusion of the ground that its admittance will cause the primary object of the proceeding to become immersed in collateral issues. The majority rule requires a two-fold determination; firstly, an inspection of the evidence to see that it is relevant and, secondly, a determination that its auxiliary probative value will outweigh any serious confusion of the evidence. Relevancy is determined by observing the degree of similarity between the several pieces of property, and by the proximity of the date of the prior sale and that of the present attempt at evaluation. When these two tests of relevancy and auxiliary probative value are met, comparable sales are competent evidence.
Using this as an analogy I believe that petitioner's exhibits E-1, 2 and 3 and I and J are joke books of a substantially similar type and should have been admitted into evidence. No serious confusion of issues would have resulted from their admission. The other exhibits offered by the petitioner do not meet the test of substantial similarity and should have been rejected. The Director was certainly not required to produce all publications having second class entry as petitioner requested.
The rigid adherence to restrictive rules of evidence by the Post Office Department has resulted in several adverse judicial decisions. 3/ When material is relevant it should be accepted into evidence 4/ even though its probative value may be slight as in this instance. The weight to be placed on such evidence is a question for the trier of the facts. In so ruling I am not unmindful of the Recommendation of the President's Conference on Administrative Procedure on Exclusion of Evidence, 15 F.R.D. 217, wherein excessive liberality was criticized.
The exceptions of the petitioner herein considered are allowed and those exhibits enumerated above are henceforth considered as having been admitted into evidence in this proceeding.
The petitioner also excepts to the presiding officer allegedly having permitted his personal dislike of the publication to stand in the way of proper legal analysis. The petitioner bases this on a statement in the report saying,
"many of the cartoons or jokes in each of these magazines may be characterized as being of a smutty type."
However, later in the report, he states,
"it may be stated here that whether or not these magazines constitute good literature or are worthwhile is not involved."
I believe this latter statement clearly shows that he did not permit any possible personal prejudices as to literature to affect his decision. The exception is disallowed.
The petitioner also excepts to the presiding officer's rejection of testimony of the petitioner's desposits at fourth-class rates which was offered to show economic hardship. I do not believe that this testimony was relevant. It is a matter of public information prescribed by statute that fourth class rates are higher than second class rates. Proof of such facts was unnecessary and it was properly excluded. Also there was no error in refusing to order counsel for the Director to testify as to the interpretation the Department placed on periodical publications.
The petitioner excepts to the finding by the Hearing Officer that the publication was not a periodical. The latest Supreme Court opinion which discussed the problem was Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1945), wherein the Court held that the Postmaster General could not exclude from second-class entry publications which he deemed not to be for the public good or welfare. The Court went on to say,
"This is not to say that there is nothing left to the Postmaster General under the Fourth condition. It is his duty to 'execute all laws relative to the Postal Service.' Rev. Stat. § 396, 5 U.S.C. § 369. For example, questions will arise as they did in Houghton v. Payne, 194 U.S. 88; Bates & Guild Co. v. Payne, 194 U.S. 106, and Smith v. Hitchcock, 226 U.S. 53, whether the publication which seeks the favorable second-class rate is a periodical as defined in the Fourth condition or a book or other type of publication."
In Houghton v. Payne, a publisher sent to his readers in magazine form the best of literature. Although in form the magazine met the requirements of second class, the content was within itself a complete book. Books are in the category of third-class mail and the Postmaster General decided that he was not entitled to the lower rate. The Supreme Court affirmed that decision saying,
"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. Ordinary 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 Bates & Guild Co. v. Payne, the publisher supplied readers with choice selections of music in a magazine and various composers were featured in each issue. The Postmaster General ruled, and again his determination was upheld by the Supreme Court, that the publications were not entitled to the subsidy but should be classed as books and charged a higher rate. In the last case, Smith v. Hitchcock, a similar question was raised and 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."
In 1906 a Postal Commission studied the rate problem and Mr. Benjamin Herbert, National Editorial Association, gave the following statement: 5/
"I5 is easy to define that which is a newspaper. A newspaper is that which is rendering service in giving news, in giving facts, in giving varied conditions. A periodical should have something more than stories. It should be something that does not deal in stories alone, but in literature, in facts."
Applying these standards and definitions I conclude that the publications in question are not periodicals. They are joke books complete in themselves with no need for continuation. There is no recurring theme as contended by the petitioner. The description of the publications by the Hearing Officer in his report is accurate and is adopted.
All exceptions not expressly allowed herein are disallowed. The recommendation of the Hearing Officer is adopted.
1/ 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.
2/ 36 Cornell Law Quarterly, 137 (1950).
3/ Reilly v. Pinkus, 338 U.S. 269 (1949), wherein the Supreme Court held that the Department erred in not permitting use of medical texts in cross-examination of doctors. Atlanta Corporation v. Oleson, 124 F. Supp. 482 (1954), wherein the court held that the Department erred in excluding evidence of medical opinions given to the respondent prior to sale of an allegedly fraudulent item which were offered for the purpose of showing lack of fraudulent intent. It had been established in Pinkus that proof of an intent to defraud was a necessary element. The Department now adheres strictly to both of these rules.
5/ H. Doc. 608, 59th Cong., 2d Sess., p. 135.
CA