P.O.D. Docket No. 1/142
February 05, 1960
In the Matter of the Petition by
T.V. REPORTER, INC.,
1472 Broadway,
New York 36, New York
for a hearing upon its application for second-class entry for
FUN CROSS-WORDS MAGAZINE, JIFFY CROSSWORDS MAGAZINE, SNAPPY
CROSSWORDS MAGAZINE, and VERI-BEST CROSSWORDS MAGAZINE.
P.O.D. Docket No. 1/142
February 5, 1960
William A. Duvall Hearing Examiner
POST OFFICE DEPARTMENT, WASHINGTON 25, D.C.
INITIAL DECISION OF HEARING EXAMINER
This case arose out of applications for original entry into the mails as second-class matter of the publications Snappy Crosswords Magazine, Fun Crosswords Magazine, Jiffy Crosswords Magazine and Veri-Best Crosswords Magazine, filed on behalf of T. V. Reporter, Inc., 1472 Broadway, New York 36, New York, the Petitioner. The applications relative to Snappy Crosswords Magazine and Veri-Best Crosswords Magazine were filed on July 16, 1958, while the applications relating to the other two publications were filed on June 5, 1958. In each case entry was sought at the Derby, Connecticut, Post Office.
By notices dated April 9, 1959, the Director, Division of Postal Services, Bureau of Operations, Post Office Department, the Respondent, advised the Petitioner that, subject to the right to file petitions for review, each of the applications was being denied.
In accordance with the applicable Rules of Practice the Petitioner appealed from the ruling of the Director by petition, to which the Respondent filed answer. The case came on for hearing before me on October 7, 1959, at which hearing the parties were represented by counsel who participated in the examination and cross-examination of witnesses and in the introduction of evidence. Counsel have also filed proposed findings of fact, conclusions of law and supporting briefs. At the hearing it was agreed that there are three issues to be resolved 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;
2. Are the publications originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry; and
3. Do the publications consist primarily of "novelty pages" as that term is defined in Section 132.483 of the Postal Manual?
The publications under consideration are very similar in size and format. Each of them is approximately 5 x 7 inches in size and contains 100 pages of which 5 are unnumbered. Each contains more than 80 pages of puzzle material, about 6 pages of answers to the puzzles, less than 10 pages of miscellaneous narrative matter unrelated to the puzzles, 2 pages of advertising, 1 page of miscellaneous matter and 1 cover page. By far the great bulk of the contents of each publication is composed of ordinary crossword puzzles, but there are some puzzles which require that the solver perform a certain amount of decoding, there are some puzzles which require the solver to match words appearing in opposing columns and there are some which for their solution require that certain missing words or letters be supplied.
The first witness on behalf of the Petitioner was Mr. Burton N. Levey who is the President and Business Manager of the Petitioner. Mr. Levey said that during the early part of 1958 his corporation decided to undertake the publishing of the publications which are the subject of this proceeding. He stated that a formula or plan was adopted with respect to the content that was to be published in these four titles. The policy was established, according to Mr. Levey, of publishing material that would appeal to the masses of people, defined by Mr. Levey as being the people who have junior high school or perhaps high school educational level, the man who drives a bus or is an elevator operator, or who works in a grocery store, or the like.
Mr. Levey testified that he made a computation as to the portion of the book which is consumed with space that has to be filled in by the solver of the puzzles and he arrived at the figure of 13.3% as being the average amount of such space in each of the publications. From Mr. Levey's testimony it is apparent that he considered only the diagrams relating to the puzzles, and only the white spaces within the diagrams. In other words, in a crossword puzzle diagram those squares which are blocked out in black were not included by Mr. Levey in the making of his computation, and the list of terms for which synonyms were to be supplied by the solver were not included in the computation. Mr. Levey stated that his purpose in publishing these crossword puzzle publications is to instruct and to educate.
Miss Jane Bacon, who is the Editor of all four of the subject publications, was the next witness. Miss Bacon corroborated the testimony of Mr. Levey with respect to the readership at which the publications are aimed. She stated that she had developed a certain pattern for these publications and that this pattern has been followed throughout all of the issues of the publications. The puzzles contained in the publications are graduated in difficulty, with the easier puzzles appearing in the front of the publication followed by the more difficult ones. She stated that this format encourages the solver by giving him a feeling of accomplishment in the earlier puzzles and by giving him sufficient confidence to undertake the solution of the succeeding puzzles. The Merriam-Webster Dictionary is used as a standard or guide by Miss Bacon in editing the puzzle material submitted to her, but she stated that she does use some words that are more current than those which appear in this dictionary.
Material is supplied to Miss Bacon by a variety of free lance puzzle constructors located throughout the country. In the instructions to such puzzle builders it is stated that the words should be as easy and simple as possible, without being trite. The constructors are told that their puzzles should be designed with words that would be in the vocabulary of a 15 year old person. A limitation is placed on the number of abbreviations that may appear in a puzzle and on the number of difficult words that may appear in the puzzles of various sizes. The constructors are told to avoid the use of "unpleasant or shady words." Miss Bacon said that the reason for this last instruction is the fact that many of the people who read the publications are shut-ins and invalids and she does not want these readers to be offended or displeased.
Miss Bacon had made an analysis of the various publications to show into what categories the various narrative articles appearing in each of the titles may be placed. With respect to Fun Crosswords Magazine, Miss Bacon placed numerous articles in nearly all of the issues of this publication under the categories of "animals," "history," and "science." A similar analysis for Jiffy Crosswords Magazine indicates that the themes of "people," "natural history" and "science" recur. With respect to Snappy Crosswords Magazine the topics around which the articles are written are identified as "human interest," "science," "natural science," and "history," while a similar break-down prepared by Miss Bacon of the material in Veri-Best Crosswords Magazine shows headings of "animals," "history," "science" and "human interest." It is the Petitioner's position that this presentation demonstrates the existence of literary continuity in the various publications.
Concerning these articles that appear in the publications, Miss Bacon stated that it was her thought that they are a sort of subtle way of bringing out interesting little items in lecture form; that they are more of a feature type educational article and that they are very light reading. It was Miss Bacon's view that these articles do not constitute the principal attraction to people who purchase the publications, the principal reason why people purchase the magazine being to solve the puzzles.
The next witness in behalf of the Petitioner was Mr. Roger Garrison, who has been a teacher in Briarcliff College for 13 years. He teaches a course in Shakespeare, a course in contemporary American and English literature, and two freshman courses and one advanced course in writing. Mr. Garrison was connected with the information and education program during World War II. He was associated as a writer for the Army newspaper "Yank." He was a script writer and researcher for "Fact" and he was associated in the production of a series of films called "Why We Fight," relating to the history of World War II. Following that employment, Mr. Garrison became a reporter for Life magazine for a period of two years and he has done free lance writing for the College Association. He has written a textbook on writing called "Guide To Creative Writing," published in 1950 by Henry Holt, and he has also written a book relating to the nature of the learning process called "The Adventure of Learning in College."
Mr. Garrison stated that crossword puzzles are used not only for entertainment, but have been used and are used in instruction in schools. Generally speaking, Mr. Garrison extolled the virtues of crossword puzzles as a means of increasing one's awareness and, hence, one's learning, and he also praised crossword puzzles in general, and the publications involved in this proceeding in particular, as a means of increasing one's vocabulary. He testified that as a result of his research he had learned that in Mark Sullivan's "History of American Culture in This Century" there is mention of the fact that in 1925 crossword puzzles were the most popular form of entertainment in the United States. Despite the lavish praise heaped by Mr. Garrison upon crossword puzzles as a medium for increasing one's awareness of language and increasing one's learning, Mr. Garrison testified that he does not use crossword puzzles in the practice of his profession. He stated that the reason for this was that he had not found in problems posed by his particular subject matter any need for crossword puzzles. He went on to say, however, that he employs any device that would be useful, including comic books. Mr. Garrison testified that insofar as he knows there is only one book in one course in Briarcliff College in which use is made of a crossword puzzle. This is an elementary French course and in this textbook there is only one such puzzle.
Mr. Jack K. Lippert testified in a similar proceeding (P.O.D. Docket No. 1/148) on the same day on which this matter was heard, and by stipulation among counsel Mr. Lippert's testimony is to be treated as having been given in this proceeding. Mr. Lippert is the Executive Editor, the Vice-President and a member of the Board of Directors of Scholastic Magazines, Inc. The business of this corporation is the publishing of periodicals and soft-covered books for use in elementary and high schools in the United States and Canada. This concern publishes a total of 12 magazines which are used in all grades at the elementary school and high school levels. Not all publications are for use in all grades, but there is a publication which is intended for use in one or more of the grades at various levels. Some of the publications are for use by students and others of them are addressed to teachers. Some of the publications are weekly in frequency and others are published monthly. Approximately 20% of the gross sale of Mr. Lippert's publications is to school boards for individual schools, with the remaining 80% being paid for by the students. With one exception, all of the publications issued by Scholastic Magazines, Inc. carry one crossword puzzle in each issue. Some of the crossword puzzles are submitted by students and others are supplied by professional crossword puzzle constructors.
Concerning the remainder of the contents of his various publications, Mr. Lippert stated that the Board of Advisors of the corporation, comprised of school teachers, curriculum specialists and school administrators from various localities, meets in New York once each year. Prior to the meeting the publisher sends out questionnaires concerning the editorial contents of the publication to each of the approximately 82,000 teachers who subscribe to the various publications but who are not members of the Board. Upon the basis of the questionnaires and the discussions held at the Board meetings the publishers arrive at the type of material that is to be contained in each of the publications. From Mr. Lippert's testimony it appears that for each publication there is a general theme around which all of the puzzles for a given year will be constructed. For example, in one publication for the 1959-60 school year the puzzles concern the topic of United States geography. He stated that they did not put more than one crossword puzzle in each issue of each magazine for the reason that the publisher must maintain a balance of the various types of material and devices by which the student can acquire learning - that it would not serve the purposes of the classroom teacher if every other page in the magazine contained a crossword puzzle. In addition, Mr. Lippert stated, that the use of crossword puzzles would not permit the publisher to present a topic in such depth and with adequate interpretation as does the presentation of the same topic in the form of a narrative or an article about that subject.
Mr. Lippert stated that the basic purpose of the inclusion of a crossword puzzle in each issue of each magazine is to provide an exercise or drill in vocabulary development on the part of the readers. The witness referred to one instance in which a crossword puzzle inadvertently was omitted from one issue of one publication. He said that as a result of this inadvertence the publisher was subjected to a bombardment of letters of protest. In response to a question as to the reasons for the strenuous protests, Mr. Lippert stated that he knows that many teachers consider that the word games and puzzles facilitate the learning process and encourage interest on the part of the students.
The provisions of law applicable to this proceeding are stated in 10 and 14 of the Act of March 3, 1879 (20 Stat. 359), as amended, and they are codified as Sections 224 and 226 of Title 39, United States Code. The Departmental regulations which have been invoked are contained in Sections 132.211, 132.224 and 132.483 of the Postal Manual. These provisions of law and regulation are quoted or paraphrased in Appendix A to this decision.
The earliest case in which a distinction is made between a "periodical publication" and a "book" is Houghton v. Payne , 194 U. S. 88. In this case the Court said (id., pp. 97-98):
"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.
"A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding, (although this is by no means essential,) but in the fact that it ordinarily contains a story, essay or poem, or a collection of such, by the same author, although even this is by no means universal, as books frequently contain articles by different authors. Books are not often issued periodically, and, if so, their periodicity is not an element of their character. * * * 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 a later case, Smith v. Hitchcock , 226 U. S. 53, the Court said:
"It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class set forth in 14. (citing Houghton v. Payne , supra ). It is established by the same authorities, that books, that are expressly embraced in mail matter of the third class by 17 and so made liable to a higher rate of postage, cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time.
* * * * * * * *
"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. *** 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."
The basis for the Petitioner's assertion that the publications involved in this case are "periodical publications" is his position that the little features mentioned by Miss Bacon give the publications literary continuity in the manner indicated in Petitioner's Exhibits D through G. As previously pointed out, in these exhibits these features are categorized under such headings as "history," "science" and "animals." While these articles may be so classified, and while they may be subject to other identifications, they are so diverse in content that the only manner in which they can be grouped together is under such broad headings. For random examples, in Veri-Best, some of the items in the various issues listed under "science" are Electronics May See Future, Some Detective Work, and When Kites Were More Than Toys; in Snappy some of the articles in the various issues listed under "human interest" are Have They Found Noah's Ark, Baldness Is as Baldness Does, Volcano, When Spelling Bees Buzzed, and The Teen-Age Dollar Dwindles; in Jiffy, under "natural history," Sea Monster Comes to Life, Many Wonders From a Lump of Coal and How Smart Are Apes, are three articles that appear in consecutive issues; while in Fun, articles entitled Outdoor Life, Remarkable Snout, Scientific Challenge (Skunk), and Porpoises Play Basketball appear in consecutive issues and are listed under the category "animals." It is apparent that while these articles in the various issues of the separate publications may be placed in a column under some broad generalization, this fact does not mean that literary continuity is present in the particular publication. Certainly, these articles "betray no need for continuation" and no continuation or continuity exists. In view of the fact that the category "science" is shown for all the publications, the Petitioner might as well insist that continuity exists not only vertically in each title he publishes, but also horizontally across all his publications. The fact that some generic terms may be used to describe the articles in these publications is no more controlling than was the fact that the publications in the Houghton case could be classified under "literature" or "fiction," or the fact that publications under consideration in Bates and Guild Co. v. Payne , 194 U. S. 106, could be categorized as relating to "music."
From all of the foregoing considerations, I find that there is no such literary, or other, continuity in Petitioner's publications as would make them "periodical publications." 1/
Examination of the Petitioner's publications reveals no other basis for a conclusion that they are "periodical publications." On the contrary, each issue of each title is entirely complete within itself and the overwhelming bulk of the contents of each issue consists of puzzles and their answers. The inescapable conclusion is that the Petitioner's publications are books and I so find.
The next question to be decided is whether the publications are originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry. In connection with this issue the Petitioner stresses two points. First, it is pointed out that in the case of Hannegan v. Esquire , 327 U. S. 146, there is a very broad definition of the word "literature." In the Esquire case the question that was presented to the Court was whether the contents of the publication met some qualitative standard. There is no such question involved in this case, but if there had been, I should have had no hesitancy in finding that all of the various titles published by the Petitioner which are involved in this case are high type publications. As has already been stated, however, there is no question in this case as to whether the publications are "good" or "bad." There is not the slightest effort on the part of the Post Office Department to keep this material out of the mails. The sole question involved in this case is one of classification, that is to say, at what rate of postage may these publications be carried. Aside from this distinction between the Esquire case and the present proceeding, there are the obvious differences between Esquire magazine and the present publications in their type, content and format. The value of the Esquire case as a precedent is therefore, at best, dubious.
Next the Petitioner emphasizes what he considers to be educational value of his publications, and in this connection Mr. Levey did state that his publications are intended "to instruct and to educate." It is true that there are some references to such subjects as writers, singers, persons in political life, movies and geography in the various puzzles. In order that a crossword puzzle or any other kind of puzzle may be constructed it is absolutely necessary that there be employed terms, the synonyms for which must be persons, places, things, events, or ideas which form a part of the vast body of public information. The fact that such terms are used, however, does not mean that the publications are "originated and published" to disseminate information about these subjects or that they are "devoted" to these fields. There is no cohesion in the manner in which these topics are mentioned in the solutions of the various puzzles appearing throughout the series of publications. Instead, the puzzles consist of disjointed, disconnected and unrelated words which, after a puzzle has been solved, appear horizontally and vertically to the reader without the slightest semblance of logical sequence. Some of the puzzles require that the solver do a considerable amount of decoding before he is able to reach the solution of the puzzles. These types of puzzles impede the spread of public information rather than contribute to its dissemination. It is also highly significant that the publisher of magazines which are used in our schools throughout the country testified that crossword puzzles are an inadequate device to use to convey information because it is impossible for the constructor of the puzzle, or the publisher, to deal with a subject in sufficient depth or to present a subject with sufficiently broad interpretation. The publisher of these school magazines also indicated that the use of a teaching device consisting solely of crossword puzzles would not be desirable because it would be too monotonous.
Insofar as Mr. Garrison is concerned, it would appear that if crossword puzzles were so valuable a teaching aid as his direct testimony would lead us to believe he would have found some means of employing them in his teaching over the past 13 years, particularly in view of the fact that he has found comic books useful. Of course, it is true that comic books usually do present a story or a portion of a story in narrative form and in logical sequence. It may be that this is the reason why Mr. Garrison uses comic books, but has found no area of his teaching in which crossword puzzles would be useful.
One of Mr. Garrison's books is called "Guide to Creating Writing." I assume that it will not be challenged that words are the tools of the writing craftsman. Since crossword puzzles were described in glowing terms as a means of increasing one's vocabulary, it is strange that their use would not be recommended in a book, the title of which leads one to believe is intended to instruct in the field of creative writing. With respect to the other book which he has written, Mr. Garrison stated that it consists of 300 pages of his philosophy in learning and teaching. Despite the fact that Mr. Garrison lauded crossword puzzles as a means of increasing one's awareness, and one's learning, no mention is made of crossword puzzles in his philosophy of learning and teaching. Mr. Garrison's actions speak more forcefully than his words.
From the standpoint of the reader, if certain information in a particular field is desired it would be much more simple, direct, accurate, and informative for the person to go to a recognized source such as a reference book or a newspaper where the information would be presented to him in a coherent and intelligible narrative form. Contrasted with this method is the method which the Petitioner would have us follow: If it is assumed that a particular puzzle is constructed around a central theme in which a person desires some particular information, the person must not only derive the exact synonyms for the definitions given or do the proper amount of decoding, but he even then runs the risk that the particular information in which he is interested is not contained in the solution of the puzzle. He may have had a delightful time in solving the puzzle, but he would not necessarily be one step nearer to the possession of the information that he was seeking.
Upon the basis of all of the foregoing considerations I find that the Petitioner's publications are not originated and published for the dissemination of information of a public character or devoted to literature, the sciences, arts or some special industry.
Concerning the last issue it appears tome to be beyond question that the publications of the Petitioner are composed primarily of "novelty pages." It is true that in Mr. Levey's computation only 13.3% of the publications are consumed by what he considers to be within the definition of that term. No valid basis was shown, however, for the method of computation used by Mr. Levey. It seems utterly illogical to say that a diagram which is a part of a crossword puzzle is any more important than are the lists of terms for which the synonyms are to be supplied. Thus, it seems reasonable to consider the puzzles as a whole in reaching a determination of the amount of space consumed by them in the publications. In any event, I find that the publications which are the subject of this proceeding consist primarily of novelty pages as that term is defined in the Postal Manual.
There is one proposed finding of fact and one proposed conclusion of law submitted by the Petitioner which will be treated separately. The proposed finding of fact is number 82, and it reads as follows: "That publishing a periodical for profit is not prohibited by the Sections of the U. S. Code authorizing the issuance of second-class mail privileges." While I doubt that any action with respect to this proposed finding is necessary because of its self-evidence, I do specifically adopt it. Nothing that I know of in this or any other similar hearing has indicated anything to the contrary, nor has there been any indication on the part of any Departmental employee or official in any such hearing of which I am aware that might in any way be construed as criticizing a publisher for wanting to have a profitable publishing enterprise. It would come with ill grace from a Department which for so long has been trying to reach a break-even point in its own operations to be critical of a businessman who is attempting to obtain a satisfactory economic return from his business. It is believed that Petitioner's counsel may have confused questions relating to the purpose for which Petitioner's publications are issued, i.e., whether they are " originated and published for the dissemination of information of a public character or devoted to literature ***", with some supposed criticism of an incentive of the publisher. Suffice it to say that it is the opinion of the undersigned that no criticism of a profit motive was made or intended.
The proposed conclusion of law which is treated individually is number 11 in which it is stated: "That the Postmaster's (sic) definition of a 'novelty page', as a condition for the admission of petitioner's periodicals to second-class entry is an improper and unwarranted condition and in violation of the standards prescribed by Congress in 39 U.S.C.A., Section 224 and 226, as determined in U. S. v. BURLESON ; 225 U. S. 407." In effect, the Petitioner is stating that executive agencies may not issue regulations which extend, abridge or alter existing statutory provisions. There is ample authority for this proposition. ( Morrill v. Jones , 106 U. S. 466; Bong v. Campbell Art Co. , 214 U. S. 236.)
On the other hand, there is also ample authority to support the validity of regulations issued by the head of an executive department when the purpose of those regulations is to "fill up the details" of a statute. Wayman v. Southard , 23 U. S. 1; Interstate Commerce Commission v. Goodrich Transit Company, 224 U. S. 194; Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381.
Reverting now to the Houghton case, the Court made the following statement (p. 96):
"But while section 14 lays down certain conditions requisite to the admission of a publication as to mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites."
Coupled with this holding by the Court that the provisions of law codified in Section 226 of Title 39, United States Code, do not establish all the characteristics which a second-class publication must have are (1) the general authority of all departmental heads to "***prescribe regulations, not inconsistent with law, for the government of [his] department *** and performance of its business
***" (5 U.S.C. 22), and (2) the specific mandate from the Congress to the Postmaster General "***To superintend generally the business of the department and execute all laws relative to the Postal Service." (5 U.S.C. 369)
Since it is outside the scope of the Hearing Examiner's authority to do so, no ruling is made as to the validity of the regulation stated at Section 132.483 of the Postal Manual. It is a nice question, however, and these comments are intended to place the matter in clearer perspective for such time as it may be taken up on appeal.
A word might be said with respect to the Respondent's argument that it was error to deny the motion made at the hearing to amend the answer to include another affirmative assertion why, in the Director's opinion, the Petitioner's publications are not entitled to second-class entry. In view of the findings heretofore made, this point becomes moot, but some of the arguments made require answers. To begin with, Rule 7(e) of the Rules of Practice was not violated. This Rule provides that "An amendment of a pleading may be offered by any party at any time prior to the close of the hearing." The right to offer an amendment does not carry with it an iron-clad guarantee that the matter offered will be received or permitted. Counsel was permitted to make his offer and to argue in support of his motion. He was accorded his full rights under Rule 7(e).
Of far more importance, however, was the circumstance in which the amendment was offered. The parties with their counsel and witnesses were assembled for the hearing on October 7, 1959. The Respondent moved to amend the answer to include a charge to the effect that the Petitioner's publications are designed primarily for free circulation. This amendment would have given rise to an issue entirely different in character than those which had been presented by the pleadings, and a completely different type of proof would have been required of the Petitioner to meet this charge. To have allowed such an amendment at the time it was offered would have been an abridgment of the Petitioner's constitutional rights of due process. The suggestion is made that the hearing could have been continued to a later date. This case already had been continued a number of times and publishers have a right to have their matters litigated as expeditiously as circumstances will permit. In addition, the information upon which the new charge was to be based had been in the possession of the Respondent since July or August of 1959 - a minimum of two months prior to the hearing. The preparation and submission of a motion offering this amendment as late as a few days prior to the hearing would have worked no hardship on anyone. Even if this decision were favorable to the Petitioner, the Respondent would not be estopped from instituting another proceeding if the basis for the new charge should still exist. Thus, the rights of neither party were impaired.
The fact that the Department has at times in the past granted applications for entry and re-entry of similar publications in the mails as second-class matter does not preclude the Department from denying those privileges now if it is thought that the earlier actions were erroneous or the results of inadvertence. (See Houghton , supra ; Columbian Correspondence College v. Wynne , 25 App. D.C. 149, appeal dismissed 200 U. S. 615; State Airlines v. Civil Aeronautics Board , 174 F.(2d) 510, reversed on other grounds, 338 U. S. 572; and Evans v. Watson , C.A.D.C., July 16, 1959, 28 L.W. 2037, cert. den., 28 L.W. 3165.)
Based upon the entire record in this case, I conclude that as a matter of law the publications 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. The Petitioner's applications 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 mail matter are denied.
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.
/s/
APPENDIX A
STATUTORY PROVISIONS
" 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. 2/
* * * * * * * *
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 sheets: Provided, That publications produced by the stencil, mimeograph, or hectograph process or in imitation of typewriting shall not be regarded as printed within the meaning of this clause. 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."
DEPARTMENTAL REGULATIONS IN THE POSTAL MANUAL
" 132.211 Mailable Publications. You may mail only newspapers and other periodical publications at the second-class rates. The copies may not contain obscene, treasonable, lottery, or other kinds of material that would cause them to be nonmailable under the provisions of part 124.
* * * * * * * *
" 132.224 Contents. Publications must be originated and published for the purpose of disseminating information of a public character, or they must be devoted to literature, the sciences, art, or some special industry."
Section 132.483 generally defines the term "novelty pages" and includes in this definition "***Printed pages having blank spaces for writing or marking ***". It is provided in this Section of the Postal Manual that "***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 third- or fourth-class mail.***"
1/ In paragraph 2 of Petitioner's brief it is stated that the "term 'periodical publications' does not appear in 39 U.S.C.A., Sections 224 and 226 ***". This statement obviously is the result of some inadvertence. See Appendix A.