Hitchcock v. Smith

34 App. D.C. 521 | D.C. Cir. | 1910

Mr. Justice Pobb

delivered the opinion of the Court:

The learned trial judge based his decision upon the ground that the order revoking the privilege of mailing appellees’ publication at the second-class rate of postage “was issued without a hearing such as is provided for by law.”

We will first consider the assignments of error directed to this phase of the case. The act of March 3d, 1901 (31 Stat. at L. 1099-1107, chap. 851, U. S. Comp. Stat. 1901, p. 2655) ordains that “when any publication has been accorded second-class mail privileges, the same shall not be suspended or annulled until a hearing shall have been granted to the parties interested.” No question is here made that the Third Assistant did not have jurisdiction in the premises, the objection being as to the manner of the exercise of his jurisdiction.

It is first contended that the notice to show cause was not sufficiently explicit. This objection, we think, is without merit. The notice stated that on a day named appellees would be called upon to show cause why the second-class mail privilege should not be revoked and third-class rates charged, “upon the following ground: That the issues of the Tip Top Weekly do not constitute a newspaper or other periodical publication as required by secs. 7, 10, 12, and 14 of the act of Congress of March 3d, 1879 (chap. 180, 20 Stat. at L. 358, 359, 1 U. S. Rev. Stat. Supp. 246, U. S. Comp. Stat. 1901, pp. 2646, 2647), governing “mailable matter of the second class,” but are in fact books,” etc. No objection was raised as to the sufficiency of this notice, and the answer submitted “covered the case very fully.” The reference in the opinion of the Assistant Attorney General for the Postoffice Department to other publications of appellees is entirely immaterial. The Third Assistant testified that this opinion “was a collective one, covering a number of publications,” and was simply advisory. Moreover, appellees in their petition aver that the question whether their publication is a periodical within the meaning of the law, and entitled to registration as second-class matter, “is a pure question of law, to be determined by a comparison of the said publication itself with the conditions set out in the said act of March 3d, 1879.” That is, in effect, what they were told in the notice to show cause. While the citation might have stated in greater detail the reasons prompting it, still this was not legally necessary. The question, as suggested by appellees, was a legal one, and they were charged with notice of the requisites of a periodical, and wherein their publication, intrinsically considered, failed to respond to those requisites. Was their publication a periodical or was it a book % The Department could not change the law. It could neither add to nor take from the requisites' of a periodical. . It could simply apply the law which, theoretically, was as well known to appellees as to it. We rule, therefore, that the notice given appellees was sufficient to enable them intelligently to defend the privilege theretofore extended.

The next question is whether appellees were accorded a hearing. In determining this question it must be remembered that no fixed and arbitrary rule has been laid down, and that hearings of such a nature are necessarily much more informal than judicial hearings. Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324. Due process of law, in a case like the present, is had when full opportunity is presented to introduce all the evidence and arguments which the party interested deems important, and to be confronted with witnesses against him, he having had notice of the question at issue. Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421, 38 L. ed. 1031, 14 Sup. Ct. Rep. 1114; Londoner v. Denver, 210 U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep. 708; In Garfield v. United States, 32 App. D. C. 153-158, the question under consideration related to disbarment proceedings in the Interior Department, and this court, through Mr. Chief Justice Shepard, said: “Due process of law in such cases requires specific charges, due notice of the same, an opportunity to make specific answers to them, an opportunity to cross-examine the witnesses in support of them, an opportunity to adduce testimony in contradiction of them, and an opportunity for argument upon the law and facts.”

In this case a written answer was submitted. The representative of appellees did not ask to introduce witnesses. There was no denial of the privilege of being confronted with opposing witnesses, because none were produced by the Department. It was not necessary for the Department officials to discuss the case with the representative of appellees. They had read the comprehensive answer submitted, and, in the light of its contents, had no further questions to ask. No advantage can be taken of the failure of. the Third Assistant personally to see appellees’ representative, because the testimony shows that that official, before reaching a decision, considered the answer submitted, and it fails to show that appellees’ representative desired or offered to make an argument. The testimony of Mr. Heines leads irresistibly to the conclusion, suggested in one of his answers, that his real object in appearing before the Department was to gain further information concerning the attitude ■of the Department toward the publication mentioned in the citation, and not to make an argument before anyone. It is, we think, clear that had he desired a hearing before the Third Assistant, full opportunity would have been given him.

We come now to a determination of the question whether the issues of this publication constitute a periodical within the meaning of the' act of March 3, 1879 (20 Stat. at L. 355, 358, chap. 180), relating to the classification of mail matter. While this question is one of law rather than one of fact and, as such, subject to judicial review, the decision of the Postoffice Department is nevertheless entitled to great weight, and, unless clearly erroneous, ought not to be disturbed. United States ex rel. Reinach v. Cortelyou, 28 App. D. C. 570, 12 L.R.A. (N.S.) 166; Bates & G. Co. v. Payne, 194 U. S. 106, 48 L. ed. 894, 24 Sup. Ct. Rep. 595.

It is admitted that this publication complies with the outward conditions and' characteristics prescribed by law for mailable matter of the second class, the sole contention being that “internally, in substance and in general contents, it does not have the characteristics of said class of mail matter, but is in fact a book, and as such is included in the third class of mail matter as designated by law.” This publication, as its name indicates, is issued weekly and has a circulation of something more than 100,000 copies. Of this number 2,500 are sent to regular subscribers, and the balance to the American News Company, which acts as distributing agent to the various news dealers throughout the country. The publication is about 8 by 11 inches in size, and each issue contains about thirty-two pages, substantially given over to one complete story, the last few pages being devoted to an announcement of the names of those who have made efforts to increase the circulation of the publication, commendatory letters purporting to come from its readers, and a few questions and answers relating, to athletics. It is the'custom of appellees to reissue these stories in book form, two or three stories being taken for a book. While the stories are reprinted for - that purpose, they are not changed in other respects. It is contended by appellees that these stories, while complete in themselves, .deal with the same hero and, for the. most part, are-written by. the same author and form a more or less connected narrative. The testimony,, however, does not ■ fully bear, out this .contention; While it is true that the same hero appears throughout the stories, and that they are mostly written by the same author, it is equally true that each story is a complete piece of fiction, not connected with or in any manner dependent upon any other story. The following stories which appeared in the series will give some idea of the extent to which “the stories run naturally from one to another,” as contended by appellees:

“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 in Gorilla Land.”

“Frank Merriwell’s Magic; or, The Pearl of Tangier.”

“Frank Merriwell in London; or, The Grip of Doom.”

“Frank Merriwell’s Venture; or, Driven from Armenia.”

“Frank Merriwell in India.”

“Frank Merriwell’s Vow; or, After Big Game in Oeylon.”

“Frank Merriwell in Japan; or, The Sign of the Avenger.”

“Frank Merriwell’s Game; or, Snaring the Sharper.”

“Frank Merriwell’s Drift; or, With the Biver Drivers.”

“Frank Merriwell on The Boad.”

“Frank Merriwell’s First Part; or, The Start as an Actor.”

“Frank in Advance; or, The Adventures ahead of the Show.”

“Frank Merriwell’s Own Company; or, Barnstorming in the-Middle West.”

“Frank Merriwell’s New Venture; or, The Finding of Elsie.”

“Frank Merriwell’s Advancement; or, The Engineer of the Mountain Express.” • ‘ ■

“Frank Merriwell Held Up; or, The Bobbery of the Mountain Express.”

“Frank Merriwell as a Ferret; or, The Tracking of the Train Wreckers.”

“Frank Merriwell’s Peril; or, The Smugglers óf the Border.”

The real question in this case is whether the external or the internal characteristics of a given publication shall control in determining the classification of that publication for transmission through the mails, whether a novel is entitled to go through the mails as matter of the second class, because it has been preceded and will be followed by other novels by the same author and relating to the same hero or characters. It is, in effect, contended on behalf of appellees that such was the intent of Congress in defining mailable matter of the second class, but the decision of thé Supreme Court of the United States in Houghton v. Payne, 194 U. S. 88, 48 L. ed. 888, 24 Sup. Ct. Rep. 590, in which said act of March 3, 1879, was carefully reviewed, we think negatives that contention. The court was there dealing with the publications of the “Riverside Literature Series,” which consisted of small books, each book containing a single novel or story, or a collection of poems or stories by the same author, and most, if not all, being reprints of standard works. Each number, however, was complete in itself and entirely disconnected with every other number. The court in its opinion undertook to define in a general way a periodical, which, the court said, “as ordinarily understood, is a priblication 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.” In defining a book the court said: “A book is readily distinguishable from a periodical, not only because it usually has a more substantial binding (although this is by no means essential), but in the fact that it ordinarily contains a story, essay, or poem, or a collection of such, by the same author, although even this is by no-means universal, as books frequently contain articles by different authors.” The opinion concluded as follows: “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.”

If the issues of appellees’ publication were reduced in size so as to correspond in that respect with ordinary novels, would anyone contend that they were not books within the meaning of the law? Manifestly, if a series of stories of the length of each of these stories is a periodical simply because periodically issued and so denominated, a series of stories or novels containing three times as much matter may also pass as periodicals.

Said act of March 3d, 1879, fixed an almost nominal rate of postage on “periodical publications” embracing (sec. 10) “all newspapers and other periodical publications.” While the act prescribes certain requisites of a periodical publication, it stops there, and thus permits the ordinary meaning of the term to govern. Houghton v. Payne, supra. Mail matter is divided into four classes,—the designation of the first, written matter, and of the fourth, merchandise, being free from ambiguity. The second and third overlap and give rise to some uncertainty. The third class includes miscellaneous printed matter, and embraces “books, transient newspapers, and periodicals, circulars, and other matter wholly in print (not included in sec. 12), proof sheets, corrected proof sheets, and manuscript copy accompanying the same.” It is clearly apparent, we think, that Congress, in extending nominal rates of postage to periodical publications, was actuated by a desire to serve the public rather than the publishers. In other words, we think it is apparent that Congress was endeavoring to provide a speedy and inexpensive vehicle of communication among the people, and that, when periodical publications were referred to, it did not have in mind dime novels. Books and publications like the one here involved may well await a less expensive, if less speedy, means of conveyance. There is no need for haste,- and no apparent reason why the mails should be burdened with them.

There is absolutely nothing current in the issues of the publication under consideration. The January numbers would be just as satisfactory to appellees’ patrons if sent in December, and, as above indicated, the one difference between these stories and ordinary novels 'is the size of the publication. We are not able to distinguish the issues of this publication from the ordinary and every-day understanding of the term “book,” and think it apparent that they are not entitled to be transmitted in the mails at second-class rates. We are certainly not prepared to hold that the exercise of the judgment and discretion of the postal authorities should be disturbed.

The decree must be reversed, with costs, and the cause remanded for further proceedings. Reversed.

A motion by the appellees to modify and amend the decree and order of this Court, was granted March 11, 1910, Mr. Chief Justice Shepard delivering the opinion of the Court:

Upon motion of the attorneys for the appellees herein, a decree and order passed in the above entitled cause on the first day of March, A. D. 1910, is hereby amended and modified as follows : That portion of the decree and order directing the cause to be remanded to the lower Court for further proceedings is hereby stricken out, and in place thereof the said decree shall read, “that the bill of complaint in said cause be, and it is hereby, dismissed, and the injunction issued on June 11th, 1909, be, and the same is hereby, dissolved, provided, however, that upon the appellees herein furnishing bond in the sum of $20,000,- to be approved by the Court, the said injunction is to continue in force pending the appeal to the Supreme Court of the United States.”

This decree was submitted by agreement of counsel and is entered as prepared by them.

On application of the appellees an appeal to the Supreme Court of the United States was allowed March 22,-1910.