Esquire v. Walker, Civil Action No. 22822.
Court | United States District Courts. United States District Court (Columbia) |
Citation | 55 F. Supp. 1015 |
Docket Number | Civil Action No. 22822. |
Parties | ESQUIRE, Inc., v. WALKER, Postmaster General. |
Decision Date | 15 July 1944 |
Cravath, DeGersdorff, Swaine & Wood, Bruce Bromley, and John F. Harding, all of New York City, and Hugh Lynch, Jr., Hogan & Hartson, and Howard Boyd, all of Washington, D. C., for plaintiff.
Benedict S. Deinard, of Dept. of Justice, of Washington, D. C., for defendant.
The Postmaster General of the United States revoked the second-class mailing permit of the plaintiff. It seeks to enjoin the enforcement of the order so made. The question is, was the action of the Postmaster General authorized by law? By order of the highest court a rule was long ago announced: "The conclusion of a head of an executive department upon a matter of fact within his jurisdiction will not be disturbed by the courts unless clearly wrong." Burleson case, United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 41 S.Ct. 352, 65 L.Ed. 704. A lengthy hearing was given the plaintiff by the Postmaster General and his chosen aides, the record of which is before us, embracing some 1,865 printed pages. At the conclusion of such hearing, the Postmaster General stated the ground for the action now complained of. This statement was in part as follows:
The Postmaster General is by law charged with the duty of dividing his mail matter into four classes. The law as it now is was written many years ago.
" " `Sec. 14. That the conditions upon which a publication shall be admitted to the second class are as follows:
"" Houghton v. Payne, 194 U.S. 88, 93, 24 S.Ct. 590, 591, 48 L.Ed. 888, Sections 221, 224, 225 and 226, Title 39, U.S.C.A.
Since the law creates the duty of classification and provides that the mail should be placed in four piles, as it were, the defendant must determine to which group a parcel belongs. This determination constitutes him into a fact finding agency and his act is of a quasi-judicial character. It will be seen that Section 225 indeed provides that second class mail may be examined at the office to see if it is subject to a higher rate of postage. This means more than examining the bundle or the wrapper. It means an examination of the contents of the printed matter. Thus, in the Riverside case, styled Houghton v. Payne, 194 U.S. 88, 24 S.Ct. 590, 48 L.Ed. 888, a publisher conceived the idea of sending out to his readers in magazine form the cream of literature. The front page of the magazine met all the conditions of second class mail entitling it on the face of it to the cheap rate accorded such second class mail. The magazine, however, was within itself a complete book. Books are third class mail and although the magazine had been published for a long period, the Postmaster General held that he was not entitled to the cheap rate of second class mail. Again, in what we might call the Music Masters' case, styled Bates & Guild Co. v. Payne, 194 U.S. 106, 24 S. Ct. 595, 48 L.Ed. 894, the publisher conceived the idea of supplying its readers with choice selections of music and doing so in a magazine to be entered as second class mail. It was entitled "Masters in Music." It was issued in 1903. The first issue was devoted to Mozart and contained his portrait and a brief biography, then an essay, followed by thirty-two pages of music. Its front page and its date of issuance was to take the appearance, and make, in fact, a periodical, so far as its regular appearance was concerned, but it was, in fact, a book of music. The Postmaster General ruled that it was not entitled to the cheap rate of second class mail, but should be classed as books, and therefore, received the postal rating of third class mail. The test for the second class mail privilege is: The periodical "must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry." By the word "periodical" is meant that it must be like a newspaper printed at given periods or not less than four times a year.
What was contemplated by the law giving the Postmaster General as his chart and guide in accepting publications for second class mail? The publication must be originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry. There is perhaps no better way to arrive at a man's thoughts than to put oneself in the place of that man to envision as far as possible the things that he saw and the emotions that he felt. What was in the mind of Congress in sending out newspapers and magazines as second class mail matter at a small fraction of the cost of transportation and delivery? Congress had a purpose. And what was the character of the literature that was to receive the benefit of this special treatment? In 1879 the nation was in the midst of what may be known as the Victorian era, not only of the pious, homemaking Victoria, but we were in the shadow of Jefferson, and under the then living influences of men like Lincoln, Lee and William McGuffey. Lincoln had said: "I am not bound to win, but I am bound to be true." Lee had said to his son and to the boys at Washington-Lee University, "Duty is the most sublime word of the English language." These men of '79 who sat in the halls of Congress were boys in the fifty's. They may have listened to William McGuffey, filling the chair of moral philosophy in...
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