In the Matter of the Petition by

GREAT AMERICAN PUBLICATIONS, INC.
270 Madison Avenue,
New York 16, New York

for a hearing upon its application for second-class entry for
its publication "SPORTS CAR GUIDE."

P.O.D. Docket No. 1/220

September 15, 1960

William A. Duvall Chief Hearing Examiner

POST OFFICE DEPARTMENT, WASHINGTON, D. C.

SUPPLEMENTAL INITIAL DECISION OF HEARING EXAMINER

When this proceeding first arose, there were several reasons asserted by the Director, Division of Postal Services, Post Office Department, the Respondent, why the publication known as "Sports Car Guide," published by Great American Publications, Inc., the Petitioner, did not meet the requirements for eligibility for second-class mail privileges. Because of the withdrawal of certain of the grounds for the proposed denial of second-class mail privileges for this publication, the case ultimately was tried on only one issue, namely, whether the publication was designed primarily for free circulation within the meaning of the postal laws and regulations. An Initial Decision was issued on May 24, 1960, in which this issue was decided in favor of the Petitioner.

While the matter was on appeal to the Judicial Officer, the Respondent filed a motion to reopen the hearing. In the motion it was stated that it had come to the Respondent's attention that the Petitioner had permanently discontinued publication of "Sports Car Guide" and that, in order to be entitled to second-class mailing privileges, a publication must be published at regular intervals, at least four times a year.

Respondent's motion was granted and the case was remanded for the receipt of additional evidence. It was unnecessary to hold a further hearing for the receipt of evidence on the new issue because, attached to the Respondent's motion to reopen, there was a copy of a statement signed by Mr. Saul Feinchel, Business Manager of the Petitioner, indicating that the publication had been permanently discontinued. Since, by stipulation between the parties, no further evidence was required, the necessity for reopening the hearing was obviated.

Now, the facts to be considered are as follows: Four issues of the publication, numbered Volume 1, Number 1 through Volume 1, Number 4, were published, respectively, in September, 1959, November, 1959, January, 1960 and March, 1960. After the publication of the March, 1960 issue, publication ceased.

Thus, at the present time, the portion of Section 14 of Chapter 180 of the Act of March 3, 1879, as amended (20 Stat. 359; 39 U.S.C. 226) under consideration reads as follows:

"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, * * *"

I find that "Sports Car Guide" was issued four times at regular intervals.

The Respondent requests that the supplementary conclusion of law be reached: That second-class mailing privileges may not be granted to a publication which has been voluntarily discontinued prior to the termination of the administrative proceeding. I do not believe that the reaching of this conclusion would be proper.

When, as in this case, a publication has been regularly issued, and publication is terminated, all of which events have taken place during the pendency of the proceeding and prior to the issuance of the final Departmental Decision, there would still be left unanswered the question as to the rate of postage which should be paid on the four issues of the publication that were mailed. If the Petitioner has produced a publication which is otherwise entitled to entry into the mails as second-class matter, in the circumstances described above, it is reasonable that he have some right to assert his claim for the privileges for the issues so published and mailed. It would further seem that the Petitioner should be allowed to press whatever claims he might have before the Post Office Department, the agency having cognizance of the subject matter. Otherwise, the decision of the Director of the Postal Service Division would be final at the administrative level and the publisher's only avenue for redress would be by appeal to the courts. It, therefore, is deemed to be proper to process this administrative proceeding in the regular way in order that the correct rate of postage may be determined for those copies of the publication which have been mailed.

The question now is whether "Sports Car Guide" was regularly issued at stated intervals as frequently as four times a year. At first blush, it appears that the resolution of this question would be a simple matter, but upon further examination one finds that the first impression, in this instance is deceiving. When the Congress required that publications be issued "as frequently as four times a year" what "year" did the Congress intend. There are several years which, conceivably, might have been in the Congressional mind, such as the year beginning with January 1 and ending with December 31, some fiscal year, ^1/ a year after the date on which the publication commenced, or some other year. Counsel for neither party addressed himself to this specific question, but it is believed to be of sufficient substance to warrant its being raised here, so that, if either party is so disposed, it can be considered further and decided on appeal.

No cases relating to this question in its present context have been found, but the following quotations from Corpus Juris Secundum may shed some light:

"The word 'year' is broadly defined as meaning a period of time, and it is more specifically defined as the period in which the revolution of the earth around the sun, and the accompanying changes in the order of nature, are completed; a determinate and well known period consisting commonly of three hundred and sixty-five days, and in leap years three hundred and sixty-six; a period of twelve months; twelve calendar months; and, indeed, a year, twelve months, fifty-two weeks, and three hundred and sixty-five days, all denote the same total period of time.

"It is well established both at common law and by statute that, unless otherwise expressed, the word 'year' when used in a contract, judicial proceeding, statute or constitution, ordinarily is understood as meaning a calendar year of three hundred and sixty-five days or of twelve months, and it means a calendar year regardless of whether it be a leap year or otherwise. When the word 'year' is used to signify a calendar year it frequently means the period beginning the first day of January and ending the succeeding thirty-first day of December, but this is not necessarily so, since in all cases the meaning of the word 'year' is dependent on the subject matter and the connection in which it is used, and it may mean a period of twelve months or twelve calendar months beginning on a day other than the first of January." (Citing cases, 86 C.J.S. 832-3)

* * * * * * * *

"In computing a period of one year from the happening of a particular event, the year begins the day following the day the event occurred and ends at the close of the first anniversary of the day the event occurred, that is, the year expires at midnight of the last day." (Citing cases, 86 C.J.S. 834-5)

While it is not so stated in the supplementary brief submitted by the Respondent, it is implicit in his presentation that the Respondent considers the year which the Congress had in mind to be the year beginning with January 1 and ending with December 31. Let us examine this idea in somewhat more detail.

Under the Respondent's theory, if it is assumed that a publisher desires to issue a quarterly publication it is obvious that in order to be eligible for second-class mail privileges, if his eligibility depends solely upon the issuance of four issues per year, that the initial copy of his publication must be issued in January, February or March of that year. Concerning a publication of any other frequency, the publisher would have to produce his first issue at such time as would permit him to produce four issues of the publication prior to December 31 of the first year of publication, or the first issues of the publication, regardless of their content and format, would not be eligible for second-class mailing privileges.

Looking at a publication from the other end, let it be assumed that one of the popular periodicals of the day should terminate publication. If the publication of any periodical should terminate prior to the publication of its fourth issue for the year of termination, then the issues published in the year of termination, regardless of how long the publication properly might have enjoyed second-class mail privileges, would have to be charged with postage at some rate higher than that for second-class matter.

Perhaps the point which is being made may be brought into sharper focus if the question under consideration is related to another field. Prior to the time when salaries of federal employees were fixed at annual rates of pay, such salaries were stated as so many dollars "per annum," or so much money a year. (See, for examples, the Act of February 21, 1879 (the year of the enactment of the provision of law now being considered) Chapter 95, 20 Statutes at Large 317 and the Act of January 3, 1887, Chapter 14, Section 3, 24 Statutes at Large 356.) If "per annum" in these statutes had been construed to indicate "for each year in which the employee was actually on the rolls from January 1 through December 31 of that year," this interpretation would, of course, have meant that a person employed on April 1 of a year would work for nine months without any pay for his services. It goes without saying that no such construction of the words "per annum" in these statutes ever obtained. When the assumed person was employed he received a pro rata portion of the compensation for his position, based upon the portion of the year that he was employed. After a year of employment, however, he would have received the amount of annual salary for that position, and, of course, after his initial period of employment, he could consider his compensation as running from January 1 through December 31. The point is that his employment was effective and he was paid beginning with the time he entered upon federal service, regardless of the date of his entry into service. (For related cases, see United States v. Dickson , 40 U. S. 141 and Cooper v. United States , 81 F. Supp. 734.)

It is a cardinal principle of statutory construction that where the language used in a statute is clear and unambiguous, to resort to construction and interpretation of the particular statute is unnecessary and unwarranted. In this particular case, however, there appears to be room for reasonable doubt as to what was intended to be meant by the phrase "as frequently as four times a year." WIth reference to construing a statute, the Supreme Court said in Mastro Plastics Corporation v. N.L.R.B. , 350 U. S. 270, at page 285:

"In expounding a statute, [the Court] must not be guided by a single sentence or member of a sentence, but [it must] look to the provisions of the whole law, and to its object and policy."

At the time when the present statute was under consideration by the Congress, Congressman Money of Mississippi, Manager of the Bill, said:

"We know the reason for which papers are allowed to go at a low rate of postage, amounting almost to the franking privilege is because they are the most efficient educators of our people. It is because they go into general circulation and are intended for the dissemination of useful knowledge such as will promote the prosperity and the best interest of the people all over the country." (Congressional Record, February 28, 1879, p. 2135.)

In Houghton v. Payne , 194 U. S. 88, the Supreme Court quoted Speaker Cannon of the House of Representatives as saying:

"The policy of that legislation being to encourage the dissemination of sound and desirable reading matter among the masses of the people of the country at cheap rates."

The foregoing statements by the gentlemen who were members of Congress at the time of the enactment of the statute under consideration indicate that it was the purpose of the Congress to secure the rapid and general dissemination of information of a public character. In view of this obvious intention, any interpretation of this statute which would limit publishers as to the time of year in which they must produce their publications in order to be sure that four copies would be issued between January 1 and December 31 of the year of initial publication, as well as the year of termination of publication, now becomes inconsistent with the stated purposes for which the statute was enacted, and, one might say, even a bit impractical. On this point, it was stated in Jacobs v. Tawes , 250 F.2(d) 611, at page 615:

"As we have frequently pointed out, statutes should be construed to avoid absurd consequences, as Congress must be presumed not to have intended what was absurd ***."

In view of all of the foregoing considerations, a reasonable interpretation of the phrase "as frequently as four times a year" is that the publication must be issued as frequently as four times within a calendar year measured from the date of the publication of the initial issue. In view of the fact that beginning in September, 1959, and within the next succeeding six months, at regular, bi-monthly intervals, four issues of "Sports Car Guide" were produced, I conclude that as a matter of law that these four issues of the publication are entitled to entry into the mails as second-class mail matter.

The proposed denial by the Respondent of second-class mail privileges for the publication "Sports Car Guide" is set aside, and the application for entry is granted.

/s/

1/ At the time of the enactment of the statute in question, the Government's fiscal year coincided with the January 1 - December 31 year.