In the Matter of the Petition by                                )
                                                                               )
UNIVERSITY OF OREGON                                      )
Office of Publications                                             )
Susan Campbell Hall                                               )
Eugene, Oregon 97403                                          )    P.S. Docket No. 3/110
                                                                               )
Proposed Annulment of Second-Class                  )
Mail Privileges for "UNIVERSITY OF                       )
OREGON BULLETIN"                                               )

APPEARANCES:                                                     Edward Branchfield, Esq.
                                                                               Assistant Attorney General and Chief Counsel
                                                                               Department of Justice
                                                                               General Counsel Division
                                                                               P. O. Box 3175
                                                                               Eugene, Oregon 97403
                                                                               for Petitioner

                                                                               Arpad de Kovacsy, Esq.
                                                                               Law Department
                                                                               United States Postal Service
                                                                               Washington, D.C. 20260
                                                                               for Respondent

Lussier, Edward F.

POSTAL SERVICE DECISION

Petitioner has taken an appeal from the Initial Decision of Chief Administrative Law Judge William A. Duvall upholding the revocation of second-class mail privileges for the "University of Oregon Bulletin" on the basis that it is not a periodical publication as defined in Houghton v. Payne, 194 U.S. 88. Petitioner concisely states the issue on appeal as follows:

"We may quibble somewhat with the Initial Decision in its finding of procedural deficiencies such as the claim that there is no certain time when different issues of the Bulletin will be mailed. We sense that procedural problems would have triggered Postal Service offers of help in making the necessary adjustments rather than annulment. It is the meaning of the word 'periodical' which is the crux of the case."

While Petitioner takes brief exception to the finding that there is no certain time for issues of the Bulletin to be mailed stating that the Respondent's witness testified that it is permissible to make mailings from time to time, that testimony related to the requirement for a minimum of four issues each year and not to the further requirement that the publication be issued at regular intervals. The testimony of Petitioner's own witness supports the finding excepted to and the exception is disallowed. As stated above by Petitioner, this is not the crux of the case and undoubtedly could be resolved but for the overriding "periodical" issue.

Petitioner's principal exception is to the conclusion that the definition of a periodical set forth in Houghton v. Payne, supra, is controlling on its publication. The definition given there was:

"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." 194 U.S. 88 at 97.

Petitioner contends that Smith v. Hitchcock, 226 U.S. 53 (1912), "discounted the word 'original' and demolished the 'different' authors remark" and quotes the following paragraph from Mr. Justice Holmes' opinion in Smith v. Hitchcock:

"It was suggested to be sure that the distinction was between reprints of well-known works and new matter, but we can see nothing in that; neither do we find much weight in the identity of authorship, the retention of the name of the hero through successive tales, or the ever renewed promise of further wonders in the next."

Read alone the language is subject to the interpretation Petitioner places upon it but it must be read in its entire context and when so read it is apparent that it was not intended to modify the definition of a periodical laid down in the Houghton case. The excerpted portion in context reads:

"Thus a question of law is raised, although as suggested in Bates & Guild Co. v. Payne, 194 U.S. 106, 108, we should not interfere with the decision of the Postmaster General unless clearly of opinion that it was wrong. Ibid. 110. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 106. Public Clearing House v. Coyne, 194 U.S. 497, 509. We have no such clear opinion, as the decision is pretty nearly if not wholly sustained by Houghton v. Payne, 194 U.S. 88, and Smith v. Payne, 194 U.S. 104. Indeed the latter case dealt with The Medal Library, which was a periodical publication of several issues of the Tip Top Weekly bound together; as the principal plaintiff now puts it, in book form, and it is true, reprinted in a different size and shape. Some attempt was made to reargue the law of the decisions just cited, but we do not feel called upon to reopen the discussion in that part of the appellants' brief.

"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. Houghton v. Payne, 194 U.S. 88, 96. 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. It was suggested to be sure that the distinction was between reprints of well-known works and new matter, but we can see nothing in that; neither do we find much weight in the identity of authorship, the retention of the name of the hero through successive tales, or the ever renewed promise of further wonders in the next. All these might co-exist and yet each number might be a book, and if so it goes into the third class. 'Mail matter of the third class shall embrace books.' § 17." (Emphasis added)

It is apparent that what Mr. Justice Holmes has reference to in the portion of the decision quoted by Petitioner, which reaffirms rather than modifies the Houghton definition, is simply that new matter by different authors ^1/ may be present in a publication and it may still be a book not entitled to second-class privileges.

Petitioner cites the following paragraph of Smith v. Hitchcock, for the proposition that it includes college catalogues:

"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. But we can approach the question more profitably from the other end, and shall have gone as far as we need when we decide whether the numbers exhibited constitute so many books. The word book also, of course, has its ambiguities, and may have different meanings according to the connection in which it is used. For purposes of copyright the common monthly magazines may be books, yet they are not so under the present § 17. As books are not turned into periodicals by number and sequence, the magazines are not brought into the third class by having a considerable number of pages stitched together. 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. It hardly would be an exception if, where the object is information and the subject-matter is a changing one, a publication periodically issued giving information for the time should be held to fall into the second class." (Emphasis supplied by Petitioner)

The language underscored by Petitioner in the above quotation does not carry with it any necessary or probable inference that the Houghton definition of a periodical was intended to be inapplicable when viewing a publication whose subject matter is current information. Sales catalogues and telephone directories might also fall into the general category of publications which are "periodically issued" and which give "information for the time" but there would be little question that they are not periodicals in the Houghton sense.

Petitioner also contends that the long standing grant of second-class privileges to college catalogues precludes a revocation of such privileges at this time. "We are not asserting that the Postal Service is estopped. Our claim is based upon statutory interpretation long continued." (Appeal Brief, p. 9, citing Ideal Farms et al. v. Bensen, 288 F.2d 608, 615 (3rd Cir. 1961), cert. den. 372 U.S. 965; U.S. v. Leslie Salt Co., 350 U.S. 383, 396 (1956) and Norwegian Nitrogen Products Co. v. U.S., 288 U.S. 294, 315 (1933)). However, as stated by the Supreme Court in Houghton v. Payne, supra, at p. 99:

"* * * Contemporaneous construction is a rule of interpretation, but it is not an absolute one. It doe 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 duty of the Postmaster General to enforce and administer the postal laws necessarily includes the right to revoke second class privileges found, after proper administrative proceedings, to have been incorrectly granted in the first instance. In such cases no recoupment from the benefactors of the erroneous grant is involved but the privilege is revoked for future use so that the mistake is not perpetuated. As stated in Northwest Missouri State University, P.S. Docket No. 3/42 (1975): "* * * the fact that the particular privilege has been enjoyed over a long period, as in the instant case, does not serve to legalize the grant. If such were the case the correction of a mistake in the vast numbers of grants of second class mail privileges could never be permitted." This exception must accordingly be disallowed.

Petitioner's last contention is that the Postal Service action is an unlawful rate increase or change in classification in violation of the Postal Reorganization Act. This is simply not so. As has been pointed out in numerous Initial Decisions involving various college and university publications, a revocation proceeding relates not to the class as such but rather to the qualifications of the particular publication measured against the Houghton v. Payne test. See, for example, American University, P.S. Docket No. 4/47 (1975), pp. 4, 5; The Regents of the University of California, P.S. Docket No. 3/187 (1975), pp. 10, 11; Pacific Union College, P.S. Docket No. 3/178 (1975), p. 13; California Institute of Technology, P.S. Docket No. 3/166 (1975), p. 16,. The instant proceeding is not a rate case. It is an inquiry into whether the publication "University of Oregon Bulletin" is properly a "periodical publication" within the controlling legal definition. Judge Duvall concluded, and I agree, that it is not. As was indicated in Northwest Missouri State University, P.S. Docket No. 3/42 (1975) the law as laid down by the United States Supreme Court must be followed absent court or legislative action requiring differently. Accordingly, this exception must also be disallowed.

Conclusion

Petitioner's exceptions on appeal are disallowed and the Initial Decision of Chief Administrative Law Judge Duvall is hereby upheld.

1/ A point further recognized in the decision at page 97 where the Court also said, "* * * books frequently contain articles by different authors."