Myrick v. United States

• Decision Date: 06 January 1915
• Docket Number: 1034-1037.
• Citation: 219 F. 1
• Parties: MYRICK v. UNITED STATES (two cases). CUNNINGHAM v. SAME (two cases).
• Court: U.S. Court of Appeals — First Circuit

219 F. 1

MYRICK v. UNITED STATES (two cases).

CUNNINGHAM v. SAME (two cases).

Nos. 1034-1037.

United States Court of Appeals, First Circuit.

January 6, 1915

Edward F. McClennen, of Boston, Mass. (Albert W. Rice and Brandeis Dunbar & Nutter, all of Boston, Mass., on the brief), for plaintiffs in error.

Asa P French, U.S. Atty., and James S. Allen, Jr., Asst. U.S Atty., both of Boston, Mass.

Before PUTNAM, DODGE, and BINGHAM, Circuit Judges.

BINGHAM Circuit Judge.

The plaintiffs in error, hereinafter called the defendants, were jointly indicted in the District Court of the United States for the District of Massachusetts on indictments No. 110 and No. 111, in each of which they were charged with conspiring to commit the misdemeanor denounced by section 223 of the Criminal Code of the United States (Act March 4, 1909, c 321, 35 Stat. 1133 (Comp. St. 1913, Sec. 10393)), which provides as follows:

'Sec. 223. Whoever shall knowingly submit or cause to be submitted, to any postmaster, or to the Post Office Department, or any office of the postal service, any false evidence relative to any publication for the purpose of securing the admission thereof at the second-class rate, for transportation in the mails, shall be fined not more than five hundred dollars.'

The defendant Myrick was president and the defendant Cunningham was subscription manager of the Orange Judd Company, of Springfield, Mass., a corporation publishing the Orange Judd Northwest Farmstead, which, prior to January 1, 1911, was a semimonthly and after that date a weekly. This publication was purchased by the Orange Judd Company, about October 5, 1910; it having been published prior to that time at Brookings, S.D., under the name of Minnesota and Dakota Farmer.

November 30, 1910, the defendant Cunningham filed an application with the postmaster at Springfield to have the publication admitted to the mails at the publishers' second-class postage rate. This application is the subject-matter of indictment No. 110. January 19, 1911, he made another application to the postmaster at Springfield to have the same publication, which in the meantime had become a weekly, admitted at the publishers' second-class rate. This application is the subject-matter of indictment No. 111.

As to each of these applications the indictments respectively charge that the defendants conspired to the end that the defendant Cunningham should knowingly and fraudulently submit to the postmaster at Springfield, and to the Post Office Department of the United States, certain false evidence relative to such publication for the purpose of securing its admission to the Springfield post office at the second-class rate of postage. The specific false evidence alleged in the respective indictments is included in certain answers made to interrogatories on a printed form of application (No. 3501, Edition of 1910), issued by the Post Office Department. In each indictment the overt act alleged is the submission by the defendant Cunningham to the postmaster at Springfield of an application upon the blank referred to, which contained, among other things, the alleged false evidence.

The jury found the defendants guilty on both indictments, and sentences were imposed fining each of them $500 on each indictment.

The cases are now here on the defendants' bill of exceptions, and the errors assigned are to the refusal of the court to grant certain requests for instructions, to the admission of certain evidence, to the argument of the District Attorney and the ruling of the court thereon, and to certain instructions given to the jury.

It is contended in behalf of the defendants that the answers made to the questions submitted in the applications were immaterial, and therefore not false evidence, within the meaning of section 223 of the Criminal Code. Whether or not they are material can be determined only by an examination of the statute of March 3, 1879 (20 Stat. 358), as amended by the Act of March 3, 1885, c. 342, 23 Stat. 387 (Comp. St. 1913, Sec. 7358), relating to mail matter of the second class. The Act of March 3, 1879, c. 180, 20 Stat. 358 (Comp. St. 1913, Sec. 7302), provides:

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

'First, written matter;

'Second, periodical publications;

'Third, miscellaneous printed matter;

'Fourth, merchandise.'

'Sec. 10. (sec. 7304). 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 12 and 14.

'Sec. 11. Publications of the second class except as provided in section 25, when sent by the published thereof, and from the office of publication, including sample copies, or when sent from a news agency to actual subscribers thereto, or to other news agents, shall be entitled to transmission through the mails at one cent a pound, or fraction thereof, such postage to be prepaid, as now provided by law. Act of March 3, 1885 (Comp. St. 1913, Sec. 7358).

'Sec. 12. (sec. 7305). 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.'

'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; 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.'

It thus appears that among the conditions with which a publication must comply in order to entitle it to admission to the second-class privilege at the publishers' rate is that 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 have a legitimate list of subscribers, and that the subscription price must be more than nominal; that, if the publication is designed primarily for advertising purposes, for free circulation, or for circulation at nominal rates, it cannot be admitted at the publishers' rate.

The phrase 'a legitimate list of subscribers' evidently means a list of subscriptions taken at more than a nominal price, and the price must have been paid, or the subscriber, or some one in his behalf, be under obligation to pay the agreed price; and that subscriptions taken at a nominal price, or without price, do not answer the requirements of the statute in this particular and cannot be counted in making up a legitimate list.

While the fact that some subscription contracts may be overdue would not render such subscriptions illegitimate, nevertheless, if it appears as to a substantial number of subscriptions that they are overdue, or that the price paid or agreed to be paid for them is nominal, or that they were paid for by others than the recipients of the publication, or that they were obtained by the payment of large commissions, or in connection with an offer of a premium, prize, or other consideration, such facts would be material evidence for the Post Office Department to consider in determining whether the publication was primarily designed for advertising purposes, for free circulation, or for circulation at nominal rates, so that the entire publication should be excluded from the second-class privilege of one cent a pound.

The Postmaster General has authority to make regulations not inconsistent with the provisions of the act (Rev. St. Sec. 161 (Comp. St. 1913, Sec. 235)). His department has passed regulations that subscriptions to semimonthlies shall not be counted in the legitimate list of subscribers if they are three months in arrears, and that subscriptions to weeklies shall not be counted if they are one year in arrears, but that they may be mailed at the transient rate of one cent for each four ounces, or fraction thereof, prepaid by stamps affixed. It is argued that these regulations are inconsistent with and curtail the rights given by Congress in the statute above set forth, and our attention has been called to cases in which it has been held that the heads of the executive department of the government, even if expressly authorized to make regulations, cannot make any which curtail rights thus given. United States v. Atlanta Journal Co., 210 F. 275, 127 C.C.A. 123; United States v. Symonds, 120 U.S. 46, 49, 7 Sup.Ct. 411, 30 L.Ed. 557; Williamson v. United States, 207 U.S. 425, 461, 462, 28 Sup.Ct. 163, 52 L.Ed. 278; United States v. United Verde Copper Co., 196 U.S. 207, 215, 25 Sup.Ct. 222, 49 L.Ed. 449; Morrill v. Jones, 106 U.S. 466, 467, 1 Sup.Ct. 423, 27 L.Ed. 267.

If the regulations of the Post Office Department above referred to may be said to abridge the rights of...