Where the decision of questions of fact is committed by Congress
to the judgment and discretion of the head of a department, his
decision thereon is conclusive, and even upon mixed questions of
law and fact, or of law alone, his action will carry with it a
strong presumption of its correctness, and the courts will not
ordinarily review it, although they have the power, and will
occasionally exercise the right of so doing.
As to what is second class mail matter, Houghton v.
p. 194 U. S. 88
This was a bill to compel the recognition by the Postmaster
General of the right of the plaintiff corporation to have a
periodical publication, known as "Masters in Music," received and
transmitted through the mails as matter of the second class, and to
enjoin defendant from enforcing an order, theretofore made by him,
denying it entry as such. This case took the same course as the
preceding ones. 31 Wash.L.Rep. 395.
MR. JUSTICE BROWN delivered the opinion of the Court.
The first number of Masters in Music was issued in January,
1903, and an application was immediately made to the Postmaster
General for its admission to the mails as second-class mail matter.
The application was denied, and plaintiff immediately, and before
the issue of another number, filed this bill. The publication
purports to be a "monthly magazine,"
Page 194 U. S. 107
salable at 20 cents per number, and to subscribers at $2 a year.
The first number is devoted to the works of Mozart and contains a
portrait, a biography of four pages, an essay of ten pages upon his
art, and thirty-two pages of his music. The preliminary page
contained a notice to the effect that
"Masters in Music will be unlike any other musical magazine.
Each monthly issue, complete in itself, will be devoted to one of
the world's great musicians, giving thirty-two pages of engraved
piano music, which will comprise those compositions or movements
that represent the composer at his best, with editorial notes
suggesting the proper interpretation; a beautiful frontispiece
portrait, a life, and estimates of his genius and place in art,
chosen from the writings of the most eminent musical critics. The
text will thus constitute an interesting and authoritative monthly
lesson in musical history; its selections of music will form a
library of the world's musical masterpieces, and all at slight
cost. . . . The announcement of the contents of the February issue,
which will treat of Chopin, will be found on another page."
The Postmaster General placed his refusal to allow this magazine
to be transmitted as second-class mail matter upon the ground that
each number was complete in itself; had no connection with other
numbers save in the circumstance that they all treated of masters
in music, and that these issues were in fact sheet music disguised
as a periodical, and should be classified as third-class mail
Conceding the principle established in the two cases just
decided to be that the fact that books published at stated
intervals and in consecutive numbers do not thereby become
periodicals, even though in other respects they conform to the
requirements of section 14, cases may still arise where the
classification of a certain publication may be one of doubt. Such
is this case. But we think that, although the question is largely
one of law, determined by a comparison of the exhibit with the
statute, there is some discretion left in the Postmaster General
with respect to the classification of such publications
Page 194 U. S. 108
as mail matter, and that the exercise of such discretion ought
not to be interfered with unless the court be clearly of opinion
that it was wrong. The Postmaster General is charged with the duty
of examining these publications and of determining to which class
of mail matter they properly belong, and we think his decision
should not be made the subject of judicial investigation in every
case where one of the parties thereto is dissatisfied. The
consequence of a different rule would be that the court might be
flooded by appeals of this kind to review the decision of the
Postmaster General in every individual instance. In the case of
American School of Magnetic Healing v. McAnnulty,
187 U. S. 94
187 U. S. 104
the Post Office authorities were held to have acted beyond their
authority in rejecting all correspondence with the plaintiff upon
the subject of the treatment of diseases by mental action; but
while it was said in that case that the question involved was a
legal one, it was intimated that something must be left to the
discretion of the Postmaster General.
It has long been the settled practice of this Court in land
cases to treat the findings of the Land Department upon questions
of fact as conclusive, although such proceedings involve to a
certain extent, the exercise of judicial power. As was said in
Burfenning v. Chicago, St. Paul &c. R. Co.,
163 U. S. 321
163 U. S.
"Whether, for instance, a certain tract is swamp land or not,
saline land or not, mineral land or not, presents a question of
fact not resting on record, dependent on oral testimony, and it
cannot be doubted that the decision of the Land Department, one way
or the other, in reference to these questions, is conclusive, and
not open to relitigation in the courts, except in those cases of
fraud, etc., which permit any determination to be reexamined."
(Citing cases). See also Johnson v. Drew, 171 U. S.
; Gardner v. Bonestell, 180 U.
But there is another class of cases in which the rule is
somewhat differently, and perhaps more broadly, stated, and that is
that, where Congress has committed to the head of a department
certain duties requiring the exercise of judgment
Page 194 U. S. 109
and discretion, his action thereon, whether it involve questions
of law or fact, will not be reviewed by the courts unless he has
exceeded his authority or this Court should be of opinion that his
action was clearly wrong. In the early case of Decatur v.
14 Pet. 497, it was said that the
official duties of the head of an executive department, whether
imposed by act of Congress or resolution, are not mere ministerial
duties, and, as was said by this Court in the recent case of
Riverside Oil Co. v. Hitchcock, 190
U. S. 324
"Whether he decided right or wrong is not the question. Having
jurisdiction to decide at all, he had necessarily jurisdiction, and
it was his duty to decide as he thought the law was, and the courts
have no power whatever, under those circumstances, to review his
determination by mandamus or injunction."
In Marquez v. Frisbie, 101 U.
, which was a bill in equity to review the
decision of the Land Department in a preemption case, Mr. Justice
Miller remarked (p. 101 U. S.
"This means, and it is a sound principle, that, where there is a
mixed question of law and fact, and the court cannot so separate it
as to see clearly where the mistake of law is, the decision of the
tribunal to which the law had confided the matter is
In Gaines v.
7 Wall. 347, it was held that the court
would no more interfere by injunction than by mandamus to control
the action of the head of a department, and in United States ex
Rel. Dunlap v. Black, 128 U. S. 40
was said that the courts will not interfere by mandamus with the
executive officers of the government in the exercise of their
ordinary official duties, even where those duties require an
interpretation of the law, no appellate power being given them for
that purpose. See also Redfield v. Windom, 137 U.
The rule upon this subject may be summarized as follows: that
where the decision of questions of fact is committed by Congress to
the judgment and discretion of the head of a department, his
decision thereon is conclusive, and that even upon mixed questions
of law and fact, or of law alone, his action will carry with it a
strong presumption of its correctness, and
Page 194 U. S. 110
the courts will not ordinarily review it, although they may have
the power, and will occasionally exercise the right of so
Upon this principle, and because we thought the question
involved one of law, rather than of fact, and one of great general
importance, we have reviewed the action of the Postmaster General
in holding serial novels to be books, rather than periodicals; but
it is not intended to intimate that in every case hereafter
arising, the question whether a certain publication shall be
considered a book or a periodical shall be reviewed by this Court.
In such case, the decision of the Post Office Department, rendered
in the exercise of a reasonable discretion, will be treated as
In the case of Masters in Music, the question really is whether
a pamphlet, complete in itself, treating of the works of a single
master, with a greater part of the pamphlet devoted to specimens of
his genius, shall be controlled by the cover, which declared that
these numbers will be issued monthly at a certain subscription
price per year. Although a comparison of the exhibit with the
statute may raise only a question of law, the action of the
Postmaster General may have been, to a certain extent, guided by
extraneous information obtained by him, so that the question
involved would not be found merely a question of law, but a mixed
question of law and fact. While, as already observed, the question
is one of doubt, we think the decision of the Postmaster General,
who is vested by Congress with the power to exercise his judgment
and discretion in the matter, should be accepted as final. The
decree of the court of appeals is therefore
MR. JUSTICE HARLAN (with whom concurred THE CHIEF JUSTICE)
THE CHIEF JUSTICE and myself are of opinion that the publication
here in question is second-class mailable matter, and cannot
Page 194 U. S. 111
concur in the opinion and judgment of the Court. Our reasons for
dissenting are stated in the opinion filed by us in Houghton v.
But there are some things in the opinion of the Court in this
case to which we shall advert. It is said that the case is one of
doubt. Now it was admitted at the bar by the government that the
publication known as "Masters in Music" would be carried in the
mails as second-class matter if the question be decided in
accordance with the construction placed upon the statute by the
Department for more than sixteen years continuously prior to the
present ruling of the Department. We had supposed it to be firmly
settled that the established practice of an executive department
charged with the execution of a statute will be respected and
followed, especially if it has been long continued, unless such
practice rests upon a construction of the statute which is clearly
and obviously wrong. In United States v. Philbrick,
120 U. S. 59
which involved the construction placed by an executive department
upon an act of Congress, this Court said: "Since it is not clear
that that construction was erroneous, it ought not now to be
overturned." So, in United States v. Healey, 160
U. S. 145
, the Court said that it would accept the
uniform interpretation by the Interior Department of an act
relating to the public lands, "as the true one, if, upon examining
the statute, we found its meaning to be at all doubtful or
obscure." The authorities to that effect are numerous.
12 Wheat. 206; Hahn v. United
States, 107 U. S. 402
United States v. Graham, 110 U. S. 219
Brown v. United States, 113 U. S. 571
United States v. Philbrick, 120 U.
; United States v. Johnston, 124 U.
; United States v. Hill, 120 U.
; United States v. Finnell, 185 U.
; United States v. Alabama G. S. R. Co.,
142 U. S. 615
Hewitt v. Schultz, 180 U. S. 139
180 U. S. 157
Some of them are cited in the opinion of the court in Houghton
The rule of construction which this Court has
recognized for more than three quarters of a century is now
overthrown. For it is adjudged that the practice
Page 194 U. S. 112
of the Post Office Department, covering a period of sixteen
years and more, need not be regarded in this case, although the
construction of the statute in question is admitted to be doubtful.
We cannot give our assent to this view.