Even though a question of law be raised by an order of the
Postmaster General excluding matter from the mails, the court will
not interfere unless clearly of the opinion that the order is
wrong.
Bates & Guild Co. v. Payne, 194 U.
S. 106.
Every series of printed papers published at definite intervals
is not necessarily a periodical within the meaning of the
provisions of the Act of March 3, 1879, c. 180, 20 Stat. 355,
defining second-class mail matter.
Books that are expressly embraced by § 17 of the Act of March 3,
1879, as third-class matter and subject to the higher rate of
postage cannot be made second-class matter by simply publishing
them at regular intervals, even though, as in this case, purporting
to be a series of adventures of the same person.
Houghton v.
Payne, 194 U. S. 88.
"Periodical," as used in the Act of March 3, 1879, implies that
no single number of a series is a complete book in itself.
As a general rule, with few exceptions, a printed publication is
a book within the meaning of § 17 of the Act of March 3, 1879, when
its contents are complete in themselves, deal with a single
subject, need no continuation and have appreciable size, and so
held that the publications involved in this case are
books, and not periodicals.
Where the point to be decided is a pure question of law which
can be reviewed by the courts, the Postmaster General satisfies the
requirements of the Act of March 3, 1901, c. 851, 31 Stat. 1099,
1107, by simply hearing the party claiming to be aggrieved by an
order excluding matter from the mail, and one so heard, and who is
not prevented from offering material evidence, cannot complain in
the court reviewing the order that he was denied a hearing under
the act.
34 App. D.C. 521 and 535 affirmed.
Page 226 U. S. 54
The facts, which involve the validity of orders of the
Postmaster-General excluding appellants' publications from
second-class mail privileges, are stated in the opinion.
Page 226 U. S. 57
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are bills to restrain the Postmaster General from revoking
orders according second-class mail privileges to the several
plaintiffs -- in the first-named case in respect of a series of
publications issued under the name of the Tip Top Weekly; in the
second, in respect of a similar one entitled Work and Win. The
ground of the bills is that the privileges were annulled without
granting the hearing required by the Act of March 3, 1901, c. 851,
31 Stat. 1099, 1107, and that the publications are periodical
publications within the meaning of the Act of March 3, 1879, c.
180, §§ 7, 10, 14, 20 Stat. 358, 359, and therefore must be carried
as second-class matter, by the very terms of the law.
We will take up the second question first. The facts are not in
dispute, and are alike in the two cases. The publications are
weekly, each containing a single story complete in itself, but the
same character is carried through the series, and the reader is led
by announcements to expect further tales after the one before him.
Most of the stories are by the same author. The element of sequence
may be indicated by a few of the titles in the Tip Top Weekly:
Frank Merriwell in Arizona; or, the Mysteries of the Mine. Frank
Merriwell's Friend; or, Muriel the Moonshiner. Frank Merriwell's
Double; or, Fighting for Life. Frank Merriwell Meshed; or, the Last
of the Danites. Frank Merriwell's Magic; or, the Pearl of Tangier.
Frank Merriwell in London; or, The Grip of Doom, etc., etc. There
is nothing else in a number except a roll of honor or list of some
of those who have
Page 226 U. S. 58
endeavored to increase the circulation of the series, laudatory
letters with insignificant comments, and a page or two of inquiries
as to physical culture, purporting to come from readers, with short
replies, all more or less incident to the muscular tenor of the
tales. The publications measure about eleven by eight inches on the
outside, are said to contain about thirty thousand words, have
thirty-two pages, including a page of advertisement, and exclusive
of the cover, of which twenty-six are filled by the story. The
front cover bears a colored illustration of some incident narrated
within.
Thus, a question of law is raised, although, as suggested in
Bates & Guild Co. v. Payne, 194 U.
S. 106,
194 U. S. 108,
we should not interfere with the decision of the Postmaster General
unless clearly of opinion that it was wrong.
Id.,
194 U. S. 110.
American School v. McAnnulty, 187 U. S.
94,
187 U. S. 106;
Public Clearing House v. Coyne, 194 U.
S. 497,
194 U. S. 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,
194 U. S. 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,
Page 226 U. S. 59
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 coexist 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.
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
Page 226 U. S. 60
the time, should be held to fall into the second class. From
this point of view, the Tip Top Weekly and Work and Win are books.
They are large enough to raise no doubt on that score; each volume
is complete, in itself, and betrays no inward need of more,
notwithstanding that, as in the highwayman stories of an earlier
generation, further adventures to follow are promised at the
end.
The decision that these weeklies are books shortens what needs
to be said as to the sufficiency of the hearing. The parties were
notified that they would be granted a hearing at the office of the
Third Assistant Postmaster General, Washington, District of
Columbia, at a fixed day and hour, to show cause why the admission
to the second-class should not be revoked and the third-class rate
of postage charged, on the ground that the issues were not
periodical publications, but were books. They sent a representative
to Washington who left a printed response in advance, asking for
further opportunity for argument if the authorities were not
satisfied, and who called at the appointed time. He was referred to
the Chief of the Classification Division -- the proper person.
Rev.Stat. § 161. Postal Laws and Regulations, 1902 ed. §§ 6, 19,
subsec. 1, 8. He saw him and asked if the brief had been received,
was answered yes, and then asked if the other had any questions to
ask, and was answered no. He presented a pamphlet, "The Influence
of the Dime Novel," and departed, offering no further argument,
seemingly somewhat aggrieved at not having seen the Third Assistant
Postmaster General in person. Subsequently, the Assistant Attorney
General for the Post Office Department was consulted by the
officials, and in accordance with his opinion, the order was issued
which the plaintiffs seek to restrain.
The matter was argued to us with some feeling, and it is not
impossible that the interview gave an impression of official
indifference. But the plaintiffs allege in their bills that the
question was a pure question of law; it was a question
Page 226 U. S. 61
that they had a right to have reviewed and have had reviewed in
this Court; it was clearly defined; the official was not called on
to state reasons or to discuss -- his only duty was to hear, and,
beyond offering the printed brief, the plaintiffs' representatives
showed no desire to be heard. This is not a case in which, even by
manner or indirection, the plaintiffs were prevented from offering
material evidence. The facts and the question were as plain then as
now. The conclusion reached was right, and, in the circumstances
disclosed, we are of opinion that the plaintiffs had no cause to
complain.
Decrees affirmed.