Esquire v. Walker, Civil Action No. 22822.

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtBenedict S. Deinard, of Dept. of Justice, of Washington, D. C., for defendant
Citation55 F. Supp. 1015
Decision Date15 July 1944
Docket NumberCivil Action No. 22822.
PartiesESQUIRE, Inc., v. WALKER, Postmaster General.

55 F. Supp. 1015

ESQUIRE, Inc.,
v.
WALKER, Postmaster General.

Civil Action No. 22822.

District Court of the United States for the District of Columbia.

July 15, 1944.


55 F. Supp. 1016

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.

DAVIDSON, Justice.

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

55 F. Supp. 1017
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

"Order No. 23459

"This is a proceeding under the act of March 3, 1901 relating to the second-class mailing privileges accorded to the publication `Esquire' and its publisher. * * *

"In view of this voluminous record, at the onset it may be well to clarify and state just what is the issue in this proceeding. This is a proceeding involving the use of the second-class mailing privileges. Consequently, there is not involved the question of nonmailability as first, third or fourth-class mail matter nor of the right of freedom of speech, or of the freedom of the press. * * *

"Does the publication fail to comply with the Fourth condition of the Act of March 3, 1879, section 14 (20 Stat. 359; 39 U.S.C. 226 39 U.S.C.A. § 226) and thus not being originated and published for the dissemination of information of a public character, or devoted to literature, the sciences, arts or some special industry, is not entitled to second-class mailing privileges. * * *

"This is essentially a judicial matter of deep significance, and the Postmaster General should not be hesitant in exposing these conditions to the critical public eye. Nor should he be reluctant to determine the matter in such a way that all phases of it may be fully considered and decided by a court of competent jurisdiction where every right and interest of the publication, the government, and the public may be fully protected. * * *

"Writings and pictures may be indecent, vulgar, and risque and still not be obscene in a technical sense. Such writings and pictures may be in that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proof that they are morally improper and not for the public welfare and the public good. When such writings and pictures occur in isolated instances their dangerous tendencies and malignant qualities may be considered of lesser importance.

"When, however, they become a dominate and systematic feature they most certainly cannot be said to be for the public good, and a publication which uses them in that manner is not making the `special contribution to the public welfare' which Congress intended by the Fourth condition. * * *

"The editor of this publication admits that from its origin `our humor and our articles and our fiction all stressed a man alone angle—you might call it a stag party type of treatment', (3) and testified `we called it the smoking room type of humor'. (4) He stated that as part of its editorial policy it runs `cartoons that do feature sex'. (5) Its featured pictures are stated to be `frankly published for the entertainment they afford'. * * *

"I cannot assume that Congress ever intended to endow this publication with an indirect subsidy and permit it to receive at the hands of the government a preference in postal charges of approximately $500,000 per annum. (11) * * *"

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. 7. That mailable matter shall be divided into four classes:

"`First, Written matter;

"`Second, Periodical publications;

"`Third, Miscellaneous printed matter;

"`Fourth, Merchandise.'

"Matter of the second class is thus described:

"`Sec. 10. 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 twelve and fourteen. * * *

"`Sec. 12. That matter of the second class may be examined at the office of mailing, and if found to contain matter which is subject to a higher rate of postage, such matter shall be charged with postage at the rate to which the inclosed matter is subject: Provided, That nothing herein contained shall be so construed as to prohibit the insertion in periodicals of advertisements attached permanently to the same.'

55 F. Supp. 1018

"`Sec. 14. That the conditions upon which a publication shall be admitted to the second class are as follows:

"`First. It must regularly be issued at stated intervals, as frequently as four times a year, and bear a date of issue, and be numbered consecutively.

"`Second. It must be issued from a known office of publication.

"`Third. It must be formed of printed paper sheets, without board, cloth, leather, or other substantial binding, such as distinguish printed books for preservation from periodical publications.

"`Fourth. It 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, and having a legitimate list of subscribers.'" 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...

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2 practice notes
  • Sierra Club v. United States Postal Service, No. C-71-1840 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 1, 1973
    ...by the courts unless clearly wrong. Bates and Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894; Esquire, Inc. v. Walker, 55 F.Supp. 1015 (D.D.C.1944), reversed on other grounds 80 U.S.App.D.C. 145, 151 F.2d 49, affirmed Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L......
  • Hannegan v. Esquire, No. 399
    • United States
    • United States Supreme Court
    • February 4, 1946
    ...Magazine was obscene or was for any other reason nonmailable.5 The District Court denied the injunction and dismissed the complaint. 55 F.Supp. 1015. The Court of Appeals reversed. 151 F.2d 49. The case is here on a petition for a writ of certiorari which we granted because of the importanc......
2 cases
  • Sierra Club v. United States Postal Service, No. C-71-1840 SW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • November 1, 1973
    ...by the courts unless clearly wrong. Bates and Guild Co. v. Payne, 194 U.S. 106, 24 S.Ct. 595, 48 L.Ed. 894; Esquire, Inc. v. Walker, 55 F.Supp. 1015 (D.D.C.1944), reversed on other grounds 80 U.S.App.D.C. 145, 151 F.2d 49, affirmed Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L......
  • Hannegan v. Esquire, No. 399
    • United States
    • United States Supreme Court
    • February 4, 1946
    ...Magazine was obscene or was for any other reason nonmailable.5 The District Court denied the injunction and dismissed the complaint. 55 F.Supp. 1015. The Court of Appeals reversed. 151 F.2d 49. The case is here on a petition for a writ of certiorari which we granted because of the importanc......

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