In the Matter of the Petition by                                )
                                                                               )
SPECIALIZED PERIODICALS, INC.                          )
Merged with                                                           )
HARLE PUBLICATIONS, INC.                                  ) P.O.D. Docket No. 1/183
215 Fourth Avenue                                                )
New York 3, New York                                         )
                                                                               )
for a hearing on the applications                           )
for second-class re-entry of                                 )
Crossword puzzle magazines.                              )

APPEARANCES:                                                    Joseph L. Nellis, Esq.
                                                                              1411 K Street, Northwest
                                                                              Washington 5, D. C.,
                                                                              Counsel for Petitioner
                                                                              Adam G. Wenchel, Esq. &
                                                                              Jack T. DiLorenzo, Esq.
                                                                              Office of the General Counsel,
                                                                              Post Office Department

Kelly, Raymond J.

POST OFFICE DEPARTMENT Washington 25, D. C.

DEPARTMENTAL DECISION

This matter comes before the Judicial Officer on appeal from the Initial Decision of the Hearing Examiner filed herein on May 9, 1960. Extension of time for filing briefs was granted and the final brief was filed on July 5, 1960.

Originally, on October 16, 1959, a Petition was filed for review of the proposed denial of second-class entry and re-entry and annulments of second-class permits of the SPECIALIZED PERIODICALS, INC. (merged with Harle Publications, Inc.).

On May 25, 1960 the Petitioner filed his appeal from the Initial Decision of the Hearing Examiner and on the same day the Respondent filed exceptions to the Initial Decision of the Hearing Examiner. It is upon the appeal and the exceptions that the final Departmental Decision must be determined.

Involved herein are the rights of second-class entry for seven crossword puzzle publications which had heretofore been given original entry in the year set forth below following the name of each as follows:

1. Speedy Crosswords (1938)

2. Easy Crosswords (1935)

3. Keen Crosswords (1954)

4. Spare-Time Crosswords (1950)

5. Handy Crosswords (1948)

6. Simple Crosswords (1951)

7. Champion Crosswords (1939)

The record shows there have been a number of changes in the name of the publication, the frequency of issue, and the location of office of several of these publications but the present titles are as listed above.

The record also discloses that each of these publications is 5 1/2 x 7 1/2" in size and contains a total of either 68 or 84 pages, depending on the issue, which includes the cover pages.

The contents of each of the publications consist of regular fill-in crossword puzzles, fill-in crossword puzzles, and little articles including "Who-Dunit" stories. The answers to all crossword puzzle material are contained in the back of the same issue and certain of the "Who-Dunit" stories have the answers in the next issue. The puzzle material in the publications range from 79.4 percent to 82.1 percent of the total pages - whereas the little articles including the "Who-Dunits" range from 4.4 percent to 8.1 percent of the total pages.

The user of the publications is required to make marks or write in words or letters on the pages contained in the puzzles. None of the publications is substantially or essentially devoted to current affairs and it is not necessary to go to any other source than the individual number to fill in the blanks of the puzzle and to check the answers. The solutions to the puzzle call for knowledge possessed by the solvers and in certain cases require decoding.

Examination of the publications being considered here shows that none of the crossword puzzles as such have words arranged so as to convey connected intelligible ideas, and the little stories of one or two pages in each of the publications do not have such a nature so as to make the any impact whatsoever upon the character of the publications which would give them literary continuity, a connection between the different numbers, incompleteness within itself, or any other characteristic which would compel a finding that each of these publications is in fact a periodical.

Beginning in the year 1958 the Petitioner herein made applications for re-entry on account of either the changes in title or the changes in frequency of issue or changes of location for certain of the publications. By letters dated April 9, 1959, the Respondent denied each of the several applications for re-entry but withheld final action thereon and permitted the Petitioner to submit the next issue of each publication issued after May 15, 1959 for review. After each such copy had been examined the Respondent wrote the Petitioner by letter dated August 27, 1959 that the Petitioner was not entitled to retain the existing second-class entry for these publications and that, subject to the Petitioner's right to appeal, the existing entries were being annulled (Respondent's Exhibit No. 23). Respondent in his brief filed February 23, 1960 points out that no appeal was taken from the decision of April 9, 1959 denying the applications for re-entry within the required time. However, he points out the grounds for the denial of the applications for re-entry are identical with those of the annulments and in the event the Respondent's annulment of the existing entries are reversed that the Respondent will vacate the denial of the applications for re-entry and grant them.

By agreement of the parties the issues here involved were determined to be as follows:

1. Whether the magazines constitute periodicals within the meaning of Sections 224 and 226 of Title 39, U.S. Code. ^1/

2. Whether the magazines are originated and published for the dissemination of information of a public character as set forth under 39 U.S. Code 226.

3. Whether the magazines are devoted to literature, the arts, sciences, or to some special industry, as set forth by the above cited statute, and

4. Whether the magazines consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual. ^2/

In his Initial Decision dated May 5, 1960 the Hearing Examiner held that each publication was:

1. a book rather than a periodical within the meaning of Sections 224 and 226 of Title 39 U.S.C.;

2. consisted primarily of novelty pages, and

3. was not originated and published for the dissemination of information of a public character.

He, however, declined to find each publication was not devoted to literature, the arts, sciences or some special industry and adopted the Petitioner's proposed finding of fact that:

"the printed pages comprising Petitioner's periodicals contain blank spaces for writing and marking but these blank spaces must be read in conjunction with the directions given in the crossword puzzle and are part of an entire written page."

The Petitioner herein has taken the position that having been granted the second-class mailing privileges in the past that these privileges cannot be revoked even though originally erroneously granted. The Respondent admits that since this is revocation proceeding that the Respondent has the burden of proving the publications here being considered are not publications entitled to the second-class mailing privileges within the meaning of Sections 224 and 226 of Title 39, U.S.C. Respondent contends, however, as a matter of law that these publications are not now publications such as are entitled to the privilege that they have not changed in substance since the granting of the original entry, that the publications were not legally entitled to the privileges at the time the entries were originally erroneously granted and contends further if the Respondent shows affirmatively that the publications do not meet the standard established by law at this time that the Respondent had thus carried the burden of proof and is entitled to have the claimed illegal and improper original entries revoked.

Petitioner requested a finding that the publications here involved were comprised or printed pages which contained "blank spaces for writing and marking, but these blank spaces must be read in conjunction with the directions given in the crossword puzzle and are part of an entire written page." The Hearing Examiner under paragraph 7 in his preliminary findings of fact adopted Petitioner's proposed findings No. 8 through 12 which included the proposed finding No. 10 above quoted. The Respondent excepted to this contending that it was error for the Hearing Examiner to fail to conclude as a matter of law that none of the publications here involved were "devoted to literature, the arts, sciences, or to some special industry," and also excepted to the adoption of the Petitioner's finding of fact No. 10 as set forth above.

The Hearing Examiner herein has attempted in his Decision to justify his adoption of this wording by pointing out that in The Crosswords Pleasure case the Petitioner undertook the burden of proof. It appears that in this the Hearing Examiner is not correct. In the Crossword Pleasure proceeding, in which both revocation of existing entries and denial of additional entries were involved, the revocation and denial together were treated in a single consolidated proceeding in which the Hearing Examiner required the Respondent to proceed first. When the Respondent had concluded his case the Petitioner then put in his evidence. Regardless of the controversy raised in this connection it seems very clear that what we are arguing about is a conclusion of law based upon the publications themselves which are in evidence. Who had the burden of proof or who introduced the evidence is not so important as what the evidence actually shows or what the record in this case reveals. It is not to be based upon the bare claims of one party or the other as to the purpose for which the publications are produced but on what these publications reveal from an examination of their contents and what is thus disclosed that the solver of the puzzles is required to do.

It is entirely clear from an examination of the exhibits that none of these crossword puzzle publications are originated and published for the dissemination of information of a public character nor are they devoted to literature, the sciences, arts, or some special industry.

Crossword puzzles are a form of entertainment or enjoyment for the solver who may find satisfaction in the accomplishment of a completed solution. They are frequently utilized as a time killer to wile away empty hours. While occasionally the solver may find a new word or a new meaning for a word, there is no literary advantage as such gained in the solution. Certainly these publications are purchased for the crossword puzzles they contain. The page or two of little stories are incidental and are not the cause of the procuring of the same by the purchaser.

It is not clear what is meant by the wording of Petitioner's requested finding of fact No. 10. Surely it is not contended that a page of the publication containing a blank crossword puzzle is a complete printed page. It is obvious that it is in reality a page containing "blank spaces for writing or marking" and when filled in, the page may be complete but still is partly written and partly printed and in any event is a novelty page as defined by the postal regulations. The Hearing Examiner's adoption of the request No. 10 above referred to is rejected.

The Petitioner excepts to the Hearing Examiner's determination that the publications here involved are not periodicals within the meaning of 39 U.S. Code 224 and 226, (supra). In this determination the Hearing Examiner is correct because it is evident from the record that these publications do not meet the standards which would bring them within the classification of "periodical publications." A periodical is a publication which appears at stated intervals, contains a variety of original articles by different authors, is devoted to general literature or some special branch of learning or to a special class of subjects. Each issue of a periodical is incomplete in itself and indicates a relation with prior or subsequent numbers of the same series. Houghton v. Payne, 194 U.S. 88.

The contents of each of these magazines consists of regular fill-in crossword puzzles, fill-in crossword puzzles, and little articles, some of which are in the nature of what is known as "Who-Dunits". The answers to all of the crossword puzzle material are contained in the back of each publication. In certain cases, the "Who-Dunits" have the answers in the next issue.

There is no "literary continuity" present in these publications. Each could stand separate and distinct. Each issue of each publication is entirely complete within itself and is almost entirely devoted to crossword puzzles and their answers. The Hearing Examiner was correct in determining that the publications are books as that term is understood and interpreted.

"Generally a printed publication is a book when its contents are complete in themselves, deal with a single subject, betray no need for continuation, and perhaps have an appreciable size. Smith v. Hitchcock, 226 U.S. 53."

The Hearing Examiner likewise determined that these publications consist primarily of novelty pages within the meaning of the cited section of the Postal Manual (supra). It is clear that these publications are comprised of printed sheets and may be used for purposes other than reading. Most of the pages in the book are used for the crossword puzzles, have blank spaces for writing or marking and are plainly novelty pages. Since the regulation provides that the number of novelty pages in a publication may constitute only a minor portion of the total pages, the publications here involved could not qualify for second-class entry.

The Petitioner contends herein that where an administrative agency has taken positive action in granting second-class mail privileges to the Petitioner's publications over a period of years even though at a later time the agency should determine that the original permissive grant was made in error, that the error cannot be corrected to the detriment of the Petitioner who relied thereon. In his brief and argument filed in connection with his appeal he lays great stress upon the situation in which he claims to find himself. He points out that he has enjoyed the second-class privileges for as long as 25 years in some instances and that there are many of his competitors who still enjoy these privileges for similar publications. He contends that even though this privilege was erroneously granted him through mistake of either law or fact that he has a valuable property right therein and that the Post Office Department has discriminated against him because his competitors who have not had their second-class entries disturbed are enjoying an unfair advantage over him.

It is the Respondent's contention that the Post Office Department is under a continuous duty to transport at the second-class rate only such matter as is legally entitled to that rate. That if an error was originally made and if after further consideration the Postmaster General determines that someone made an error in the classification in the past, that it is the duty of the Postmaster General to correct that error immediately upon its discovery and to commence charging the proper rate of postage.

The fact that there are other publishers who issue similar publications as Petitioner and who likewise have long enjoyed the second class privileges through error or mistake cannot operate to protect Petitioner from a revocation of the illegally granted entry and it likewise cannot absolve the Postmaster General from his duty to revoke such improper entries in all such cases as quickly as same is uncovered.

It would be well to set out at this point some of the pertinent statements enunciated by the United States Supreme Court in Houghton v. Payne, 194 U.S. 88. There the court held as follows:

"A periodical is defined by Webster as 'a magazine or other publication which appears at stated or regular intervals,' and by the Century Dictionary as 'a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself.' By section 10 newspapers are included within the class of periodical publications, although they are not so regarded in common speech. By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, appearing at stated intervals, have been treated as periodicals and entitled to the privileges of second-class mail matter. Payne v. Railway Publishing Co., 20 D. C. App. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter falling within the third class.********

Great stress is laid by counsel upon the original interpretation of the term 'periodical,' as applied to these books, which it is said was continued without change under different administrations and by several successive Postmasters General and from 1879, the date of the passage of the act, until 1902, when the certificates granted by the former Postmasters General were revoked by the defendant and a different classification made of the publications now in issue ********

We had occasion to consider this subject at length in the case of United States v. Alabama R.R. Co., 142 U.S. 615, 621, in which we held that this court would look with disfavor upon a change whereby parties who have contracted with the Government on the faith of a former construction might be injured; especially when it is attempted to make the change retroactive, and to require from a contractor a return of moneys paid to him under the former construction. This case is not open to the same objections. No contract with the

Government is set up whereby the latter agreed to carry these publications as second class mail matter. Much less is any repayment demanded of money paid by the Government under the prior construction. The action of the Government consists merely in the revocation of a certificate or license admitting these publications as mail matter of the second class. No vested right having been created by such certificate, no contract can be said to be impaired by its revocation. Salt Co. v. East Saginaw, 13 Wall, 373; Grand Lodge v. New Orleans, 166 U.S. 143, 147.********

But in addition to these considerations it is well settled that 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. United States v. Graham, 110 U.S. 219; United States v. Finnell, 185 U.S. 236. 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.********

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 and it is affirmed."

Based upon the full record in this cause and for the reasons heretofore set forth, it is determined that the publications here involved entitled "Speedy Crosswords," "Easy Crosswords," "Keen Crosswords,"" "Spare-Time Crosswords," "handy Crosswords," "Simple Crosswords," and "Champion Crosswords" do not meet the standards which are required for them to be entitled to second-class entry in the mails. I find that they are books and not periodicals within the meaning of 39 U.S. Code Section 224 and 226. I find also each of the above publications consist primarily of novelty pages within the meaning of Section 132.483 of the Postal Manual and that none of the publications is originated and published for the dissemination of information of a public character and to the extent that the Initial Decision by the Hearing Examiner made these determinations, it is affirmed and each such determination is sustained.

I also find that none of the publications above named are devoted to literature, the arts, sciences, or to some special industry and that the Respondent properly denied each in the Petitioner's several applications for re-entry and properly revoked the existing entries of the several publications involved

in this proceeding. The determination of the Hearing Examiner in his Initial Decision that the record fails to show that they are not devoted to literature, the arts, sciences, or to some special industry as required by the pertinent statute is reversed.

There are a number of proposed findings of fact and conclusions of law which have not been specifically considered. This is for the reason that they are not deemed pertinent or necessary to a determination herein and that their consideration is immaterial or unnecessary to the final decision herein. The other proposed findings and conclusions of the parties have been adopted or rejected to the extent the same are embodied herein.

1/ § 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. ?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 paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications. 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.

2/ § 132.483. Novelty Pages. Novelty pages are printed sheets that may be used for purposes other than reading, or printed sheets with novel characteristics. Novelty pages must be prepared specifically for and intended as integral pages of newspapers or other periodical publications. Blank sheets may not be carried as pages. 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 thirdor fourth-class mail. The following kinds of pages are examples of novelty pages that may be included in second-class publications:

a. Printed pages bearing words, perforations, or symbols indicating they are for detachment.

b. Pages having printed pictures for cutting out.

c. Printed pages having blank spaces for writing or marking.

d. Pages having printed illustrations pasted to them.

e. Pages with coupons or application or order forms occupying not more than one-half of the page.