Dell Publishing Co. v. Summerfield, Civ. A. No. 2502-60.

• Decision Date: 28 October 1961
• Docket Number: Civ. A. No. 2502-60.
• Citation: 198 F. Supp. 843
• Parties: DELL PUBLISHING CO., Inc., Plaintiff, v. Arthur J. SUMMERFIELD, Postmaster General, Defendant.
• Court: U.S. District Court — District of Columbia

198 F. Supp. 843

DELL PUBLISHING CO., Inc., Plaintiff, v. Arthur J. SUMMERFIELD, Postmaster General, Defendant.

Civ. A. No. 2502-60.

United States District Court District of Columbia.

October 28, 1961.

William I. Denning, Washington, D. C., for plaintiff.

Sylvia A. Bacon, Asst. U. S. Atty., for defendant.

HOLTZOFF, District Judge.

This is an action for a declaratory judgment and an injunction against the Postmaster General to set aside his order revoking second-class mail privileges of certain publications issued by the plaintiff. The matter is now before the Court on cross motions for summary judgment. Necessarily, both sides, by making such motions, concede that there is no material question of fact but that the matter should be determined as a question of law.

Section 224 of Title 39 of the United States Code^* provides that mailable matter of the second-class shall embrace all newspapers and other periodical publications which are issued at stated intervals and as frequently as four times a year and are within the conditions named in Sections 225 and 226 of this Title.^** The term "periodical" is not defined in the statute. It is a matter of common knowledge that mailable matter of the second-class is charged a much smaller amount for its carriage through the mails than is mailable matter of other classes.

The publications involved in this case are paper bound pamphlets containing crossword puzzles with blanks for their solutions. These pamphlets are issued bi-monthly. The Postmaster General held that they are not periodicals within the meaning of the statute, and it is contended by the plaintiff that his ruling to that effect is arbitrary and capricious.

The question to be determined by this Court is a narrow one, namely, whether the ruling of the Postmaster General that these pamphlets are not periodicals within the meaning of the statute is arbitrary or capricious in the legal sense. The words "arbitrary and capricious" are not used in their opprobrious or popular meaning but in the technical sense as having no rational basis.

The Supreme Court has defined the term "periodical" in connection with this statute. In Houghton v. Payne, 194 U.S. 88, 97, 24 S.Ct. 590, 592, 48 L.Ed. 888, it was stated:

"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 or some special branch of learning or to a special class of subjects."

In that case it was held that a series of pamphlets issued at periodic intervals by well-known publishers, each containing an independent and separate literary work, the entire series known as Riverside Literature series, were not periodicals within the meaning of the statute and that the Postmaster General was justified in declining to extend second-class privileges to those publications.

In Smith v. Hitchcock, 226 U.S. 53, 59, 33 S.Ct. 6, 8, 57 L.Ed. 119, Mr. Justice Holmes stated:

"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."

In that case the Postmaster General had revoked second-class privileges for publications which were issued weekly, each containing a single story complete in itself, with the same character being carried through the series....