In the Matter of the Petition by                                )
                                                                               )
GILBERTON WORLD-WIDE PUBLICATIONS, INC.   )
101 Fifth Avenue                                                   ) P.O.D. Docket No. 1/158
New York 3, New York                                         )
                                                                               )
for a hearing upon its application for                     )
second-class entry of "THE WORLD AROUND     )
US."                                                                        )
                                                                               )
POST OFFICE DEPARTMENT                                  )
Washington 25, D. C.                                             )

APPEARANCES:                                                    Morris D. Schwartz, Esq.
                                                                               711 14th Street, N.W.
                                                                               Washington, D.C.
                                                                               for the Petitioner
                                                                               Adam G. Wenchel, Esq.
                                                                               Assistant General Counsel,
                                                                               Post Office Department
                                                                               and
                                                                               Matthias Mahorner, Esq.
                                                                               Post Office Department
                                                                               for the Director of
                                                                               Postal Services

Ablard, Charles D.

DEPARTMENTAL DECISION

The publisher, Gilberton World Wide Publications, Inc. made application for second-class entry for its publication, "The World Around Us." The Director of the Division of Postal Services of the Post Office Department issued a proposed denial based upon four grounds. The publisher petitioned for a review of the proposed denial. The Director filed an answer in which he withdrew two of the grounds stated in his proposed denial. The two remaining issues were:

1. Is the name of the publication shown on the front in a position and in a style and size of type that will make it clearly distinguishable from the name of the publisher and other items on the front?

2. Is the publication a periodical or a book?

A hearing was held before Hearing Examiner William A. Duvall, who ruled for the petitioner on the first question but held that each issue of the publication was a book and not a periodical and thus not entitled to second-class entry. Both parties excepted to the initial decision. Oral argument was presented before the Judicial Officer on January 20, 1960.

Name of Publication

The Postal Manual requires that:

"the name of the publication must be shown on the front in a position and in a style and size of type that will make it clearly distinguishable from the name of the publisher or other items on the front." Section 132.25(a) Postal Manual. ^1/ The Hearing Examiner found that, although the name was not the largest nor the most prominent printed matter on the front cover, it was "clearly distinguishable" from the remainder of the items appearing on the cover. The Director contends that the purpose of the regulation was to make certain that the name of the publication is the most prominent item on the cover and, since the examiner found that it was not, a ruling should have been made that the publication failed to meet the requirements of the regulation. I concur in the view of the examiner that, regardless of the intent of the Director in promulgating the regulation, it does not make this requirement.

The Director relies on the following definition of "distinguishable" in Webster's New International Dictionary, Second Edition:

"Distinguishable - (1) capable of being distinguished; separable; divisible; discernible. (2) distinguishing; distinctive..."

The name of the publication appears on each and every cover in the same position, vertically on the left hand side, and in the same size of type. Each letter is approximately one half inch high. That is certainly a size sufficient to make it "distinguishable" as defined by Webster. In addition, the president of the petitioner corporation testified that the name was placed in that position because since it is a "secondary" publication and is often covered in part on the newsstand by other magazines. (Tr. 15) The left side is then the only part exposed to the prospective purchaser. Under these facts it is certainly distinguishable from other items on the cover. The exception is disallowed.

Periodical Publication

The petitioner has excepted to the findings of the Hearing Examiner that the publication is a book and not a periodical. The statute provides that "mailable matter of the second class shall embrace all newspapers and other periodical publications..." 39 U.S.C. 224. The Supreme Court in Houghton v. Payne, 194 U.S. 88, 97 (1903) said:

"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."

The publication with which we are concerned is printed monthly and is principally in comic strip form. Each issue features a special topic such as dogs, horses, Indians, the FBI, etc. The publisher stated that all of these subjects are in "the world around us" and this is the reason for the title of the publication.

The petitioner contends that the Post Office Department has been very liberal in granting the second-class permit since the decision in Houghton, supra, over a half century ago. He relies upon the doctrine of contemporaneous construction in seeking the permit for his publication. The two decisions upon which he relies which are in point, U.S. v. Alabama Railroad Company, 142 U.S. 615 (1892) and U.S. v. Finnell, 185 U.S. 236 (1902) were distinguished by the Court in Houghton, supra. As to Alabama Railroad Company, the Court said that while it looked with disfavor upon a change whereby parties contracting with the Government on the faith of a former construction might be injured, no contract with the Government is established by the granting of a second-class entry. In Houghton, supra, the proceeding was based on a revocation of an existing second-class entry whereas in the instant proceeding the Director is denying the initial application for entry. If there is no contractual relationship existing under a granted second-class permit, then certainly there is none between the Government and one who is merely asking for the permit.

The Court went on to say, citing Finnell, supra, that the doctrine of contemporaneous construction applied only where the language of the statute is ambiguous and susceptible of two reasonable interpretations and that the second-class statute was not ambiguous. The Court concluded by saying:

"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 fact that the Department has been liberal in granting second-class entry since Houghton, supra, should not preclude a re-evaluation of the effect and applicability of the decision. The other decisions cited by the petitioner hold only that the contemporaneous construction of a statute is entitled to great weight. ^2/ The exception as it is bottomed on contemporaneous construction is disallowed.

By agreement at the hearing, ten issues of the publication published at the time of the application were introduced into evidence. The petitioner offered three later issues and counsel for the Director objected to this receipt into evidence. After the hearing he withdrew his objection when the Hearing Examiner indefinitely recessed the hearing because the Director would not appear to testify after being requested to do so by the Hearing Examiner. Each of these three later issues contain four separate stories on four subjects not connected with the principal topic of the issue. These are printed stories and articles rather than the comic strips which are the balance of the magazine. The petitioner added this matter upon the advice of the Director who had informed him that in the former format each issue of the publication was a book about a specific subject and not a periodical. After being so advised the petitioner made an effort to comply with the regulations and changed the format. There is nothing in the applicable regulations as to the content of a publication except to require that it must be for the purpose of "disseminating information of a public character" or "devoted to literature, the sciences, art or some special industry." Section 132.224, Postal Manual.

In Houghton, the Court had before it the Riverside Literature Series which complied with the external characteristics and conditions of second class mail matter but their internal matter convinced the Court that they had the characteristics of books and not of periodicals. Each number contained a single novel or story or collection of short stories or poems by the same author. The authors were well known writers of the time such as Thackeray, Whittier, Emerson and Irving. The Court found that each number was complete in itself and not connected with any other number.

In Smith v. Payne, 194 U.S. 104 (1904), the Court had before it the Masters in Music Series. This publication was issued monthly and each issue was devoted to one of the world's greatest musicians. Each contained 32 pages of piano music, a portrait of the composer, his life story and comments of music critics about the composer and his works. The Court found that these were separate books and not periodicals. These opinions of the Court rendered during the first decade of this century are the only pertinent judicial decisions on the subject.

The facts of none of these cases are on all fours with the facts of the case before me. The closest comparison is in dicta in Houghton v. Payne, where the Court said:

"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." ^3/

This statement appears to be dispositive of the question as to issues one through ten. It is apparent to me that these are in fact separate books about separate and distinct fields with no literary continuity. There is certainly as little connection between dogs, the Air Force, railroads, the Army and pirates as there is between law, medicine, religion, music, etc.

In Smith v. Hitchcock, 226 U.S. 53, 57 (1912), the Court mentioned other extraneous matter which appeared in the Frank Merriwell adventure series, which was before it. This matter consisted of a "roll of honor" and laudatory and inquiring letters from readers. The Court was not impressed by this additional matter and held that the publication was a book and not a periodical. Although refusing to make any hard and fast definition, Mr. Justice Holmes had this to say about books:

"Without attempting a definition we may say that generally 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." (Emphasis supplied)

The Hearing Examiner found that although the petitioner changed his format upon advice of the Director, the Director did not tell him what percentage of the publication must be devoted to other matter and concluded that the added matter made no difference. I do not agree with his finding on this point.

The last three issues do not deal with a single subject but with several. This fact prevails over the argument of the Director that the additional matter consists of only four out of sixty pages. Although the Court did not call the above statement a "definition" it is the closest thing to it that the Court has ever pronounced.

The fact that the Director did not tell him an exact number of pages which had to be devoted to other matter should not be held against the petitioner, especially since no regulation has been promulgated on this point. The public deserves something better than the right to second-guess. The matters which are treated by the publication of the petitioner are not geared for the technical adult reader but for the younger reader with a broad scope of interest in history, science and current events presented in an understandable fashion. There has been no showing that the young people of this country are not generally interested in the wide range of subjects covered by each issue or by the various issues of the publication. The added matter in the last three issues provides a variety of topics for each issue and takes the publication out of the category of books.

Conclusion

I find that the last three issues of the publication show that it is a periodical publication entitled to the entry. The entry is hereby granted effective with issue No. 11. To that extent the exception is allowed. The entry is denied as to all issues No. 1 through 10. To that extent the exception is disallowed. All findings of the Hearing Examiner not inconsistent with this decision are affirmed; all others inconsistent with this decision are reversed.

Since the submission of this matter to me, the personnel of this Department were grieved on February 4, 1960, by the death of Mr. Matt Mahorner, the principal trial attorney for the Government in this proceeding. He distinguished himself as a member of the Bar of the District of Columbia and as an ardent advocate in this Department. He will be missed by those of us in the Post Office Department and those who practice before it.

1/ There is no express statutory basis for this regulation. In Payne v. Railway Publishing Co., 20 App. D.C. 581 (C.A.D.C., 1902), the Court held that the Postmaster General could not add requirements to the statute by regulation.

2/ United States v. American Trucking Association, 310 U.S. 534 (1940); Fleming v. Mohawk Wrecking and Lumber Co., 331 U.S. 111 (1947); and N.L.R.B. v. Denver Building and Trades Council, 341 U.S. 675 (1951).

3/ The petitioner attempted to prove through the introduction of statements from subscribers that the ordinary reader would subscribe to such a publication as "The World Around Us". Since this evidence was excluded by the Hearing Examiner and his ruling on the merits was favorable to the petitioner on this point, he did not except. Thus, neither the issue of the propriety of the ruling of the examiner nor the subject matter itself is before me for consideration.