Ormond Smith v. Frank Hitchcock No 31 Frank Tousey v. Frank Hitchcock No 32

• Decision Date: 18 November 1912
• Docket Number: Nos. 31 and 32,s. 31 and 32
• Citation: 57 L.Ed. 119,33 S.Ct. 6,226 U.S. 53
• Parties: ORMOND G. SMITH, George C. Smith, and Cora A. Gould, Trading under the Firm Name of Street & Smith, Appts., v. FRANK H. HITCHCOCK Postmaster-General of the United States. NO 31. FRANK TOUSEY, Publisher, a Corporation, Appt., v. FRANK H. HITCHCOCK Postmaster-General of the United States. NO 32
• Court: U.S. Supreme Court

226 U.S. 53

33 S.Ct. 6

57 L.Ed. 119

ORMOND G. SMITH, George C. Smith, and Cora A. Gould, Trading under the Firm Name of Street & Smith, Appts.,

v FRANK H. HITCHCOCK Postmaster-General of the

United States.

NO 31.

FRANK TOUSEY, Publisher, a Corporation, Appt.,

v. FRANK H. HITCHCOCK Postmaster-General of the

United States.

NO 32.

Nos. 31 and 32.

Decided November 18, 1912.

Messrs. J. J. Darlington and H. H. Glassie for appellants.

[Argument of Counsel from pages 54-57 intentionally omitted] Solicitor General Bullitt and former Solicitor General Lehmann for appellee.

Mr. Justice Holmes delivered the opinion of the court:

These are bills to restrain the Postmaster General from revoking orders according second-class mail privileges to the several plaintiffs,—in the first-named case in respect of a series of publications issued under the name of the Tip Top Weekly; in the second, in respect of a similar one entitled Work and Win. The ground of the bills is that the privileges were annulled without granting the hearing required by the act of March 3, 1901, chap. 851, 31 Stat. at L. 1099, 1107, U. S. Comp. Stat. 1901, p. 2655, and that the publications are periodical publications within the meaning of the act of March 3, 1879, chap. 180, §§ 7, 10, 14, 20 Stat. at L. 358, 359, U. S. Comp. Stat. 1901, p. 2646, and therefore must be carried as second-class matter, by the very terms of the law.

We will take up the second question first. The facts are not in dispute and are alike in the two cases. The publications are weekly, each containing a single story complete in itself, but the same character is carried through the series, and the reader is led by announcements to expect further tales after the one before him. Most of the stories are by the same author. The element of sequence may be indicated by a few of the titles in the Tip Top Weekly: Frank Merriwell in Arizona; or, the Mysteries of the Mine. Frank Merriwell's Friend; or, Muriel the Moonshiner. Frank Merriwell's Double; or, Fighting for Life. Frank Merriwell Meshed; or, the Last of the Danites. Frank Merriwell's Magic; or, the Pearl of Tangier. Frank Merriwell in London; or, The Grip of Doom, etc., etc. There is nothing else in a number except a roll of honor or list of some of those who have endeavored to increase the circulation of the series, laudatory letters with insignificant comments, and a page or two of inquiries as to physical culture, purporting to come from readers, with short replies, all more or less incident to the muscular tenor of the tales. The publications measure about 11 by 8 inches on the outside, are said to contain about thirty thousand words, have thirty-two pages, including a page of advertisement, and exclusive of the cover, of which twenty-six are filled by the story. The front cover bears a colored illustration of some incident narrated within.

Thus a question of law is raised, although, as suggested in Bates & G. Co. v. Payne, 194 U. S. 106, 108, 48 L. ed. 894, 895, 24 Sup. Ct. Rep. 595, we should not interfere with the decision of the Postmaster General unless clearly of opinion that it was wrong. Id. 110. American School v. McAnnulty, 187 U. S. 94, 106, 47 L. ed. 90, 95, 23 Sup. Ct. Rep. 33; Public Clearing House v. Coyne, 194 U. S. 497, 509, 48 L. ed. 1092, 1098, 24 Sup. Ct. Rep. 789. We have no such clear opinion, as the decision is pretty nearly if not wholly sustained by Houghton v. Payne, 194 U. S. 88, 48 L. ed. 888, 24 Sup. Ct. Rep. 590, and Smith v. Payne, 194 U. S. 104, 48 L. ed. 893, 24 Sup. Ct. Rep. 595. Indeed, the latter case dealt with The Medal Library, which was a periodical publication of several issues of the Tip Top Weekly, bound together; as the principal plaintiff now puts it, in book form, and it is true, reprinted in a different size and shape. Some attempt was made to reargue the law of the decisions just cited, but we do not feel called upon to reopen the discussion in that part of the appellants' brief.

It must be taken as established that not every series of printed papers published at definite intervals is a periodical publication within the meaning of the law, even if it satisfies the conditions for admission to the second class, set forth in § 14. Houghton v. Payne, 194 U. S. 88, 96, 48 L. ed. 888, 889, 24 Sup. Ct. Rep. 590. It is established by the same authorities that books that are expressly embraced in mail matter of the third class by § 17, and so made liable to a higher rate of postage cannot be removed from that class and brought into the second by the simple device of publishing them in a series at regular intervals of time. It was suggested, to be sure,...