Henry Houghton v. Henry Payne
| Citation | 194 U.S. 88,48 L.Ed. 888,24 S.Ct. 590 |
| Decision Date | 11 April 1904 |
| Docket Number | No. 372,372 |
| Parties | HENRY O. HOUGHTON, Trustee, et al., Appts. , v. HENRY C. PAYNE, Postmaster General |
| Court | United States Supreme Court |
This was a bill in equity originally filed in the supreme court of the District of Columbia by the firm of Houghton, Miffin, & Co., against the Postmaster General, praying that a certain publication, known as the Riverside Literature Series, be entered and transmitted through the mails as second-class mail matter, and for an injunction to restrain the cancelation of a certain certificate of entry, previously issued, allowing such transmission.
The answer denied that the Riverside Literature Series constituted a periodical within the meaning and intent of the statute; that, although complying with the external characteristics and conditions of second-class mail matter, nevertheless, internally and in substance, they have not the characteristics of second-class matter, but have the peculiarities of books, and are in fact books.
The case was heard upon the pleadings and an exhibit of the series, and a decree rendered in accordance with the prayer of the bill. 31 Wash. L. Rep. 178. An appeal was taken to the court of appeals of the District of Columbia, which reversed the decree of the supreme court, and dismissed the bill. 31 Wash. L. Rep. 390.
This case depends upon the construction of the following sections of the Postoffice appropriation bill of March 3, 1879 (20 Stat. at L. 355, 358, chap. 180, U. S. Comp. Stat. 1901, p. 2646):
'Sec. 7. That mailable matter shall be divided into four classes Messrs. Wm. S. Hall and Holmes Conrad for appellants.
[Argument of Counsel from pages 90-92 intentionally omitted] Messrs. John G. Johnson and Henry H. Glassie for appellee.
[Argument of Counsel from pages 92-93 intentionally omitted] Statement by Mr. Justice Brown:
This case depends upon the construction of the following sections of the Post Office appropriation bill of March 3, 1879, 20 Stat. 355, 358:
"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:
'Provided, That nothing herein contained shall be so construed as to prohibit the insertion in periodicals of advertisements attached permanently to the same.'
'Provided, however, That nothing herein contained shall be so construed as to admit to the second class rate regular publications, designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates.'
And by the act of March 3, 1885 (23 Stat. at L. 385, chap. 342, U. S. Comp. Stat. 1901, p. 2669), it was provided that second-class matter (saving that excepted in § 25) shall, on and after July 1, 1885, be entitled to transmission through the mails at 1 cent a pound or fraction thereof.
Section 17 declared that mail matter of the third class shall embrace books, transient newspapers and periodicals, circulars, etc., and postage shall be paid at the rate of 1 cent for each two ounces or fractional part thereof.
Are the publications of the Riverside Literature Series periodicals, and, therefore, belonging to the second class of mail matter, and entitled to transmission at the rate of 1 cent a pound, or books, as designated in the third class, and subject to postage at the rate of 1 cent for each two ounces?
The publications are small books, 4 1/2 by 7 inches, in paper covers, and are issued from the office of publication either monthly or quarterly, and numbered consecutively. Each number contains a single novel or story, or a collection of short stories or poems by the same author, and most, if not all of them, are reprints of standard works by Thackeray, Whittier, Lowell, Emerson, Irving, or other well-known writers, and from a literary point of view are of a high class. Each number is complete in itself and entirely disconnected with every other number. Upon the front page of the cover appear, at the top, the words 'Issued Monthly,' followed by the number of the serial and the date of issue. Below, the words 'Riverside Literature Series' are prominently displayed, and in the center of the page appears the name of the book. Each number complies with the conditions of § 14, upon which the publication may be admitted to the second class, namely it is regularly issued at stated intervals, at least quarterly, and bears a date of issue, and is consecutively numbered. It is issued from a known office of publication; is formed of printed paper sheets, without board, cloth, or leather, or other substantial binding, and is published for the dissemination of information of a public character; or devoted to literature, etc. The bill also avers that the series has a legitimate list of subscribers, but does not aver that they were reading subscribers in the ordinary sense of the term. This distinction, however, is not pressed by the government. If the fact be that this series becomes a periodical by a compliance with the conditions of § 14, under which it is entitled to be transmitted as second-class mail matter, we shall be compelled to say that the decree of the court below was wrong.
But while § 14 lays down certain conditions requisite to the admission of a publication as mail matter of the second class, it does not define a periodical, or declare that upon compliance with these conditions the publication shall be deemed such. In other words, it defines certain requisites of a periodical, but does not declare that they shall be the only requisites. Under § 10 the publication must be a 'periodical publication,' which means, we think, that it shall not only have the feature of periodicity, but that it shall be a periodical in the ordinary meaning of the term. A periodical is defined by Webster as 'a magazine or other publication which appears at stated or regular intervals,' and by the Century dictionary as 'a publication issued at regular intervals in successive numbers or parts, each of which (properly) contains matter on a variety of topics and no one of which is contemplated as forming a book of itself.' By § 10 newspapers are included within the class of periodical publications, although they are not so regarded in common speech. By far the largest class of periodicals are magazines, which are defined by Webster as 'pamphlets published periodically, containing miscellaneous papers or compositions.' A few other nondescript publications, such as railway guides, ap- pearing at stated intervals, have been treated as periodicals and entitled to the privileges of second-class mail matter. Payne v. United States, 20 App. D. C. 581. Publications other than newspapers and periodicals are treated as miscellaneous printed matter, falling within the third class.
While it may be difficult to draw an exact line of demarkation between periodicals and books, within which latter class the Riverside Literature Series falls, if not a periodical, it is usually, though not always easy to determine within which category it falls, if the character of a particular publication be put in issue.
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. 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. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects.
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,...
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