ILLINOIS UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN PRODUCTION NOTE University of Illinois at Urbana-Champaign Library Brittle Books Project, 2015.COPYRIGHT NOTIFICATION In Public Domain. Published prior to 1923. This digital copy was made from the printed version held by the University of Illinois at Urbana-Champaign. It was made in compliance with copyright law. Prepared for the Brittle Books Project, Main Library, University of Illinois at Urbana-Champaign by Northern Micrographics Brookhaven Bindery La Crosse, Wisconsin 2015THE MISSIONARY HERALD AND Postal Decisions. Decisio?is of the Post Office Department and the Attorney General of the United States, Respecting Magazines. 1878-1879. BOSTON: PRINTED AT REQUEST OF PUBLISHERS. 1879.3*2,3Jc •4- AMERICAN BOARD OF COMMISSIONERS FOR FOREIGN MISSIONS. CHARLES HUTCHINS, General Business Agent. Office of the Missionary Herald, /Vo. i Somerset Street, Boston, May /, /$79. To Periodical Publishers:—- It has fallen to the lot of the Missionary Herald, during the last few months, to test and settle two important questions of interest to publishers of quarterly and monthly magazines. I. The right of a magazine to be mailed to subscribers in the city where published (with carrier delivery) through a news agent outside the city, at pound rates. By the provisions of Section 99 a monthly weighing just over two ounces pays $240 postage on a thousand copies per year to subscribers in the city where published, if mailed by the publisher, against about $45 at pound rates ($30 under the new law) to any other part of the country, or by an outside news agent into the same city. The Herald was several times ruled against by the Post Office Department, but established its claim by an appeal to the Attorney General of the United States. II. The right of publishers to paste or stitch into a magazine a printed slip bearing upon the business of the publication. The Herald had a slip in the January number, 1879, which was ruled a " violation of law" by the Post Master at New York, whose ruling was twice confirmed by the First Assistant Post Master General's Department at Washington. An appeal in person to the Post Master General, and a full examination of the case by him and by the Assistant Attorney General for the4 Post Office Department, resulted in an entire reversal of these decisions, and the complete vindication of the claim of the Missionary Herald. Several publishers have asked that a condensed statement of these cases, together with the final decision upon the two, which will hereafter be precedents, may be printed for their informa- tion, and for reference. In response to this request, the following condensed state- ment of the two cases has been prepared. The final decisions are given in full. The two cases involved a great amount of labor. If the results have insured to publishers, to any extent, justice in postal administration, the undertaking has not been in vain. CHARLES HUTCHINS, General Business Agent, A. B. C. F. M,IE MISSIONARY HERALD A1 POSTAL DECISIONS. First Case. THE RIGHT OF A MONTHLY MAGAZINE TO BE MAILED TO SUB- SCRIBERS IN THE CITY WHERE PUBLISHED (WITH CARRIER DELIVERY) THROUGH A NEWS AGENT OUTSIDE THE CITY, AT POUND RATES. The substance of the several papers which passed between the parties mailing and the Post Office Department is given in the order of their dates. I. The monthly issue of the Missionary Herald for Boston, Chelsea, Cambridge, Brookline and Somerville (all but Brook- line within the Boston carrier district) was sold, under a written contract, to a news agent in Brookline. Date of contract, Sept; II, 1878. 1 II. Notice of the aforesaid contract of sale having been officially given the Boston Post Office, the Post Master referred the case to the Post Office Department at Washington for in- structions, and for a decision as to the right of the news agent to mail at the pound rate. Date of letter, Sept. 21, 1878. . III. During the correspondence the October and November numbers of the magazine were mailed by the news agent at the Brookline Post Office, at the pound rate, and were delivered by carriers to subscribers in the cities of the Boston district. IV. A decision was rendered by the First Assistant Post Master General, adverse to the right of the news agent to mail to Boston subscribers at pound rate. The decision is based on the provisions of the following, from the postal laws :6 [Some words are printed in italics for convenience of reference.] Act of June 8, 1872 (Sec. 3,872 of Revised Statutes):—■ " Sec. 99. That the rate of postage on newspapers, except- ing weeklies, periodicals not exceeding two ounces in weight, and circulars, when the same are deposited in a letter-carrier office for delivery by the office or its carriers, shall be uniform at one cent each ; periodicals weighing more than two ounces shall be subject to a postage of two cents each, and these rates shall be prepaid by stamps." Act of June 23, 1874: — "Sec. 5. That on and after the 1st day of January,41875, on all newspaper and periodical publications mailed from a known office of publication or news agency, and addressed to regular subscribers or news agents y postage shall be charged at the fol- lowing rates: On newspapers and periodical publications, issued weekly and oftener, two cents a pound or fraction thereof; less frequently, three cents a pound or fraction thereof." In addition to the two sections of law, the following argu- ment is used in the decision: "The plan proposed by the publisher of the periodical named would result in the substitution of the pound rates for the local and higher rates, and in a consequent diminution of the revenue from this source. " If the publishers of the Herald can avail themselves of a news agency just outside of Boston to carry out their plan, then they could avail themselves of any news agency in the country, however remote; and if one publisher can evade the local rates in this manner, then every other publisher in the eighty-seven letter-carrier cities can do the same thing, and thereby render the law fixing local rates inoperative." Date of decision, Dec. 26, 1878. V. The following letter was received from the Post Master at Boston: Boston, October 12, 1878. Sir : Having been advised by the Post Master at Brookline, Mass., that a quantity of the Missionary Herald was mailed at7 his office on the- 26th ultimo, at pound rate of postage, by a news agent, I have to request that you inform me, in writing, at your earliest convenience, under what circumstances said pub- lication was so mailed, and especially reply to the following questions ; Was it mailed to subscribers in this city? Was it mailed by the agent for the publisher of the Herald, or was it bought by him and mailed to subscribers in this city? Respectfully yours, E. S. Tobey, Post Master. Charles Hutchins, Esq., Publisher of the Missionary Herald, Boston, Mass. VI. In answer to the foregoing communication, it was stated that the copies mailed by the news agent were his property. The following is from the answer: His purchase commenced with and included the October number, which he mailed at Brookline. By the letter of the law (Sec. 99 and Sec. 5), and by its spirit also, a news agent residing and doing news agency busi- ness outside of a letter-carrier district, may purchase and mail newspapers and periodicals to any post-office address within the United States, all letter-carrier offices included, at pound rates. Will you do me the favor to forward a copy of this letter to the Post Master General, at Washington, allowing me to make the request of him that the case may be considered again in the light of the foregoing facts ? As the news agent had no occasion to anticipate embarrass- ment in the matter of mailing, and as the Board is deeply inter- ested in his success in increasing the circulation of its publica- tion, it feels morally obligated to protect him and itself, so far as protection may be assured by statement of facts and by legiti- mate argument based on the facts and the law. Very truly yours, Charles Hutchins, General Business Agent. This communication, in full, was referred to the Department, with request that the former decision might be reviewed by the Post Master General. Date of letter, October 29, 1878.8 VII. The Post Master General gave a decision adverse to the right of the news agent to mail at pound rates. The decision is based on sections 99 and 5 (see page 6 of this pam- phlet) and on the following ruling, printed in the Postal Guide, October, 1877: (Postal Guide, October, 1877.) "Newspapers sent by mail to subscribers, must be mailed at? the post office nearest the office of publication in order to pass at the pound rates." There are ten decisions bearing definitely on this subject. The only one of the ten that does not recognize the right of news agents to mail at pound rates is the one quoted. The other nine, several of them rendered during the present admin- istration, all explicitly state that news agents have the same rights in mailing as publishers. Some of the following are from preceding rulings of the same year, and one is as late as July, 1878: (P. G., April, 1877.) " News agents are entitled to the same privileges as are allowed publishers in mailing newspapers and periodicals to regular subscribers." • (P. G., July, 1877.) " The pound rates apply solely to publica- tions sent from a known office of publication or news agency, to regulaf subscribers or news agents." (P. G., July, 1878.) " A news dealer may mail publications in which he deals, to regular subscribers, at the pound rates, upon his furnishing the Post Master with the list required." Date of Decision of Post Master General, November 4, 1878. VIII. The following is, with some abridgment, a communi- cation addressed to the Post Master General, and referred by him to the Attorney General of the United States. It was accompanied by a copy of the contract of sale, in full, and also by copies of all the previous correspondence respecting the case : The law bearing upon this case is., I think, contained in the two following sections, and the principal decisions, or rulings, rendered by the Post Office Department, under the law, and9 now in force, so far as they have come under my notice, are the following. They are given in the order of time, as found in the numbers of the "United States Official Postal Guide:" Postal Law respecting Newspapers and Periodicals. [Some words are printed in italics for convenience of reference.] Act of June 8, 1872 (Sec. 3,872 of Revised Statutes) : — " Sec. 99. That the rate of postage on newspapers, except- ing weeklies, periodicals not exceeding two ounces in weight, and circulars, when the same are deposited in a letter-carrier • office for delivery by the office or its carriers, shall be uniform at one cent each; periodicals weighing more than two ounces shall be a subject to a postage of two cents each, and these rates shall be prepaid by stamps." Act of June 23, 1874: — "Sec. 5. That on and after the 1st day of January, 1875, on. all newspaper and periodical publications mailed from a known office of publication or news agency, and addressed to regular subscribers or news agents, postage shall be charged at the fol- lowing rates: On newspapers and periodical publications, issued weekly and oftener, two cents a pound or fraction theroof; less frequently, three cents a pound or fraction thereof." , Rulings- on the Postal Law, respecting the Right of News Agents to Mail Newspapers and Periodicals to Regular Subscribers. 1. (Postal Guide,. July, 1875.) News dealers have the right under Sec. 5, Act of June 23, 1874, to mail newspapers and periodicals to regular subscribers at pound rates. 2. (P. G., October, 1875.) The pound rates apply solely to " newspapers and periodical publications sent from a known office of publication or news agency, and addressed to regular subscribers or news agents." See Sec. 5, Act June 23, 1874. 3. (P. G., January, 1876.) The rate of postage on monthly newspapers " mailed from a known office of publication or nemos agency, and addressed to regular subscribers or news agents," is three cents per pound or fraction thereof.IO 4. (P. G., January, 1877.) The Post Office Department rules, under Section 5, Act of June 23, 1874 (see any copy of U. S. O. P. G.), that newspapers and periodicals, sent by mail to sub- scribers, shall be mailed at the post office nearest to the office of publication or news agency, from which they are sent. 5. The pound rates apply solely to newspapers and periodical publications sent from a known office of publication or news agency, and addressed to regular subscribers or news agents: and in order to avail itself of the pound rates, a publication must be mailed at the post office nearest the office of publica- tion or from a news agency. 6. (P. G., April, 1877.) News agents are entitled to the same privileges as are allowed publishers in mailing newspapers and periodicals to regular subscribers. 7. (P. G., July, 1877.) The pound rates apply solely to pub- lications sent from a known office of publication or news agency, to regular subscribers or news agents. 8. (P. G., October, 1877.) Newspapers sent by mail to sub- scribers, must be mailed at the post office nearest the office of publication in order to pass at the pound rates. 9. (P. G., January, 1878.) Newspapers, to be entitled to transmission in the mails to regular subscribers at the pound rates, must be mailed at the post office nearest the office at which they claim to be printed, in- whole or in part, and pub- lished, or a news agency. 10. (P. G., July, 1878.) A news dealer may mail publications in which he deals, to regular subscribers, at the pound rates, upon his furnishing the Post Master with the list required. The decision of Sept. 26 seems to be based on the supposition that the copies of the Missionary Herald which are mailed from Brookline to Boston, are owned in Boston and sent by the publisher to Brookline for mailing, which is not the fact. The ruling of the Post Master General, Nov. 4, 1878, refers only to mailing by the publishers of periodicals from office of publication, and does not include news agents, as does the law, and as previous and subsequent rulings do. The ruling quoted reads as follows:11 (P. G., October, 1877.) Newspapers sent by mail to sub- scribers, must be mailed at the post office nearest the office of publication in order to pass at the pound rates. Had the ruling been intended to cover the rights of news agents, a fuller text would have been quoted. The preceding ruling (Postal Guide, July, 1877), and the first succeeding ruling (Postal Guide, January, 1878), both give the same rights to news agents as to publishers. Nor are these rights left in any doubt, as matters of inference only. They are contained in direct statements, as follows: (Postal Guide, July, 1875.) News dealers have the right under Sec. 5, Act of June 23, 1874, to mail newspapers and periodi- cals to regular subscribers at pound rates. (P. G., April, 1877.) News agents are entitled to the same privileges as are allowed publishers in mailing newspapers and periodicals to regular subscribers. (P. G., July, 1878.) A news dealer may mail publications in which he deals, to regular subscribers, at the pound rates, upon his furnishing the Post Master with the list required. It will be borne in mind that the real point in question is not the right of the publishing agent of the Missio?iary Herald to mail from Brookline. It is the question of the right of a news agent to purchase and mail any legitimate newspaper or periodical from the Brookline post office, situated outside the Boston free delivery district, to any other post office in the United States. Such right is claimed under the law, — aright which has been exercised for many years; by news agents in all parts of the country. According to the ruling quoted in the decision of November 4th, all the news dealers in the United States who deal in news- papers and periodicals published in New York city, for example, if they desire to send copies of the same to subscribers, by mail, must return them to the New York post office for mailing. The law does not discriminate as to the towns or cities to12 which a news agent may send periodicals by mail at pound rates, whether they shall be near or remote. Is there anything in the law, or in any legitimate ruling, by virtue of which this news agent is allowed to mail the Mis- sionary Herald from Brookline to Georgetown or Alexandria (not letter-carrier offices), at pound rates, and would not be allowed to mail to the letter-carrier offices of Washington or New York ? If he may mail to Washington or New York at pound rates, is there any provision in the law, or in legitimate rulings, to prevent his mailing at pound rates from Brookline to Boston ? The following illustration may throw some light upon these questions : A leading news dealer near New York city contracts with members of Congress and with officers and employees of the various departments, to furnish them such monthly periodicals as they may severally desire, on such terms as seem advan- tageous to them and to him. He contracts with the various publishers for a given supply for the year, including the Wash- ington list, and he mails all from near New York. It is in the contract that during such portions of the year as any of the subscribers are 'absent from Washington, their copies shall be sent to such post offices as they may designate. Supposing some of these subscribers should be located for a few weeks or months in the cities (letter-carrier) where certain of the periodicals to which they have subscribed are published. Is there anything in the law, or in legitimate rulings, to restrain this newsdealer from serving these subscribers in these cities, including New York city, at pound rates? Or supposing a considerable number of these subscriptions should include the Missionary Herald, and the subscribers should spend the summer months in or near Boston, can this news agent mail the Missionary Herald to Boston to these subscribers at pound . rates ? If so, may not a news agent in Brookline, Mass., assume13 and fulfil the same contract ? If so, what provision of law, or what legitimate rulings on the law, restrain said news agent at Brookline from purchasing copies of the Missionary Herald, and friailing the same to subscribers outside or within the city of Boston, or its letter-carrier district, at pound rates ? It is not a question whether news agents are accustomed to make contracts on such conditions, or whether the whole num- ber of copies of any periodical, for a given city, or for the city of publication, have been so purchased and mailed from outside the city, nor is it a question as to what the law might provide, or should provide. It is simply a question as to what the present postal laws do provide. The news agent's place of business and of residence are in Brookline, and it is convenient and presumably profitable for him to handle any publication of large circulation near his place of business. His subscription list covers the town of his resi- dence and the large cities adjacent, including Boston. It is presutned that the ruling which limits publishers to the post office nearest their office of publication, would require a news agent to mail from the office nearest his place of news agency business. If so, this news agent can mail from no office but Brookline. If he cannot serve Boston subscribers through the Brookline post office, he cannot serve them at all. The question, practical to him is, whether he can mail to his subscribers under existing laws. If not; he asks that he may be furnished the citations of the law, or the legitimate rulings on the same, by which he is restrained. This case is one purely of law, or of decisions based on the law. It is one of much interest, not only to the parties imme- diately concerned, but to others. I trust that the Post Master General will afford the case a full examination, in the light of all the facts, and with a careful examination of the law, and it is hoped that the right, as claimed, will be fully sustained. Should the decision be otherwise, it is respectfully requested14 that the case may be referred to the Attorney General, together with this paper and the accompanying papers, with request that he will give a decision upon the law as related to this case. The date of this communication is November 20, 1878. IX. Opinion of the Attorney General of the United States. Department of Justice, Washington, December ig, i8yg. Hon. David M. Key, Post Master General Sir : In answer to your letter of the 4th inst, in regard to the postage to be charged in the case of the Missionary Herald when mailed at the post office in Brookline to subscribers in Boston, I have the honor to reply: The facts appear to be as follows : The publication office of this paper is in Boston. A news dealer in Brookline, which is outside the Boston post office, is the owner of the subscription list of the paper as to Boston and the adjacent towns, by pur- chase. All copies of the paper belonging to subscribers in Boston are sent to him at Brookline, and the distribution takes place under his immediate direction. The inquiry is, whether such papers are to be mailed at pound rates, as claimed by the news agent, or whether they are to be charged individually at the rate of one cent a copy ? The 5th section of the Act of June 23, 1874, declares : "That on and after the first day of January, eighteen hundred and sev- enty-five, all newspapers and periodical publications mailed from a known office of publication or news agency, and addressed to regular subscribers or news agents, postage shall be charged at the following rates: On newspapers and periodical publications, issued weekly and more frequently than once a week, two cents for each pound or fraction thereof, and on those issued less fre- quently than once a week, three cents for each pound or fraction thereof." The Missionary Herald is a paper which is published less often than once a week. It is further provided by Section 3,872 of the Revised Stat- utes : " The rate of postage on newspapers, excepting weeklies, periodicals not exceeding two ounces in weight, and circulars,i5 when the same are deposited in a letter-carrier office for delivery by the office or its carriers, shall be uniform at one cent each." These two provisions of law are to be construed together. To a certain extent the Section of the Revised Statutes limits the effect of the Act, and must be considered as providing that where newspapers are deposited in an office within the same post-office district within which the subscribers live, they are to be charged at the rate of one cent a copy. This is the appro- priate meaning, in this connection, of the words "letter-carrier's office." If, therefore, the Herald were mailed at the Boston post office for delivery to subscribers in Boston, one cent post- age would have to be paid. It appears, however, by the facts as presented, that although the actual office of publication is in Boston, the person who owns the right to supply subscribers in that city resides outside of the same and has the copies sent to him for distribution. If he does this, there is no suggestion that it is not done in good faithr or that there is a pretence of ownership or purchase merely, or that the news agent is simply an agent of the pub- lishers. Without considering what the law might be in such a case, as the case now presented makes the news agent the actual owner of the subscriptions in Boston, and the towns around that city, the papers being' sent to him at Brookline, his place of business, and mailed by him from there to subscribers in other postal districts, the mere fact that the paper is actually printed and published and sent to him outside of the Boston post-office dis- trict does not seem to me to present any reason why the publi- cation may not be distributed by him at pound rates. I answer, as you suggest, with promptness, in order that, if you should deem this condition of the law one that requires attention from Congress, you may act accordingly. Very respectfully, your obt. servt., (Signed) Chas. Devens^ Attorney General. X. The Post Masters at Brookline and Boston received instructions from the Post Office Department, in accordance with the foregoing opinion, to mail and deliver the Missionary Herald at the pound rate of postage.i6 Second Case. THE RIGHT QF PUBLISHERS TO PASTE OR STITCH INTO A MAG- ' AZINE A PRINTED SLIP BEARING UPON THE BUSINESS OF THE PUBLICATION. The correspondence in this case is given in whole, or in sub- stance. I. No. i Somerset St., Boston, Mass., Dec. jo, 1878. Hon. Thomas L. James, Post Master, New York. Many subscribers to the Missionary Herald in New York city, write me : That the cover of their January number has been defaced at the New York post office ; that they are charged six cents postage on this number, in addition to the legal prepaid postage. Upon copies which have been returned to me I find stamped, " Inclosure in violation of law." " Due 6." Will you have the kindness to inform me what pro- vision of the postal laws has been violated ? Very truly yours, Charles Hutchins, Gen. Business Agt. A. B. C. F. M. II. New York, December ji, 1878 Charles Hutchins, Esq., General Business Agent. Sir : I am in receipt of your favor of the 30th inst., and in reply to your inquiry I call your attention to "Ruling 17 in U. S. O. P. Guide, No. 12," which says, "Printed slips or circulars stitched or pasted in with the body of periodicals or magazines, are attempts to evade the law, subjecting the whole copy with which it is sought to be incorporated to postage at the rate for printed matter of the third class." I also call attention to Ruling 20, Guide No. 4, and various others, but particularly to Ruling 20, U. S. O. P. Guide, No. 12, which says, " There is no law providing for inclosures in maga- zines or periodicals sent to regular subscribers." I inclose a refused copy, and you will find next the front cover the inclosure, which is printed matter on one side, and on the reverse it is a "printed blank" subject to one cent per ounce, which amount is doubled because not prepaid. Very respectfully, H. G. Pearson, Asst. Post Master.iy Note. The full text of the Rulings referred to in the foregoing communication will be found in the communication to the Post Master General, page 23. By care- ful comparison, it will be noticed that an important omission occurred in the quo- tation of Ruling 17 by the New York office. III. A communication, similar to that presented to the Post Master General (see page 22), was addressed to the Post Master at New York, asking for a review of the ruling of the Assistant Post Master. As most of this communication is embodied in that to the Department (page 22), the following extracts only are given here: Hon. Thomas L. James, Post Master, New York. Sir: I have the favor of the Assistant Post Master, of 31st ult., in answer to my communication of the previous day to the Post Master, in regard to the defacing of the January number of the Missionary Herald to subscribers in New York city, by stamping on them the words, " Inclosure in violation of law," "Due 6," and your collection of six cents postage on each copy, in addition to the full prepaid legal postage. You quote Ruling 17, Guide 12, as follows: "Printed slips or circulars stitched or pasted in with the body of periodicals or magazines, are attempts to evade the law." I do not understand why you omitted, in your quotation, the words, " with which they have no legitimate connection? The sentence in the official ruling from which you quote, reads as follows: "Printed slips or circu- lars, stitched or pasted in with the body of periodicals or maga- zines, with which they have no legitimate connection, are attempts to evade the law." You will see that the condition which I underscore, and which you omit, is important, and, on a careful reading of the whole, I think it will strike you, as it did me, as singular that the particular omission should have been made. The pages have "legitimate connection" with the magazine, and a very important connection. In conclusion, I ask your attention to the following ruling, which Vas rendered in December, 1875, on a case similar to the one now under consideration, and which was referred to the Department, in consequence of a ruling in the New York Post Office:i-8 Ruling of Hon. James W. Marshall, First Assistant Post Master General, on the Penn Monthlyy December 14, 1875 : " Printed matter stitched into the body of a magazine, and having reference to the business of its publishers, is held to be an integral part thereof,!" ... I ask that the whole matter may be reviewed by the Post Master, in person, and that I may have early notice of his decision. I cannot but trust that the ruling already rendered will be modified or annulled. In case of such a result, I trust it is not unreasonable to expect a return of postage to the sub- scribers* in New York city, and such note of explanation from the Post Master as shall relieve the American Board from the odium implied in the official notice stamped upon the sev- eral numbers of the magazine, u Inclosure in violation of law!' I will send a printed list of subscribers, if desired. Charles Hutchins, Gen. Business Agt. A. B. C. F. M. Boston, yanuary <2, i8jq. IV. January 3d the Post Master, at New York referred the case to the Department at Washington, but he did not send the foregoing communication of January 2d, from the office of the Missionary Herald. V. The following is from the ruling of the First Assistant Post Master General, in answer to the communication from the Post Master at New York. It is dated January 10, 1879: "Objection is made to the paper marked A.' (the printed slip) being added to a publication of the second class, the same being a f printed blank,' for which the specific rate of one cent per ounce, or fraction thereof, applies, it also being in violation of the regulations governing 'inserts,' as printed in the U. S. O. P. Guide. " But it is not claimed that a genuine publication of the second class should be excluded from the benefits of the pound rates sim- ply because it contains an advertisement in the shape of a printed blank, either printed in its columns or on an advertising page, bound in and numbered as required, [The last paragraph is printed in italics for convenience in reference.]19 VI. As there seemed to be ground for doubt as to the bear- ing and intent of the foregoing ruling, a communication was addressed to the Post Master at Boston, asking his judgment as to the purport of the same. The following is from the com- munication, which contained a full statement of the case. The portions omitted here will be found, in substance, in the com- munication to the Post Master General, page 22. Boston, January 21, i8yg. Hon. E. S. Tobey, Post Master, Boston. Sir: I have received, through the Post Master at New York, a ruling from the Post Office Department, Washington, dated January 10, 1879, respecting a printed "slip" which was printed with the January number of the Missionary Herald\ having reference to the business of its publishers, and stitched and bound with the body of the Magazine. ' I have given the ruling careful reading and much study, but I am unable to determine whether it prohibits or allows the use of such " slips." I have submitted the ruling to several gentlemen of eminent business and legal ability — some of them with large experience in postal matters and in postal decisions — and the uniform judgment is that the ruling reverses the decision of the New York Post Office, given December 31, 1878, which rated the magazine at double third-class rates, and that it sustains the publishers in mailing at the pound rates, the publication being very properly considered by the Department as a " genuine pub- lication of the second class," it being the oldest monthly maga- zine on the American Continent, and one of the largest in mail circulation. ' As the case, however, does not seem entirely clear, and as there is a sincere desire not to violate the law, but to comply with it, both in spirit and to the letter, and as you have doubt- less received a copy of the ruling of the Department, Boston being the mailing office of the monthly, I respectfully ask your judgment upon the intent of the ruling. Very truly yours, Charles Hutchins, Gen. Business Agt. A. B. C. F. M.20 VII. The foregoing communication was referred by the Post Master at Boston to the Department at Washington. Boston, January 22, i8yg. First Assistant Post Master General, Washington. I herewith transmit a communication addressed to me by Mr. Charles Hutchins, Agent of " The American Board of Commis- sioners for Foreign Missions," and publisher of the periodical entitled the Missionary Herald, which is the official organ of the American Board of Commissioners for Foreign Missions. This Board are evidently desirous of knowing their rights un- der the law, and ask for all the privileges to which they are justly entitled. They do not intend to be captious, nor have they any purpose to evade the law. As the full ruling in this case has not reached me direct, I have not ventured to give an answer to their com- munication, preferring to submit it to you for the careful con- sideration which the subject ^evidently demands. The copies of the Missionary Herald referred to were mailed at this office to alleged bona fide and regular subscribers, at pound rates, and in accordance with ruling in the case of the Penn Monthly magazine, made under the present law. This case is so nearly analogous to many others that a clear legal decision now asked for is especially desirable, that it may be applied to all similar cases. I am, very respectfully, yours, E. S. Tobey, Post Master. VIII. The following is in answer to the foregoing communi- cation : Post Office Department. Office of the First Assistant Post Master General. Washington, D. C., January 25, 18jg. Charles Hutchins, Esq., Boston, Mass. Sir: In reply to your letter of the 21st to Hon. E. S. Tobey, Post Master at Boston, which has been referred to this office for decision, I have to advise you as follows : The slip enclosed in the January number of the Missionary Herald is regarded by this Department as a printed blank, and subject under the classification made by the Assistant Attorney General for this Department, rendered necessary by Sec. 152 I of the Act of July 12th, 1876, which practically divided third- class matter into two subdivisions, to a postage rate of one cent for each ounce, or fraction thereof. Second-class matter, under the law, containing any article of the third class, is subject to postage for that class; if the matter of the third class is in the nature of a prospectus or handbill it subjects the package to the rate for such, to wit: one cent for each two ounces, or fraction thereof; if in the nature of a printed blank, to one cent an ounce, as such matter belongs to the second division. The ruling of Hon. James W. Marshall, First' Assistant Post Master General, to which you refer in the case of the Penn Monthly, is of date December 14th, 1875, and is modified and, to the extent indicated in the ruling, displaced by the ruling No. 17, Postal Guide, July, 1877. The printed slip enclosed in the January number of the Mis- sionary Herald is clearly within the spirit and letter of that ruling, as matter having no legitimate connection with the pub- lication, and hence extraneous matter. A printed slip, the only object of which in the publication is that it maybe torn out and used for the purpose of a return communication, forms no integral part of the magazine. Of .course, if the contents of the slip should be embraced in the regular columns or pages of a magazine, or publication, the De- partment could not object to it, as it then becomes a part of the make-up of such publication. In conclusion, the Department holds that the action of the New York office in charging one cent an ounce on the numbers of the Missionary Herald reaching it for delivery was correct. The action of the Boston office in forwarding the same at the pound rates was erroneous. Very respectfully, E. C. Fowler, For First Asst. P. M. General. IX. The case was argued by the undersigned February 7, 1879, before the Post Master General, and also before Judge A. A. Freeman, Assistant Attorney General for the Post Office Department, the following communication being used as the basis of argument: i22 Hon. David M. Key, Post Master General, Washington, D. C. Sir: The recent rulings in the post office, New York City, December 31st, and in the office of the First Assistant Post Master General, Washington, January 10th, and January 25 th, respecting a printed leaf or "slip" in the January number of the Missionary Herald, seem to me to do injustice to the American Board of Commissioners for Foreign Missions, whose property the magazine is. As the general business agent of the Board, I respectfully ask that the case may be reviewed by the Post Master General, or by the Judges of the law depart- ment of the Post Office Department. I cannot but believe that a careful-examination of. the case will lead to a modification or reversal of the decisions already rendered. The case is an im- portant one, affecting not only this periodical but all magazines. The facts in the case are as follows: The Missionary Herald is the oldest American monthly magazine, and has a very large mail circulation to bona fide subscribers, extending to every State and Territory and to many foreign countries. As its business manager, I have frequently bound a special page or more, of full size or less, or a small " slip," within the first cover, calling special attention to the business of the maga- zine. Such practice has never before been called in question at any office, nor has the present case, except in New York City. The January number, 1879, contained two small pages, or a " slip," printed with the magazine, paged with the advertising pages, the matter pertaining wholly to the business of the maga- zine, and stitched and bound with it. The entire edition was mailed at pound rates at the Boston post office. An official letter of the Post Master to the Depart- ment, dated January 22d, states that "The copies of the Herald referred to were mailed at this office to alleged bona fide and regular subscribers, at pound rates, and in accordance with ruling in the case of the Penrv Monthly magazine, made under thz present law."2 3 The copies distributed from the New York office were marked " Inclosure in Violatioii of law" "Due 6," which amount was col- lected in addition to the prepaid pound rates. The justification oi: this official decision and notice is based, in an official com- munication to me, upon the following rulings of- the Depart- ment, and upon the fact that a part of one page is denominated a |" printed blank." I , POSTAL GUIDE NO. 4, JULY, 1875. 11. Ruling 20. Post Masters must examine all second-class matter presented to them for mailing, and if it is found that any pointed matter is inclosed therein which may be subject to a higher rate of postage, such as engravings, chromos, handbills, posters, prospectuses, special advertisements, or any matter ex- cept a genuine supplement, as defined in the U. S. O. P. G., or bills and receipts for subscriptions, they should not receive it injto the mails unless prepaid at the rate of one cent for each oi[mce or fraction thereof, by stamps affixed to each package to oijie address. POSTAL GUIDE NO. 12, JULY, 1877. 4. Ruling 20. There is no law providing for inclosures in magazines or periodicals sent to regular subscribers. Ruling No. 17, Postal Guide, July, 1877, is also quoted by the New York office, but with the very important omission of the words, " with which they have no legitimate connection." As quoted, the ruling is made to read as follows : " Printed slips or circulars, stitched or pasted in with the body of periodicals or m-.agazines, are attempts to evade the law, subjecting the whole copy with which it is thus sought to be incorporated to postage at the rate for printed matter of the third class." The full text of the ruling is as follows. I have placed one clause of the portion omitted in New York ruling, in italics, for convenience of reference: POSTAL GUIDE NO. 12, JULY, 1877. 2. Ruling 17. The Post Office Department holds that pointed slips or circulars, stitched or pasted in with the body of periodicals or magazines, with which they have no legitimate24 cojinection, are attempts to evade the law, and all such matter which does not form, and was not intended, or originally printed to form, a regular part of the contents of any given number of, a periodical or magazine and its cover, must be considered as ex- traneous matter, subjecting the whole copy with which it is thus sought to be incorporated to postage at the rate for printed mattter of the third class. Unless such advertisements a,re printed at the same office, on paper of the same size, and regu- larly paged with other sheets of the publication, third-class rates of postage must be prepaid thereon. By a careful reading of the three rulings quoted in the New York office, it will be seen that none of them bear at all upon this case. Ruling 20, July, 1875, and Ruling 20, July, 1877, relate wholly to loose matter, not bound in, as " chromos, hand- bills, posters, bills and receipts for subscription," etc., etc. Ruling 17, July, 1877, deals with circulars, slips, small pam- phlets, etc., which are constantly offered in bulk to magazin'e publishers, by venders of various classes of goods, or by in- surance and other- agencies, to be stitched in with the regular advertising pages. Ruling 17 states that such attempts are " attempts to evade the law." The only way such things can be admitted is by being printed and paged with the regular adver- tising sheets of the magazine. The inevitable inference from the clause, " with which thew have no legitimate connection," in this ruling is, that matter which has "legitimate connection," and which is printed witlp. and bound into the magazine, is, in fact and in law, a part of th^ same, whatever be the size of the page and whether paged or not, the conditions of paging, size of page, etc,, applying only t

e found on the last page of the cover." In comparison with, or rather in contrast to, the foregoing ruling, I call special attention to the following from another ruling by the s^me gentleman, January 10, 1879: [See page 18.;] " But it is not claimed that a genuine publication of the second class should be excluded from the benefits of the pound rate:s simply because it contains an advertisement in the shape of & printed blank, either printed in its columns or on an advertising page, bound in and numbered as required." In conclusion, I do not need to remind the Department a;t Washington, that a rnling, unlike a regulation, has no legal force except in so far as it is based upon and sustained by the law,. j[ will ask that' in answer to this communication, if it should b(p necessary to quote or refer to rulings, the sections of the stat- utes upon which they depend may be quoted or cited. ' This case is one of great interest to the American Board of Commissioners for Foreign Missions, whose magazine the Mis- sionary Herald is, affecting not only the business, but the honor of the Board as well, before its large and honored constituency in New York City, whose copies were stamped " Inclosure in,- Violation of law," "Due 6." The American Board has! occasion to transact postal business with many parts of the; world, and its officers are not aware that they have ever violated29 the postal laws of any country. In the-hope and confidence that this case will not ultimately be found an exception, careful attention is requested to this communication, and an early answer is respectfully asked. Very truly yours, Charles Hutchins, Gen. Business Agt. A. B. C. F. M. X. Opinion of the Assistant Attorney General for the Post Office Department, and Decision of the Post Master General: Office of the Assistant Attorney General for the Post Office Department Washington, D. C., February 10, i8jq. Sir: I have made careful examination of the matter submit- ted to me by you on the 6th instant, respecting a ruling of the First Assistant Post Master General, upon a decision of the New York office, in the case of the January number of the Missionary Herald, a regular publication published at Boston, Mass., and entitled to be transmitted in the mails at the rate of three cents for each pound or fraction thereof, and cannot resist the conclusion that both the decision of the New York office, and the ruling of the First Assistant Post Master General thereon, were erroneous. The facts in the case are as follows: The January number, of the Missionary Herald contained a printed "slip," bound into or attached to the first cover of the magazine, calling attention on the one side to certain mat- ter to be found on the last page of the cover, and in ad- dition, to a blank printed on its reverse side, which blank was as follows : THE MISSIONARY HERALD. — Subscription price, including prepaid postage, $1.10. • For statement concerning persons entitled to the Herald, free, see first page of this number. Please fill one of the following blanks, and enclose to Charles Hutchins, No. i Somerset Street, Boit^n Mass. 1. I am entitled to receive the Herald free for 1879. Please address as below: Name. | Post Office. j State. ' 2. I desire to receive the Herald ats a paying subscriber, and enclose pay to the close of 1879 $1.10, Name. I Post Office. I State.3o The January number of the magazine, with this slip thus bound in, was offered for mailing at the office where the publica- tion office is located, to wit: Boston, Mass., and was mailed therefrom to its subscribers in various portions of the country at the pound rates of postage, to wit: three cents per pound; and seems to have reached the various offices of destination, and to have been delivered to the persons to whom addressed, without extra charge, except at the office at New York, where the Post Master refused to deliver it, without the payment of six cents additional on each copy thereof. The action of the New York office was based upon the follow- ing rulings of the Department, to wit: 1. Ruling 20. Post Masters must examine all second-class matter presented to them for mailing, and if it be found that any printed matter is inclosed therein which may be subject to a higher rate of postage, such as engravings, chromos, handbills, posters, prospectuses, special advertisements, or any matter ex- cept a genuine supplement, as defined in the U. S. O. P. G., or bills and receipts for subscriptions, they should not receive it into the mails unless prepaid at the rate of one cent for each ounce or fraction thereof, by stamps affixed to each package to one address. (Postal Guide, No. 4, July, 1875.) 2. Ruling 17. The Post Office Department holds that printed slips or circulars, stitched or pasted in with the body of periodi- cals or magazines, zvith which they have no legitimate connection, are attempts to evade the law; and all such matter which does not form, and was not intended or originally printed to form, a regular part of the contents of any given number of a periodical or magazine and its cover, must be considered as extraneous matter, subjecting the whole copy wTith which it is thus sought to be incorporated to postage at the rate for printed matter of the third class. Unless such advertisements are printed at the same office, on paper of the same size, and regularly paged with other sheets of the publication, third-class rates of postage must be prepaid thereon. (Postal Guide No. 12, July, 1877.) Without calling in question the correctness of these rulings of the Department, I think they have no application in this case. The inference to be drawn from Ruling No. 17, of July, 1877, will not be disputed, I apprehend, that printed slips or circulars3i stitched or pasted in with the body of periodicals or magazines, with which they have legitimate connection, form an integral part thereof, within the scope and purpose of the ruling of the First Assistant Post Master General in the case of the Penn Monthly under date of December 14, 1875. That ruling is as follows : "Printed matter stitched into the body of a magazine and having reference to the business of its publishers, is held to be an integral part thereof." There is nothing in the Act (of July 12, 1876, section 15) which has been quoted as sustaining the action of the First As- sistant Post Master General, which in any manner supercedes or modifies the ruling above quoted. Hence it is of full force and effect. I am," therefore, of opinion that copies of the Missionary Herald, delivered from the office at New York city, should have been delivered to subscribers without the extra charge. Very respectfully, A. A. Freeman, Ass't Att'y Gen'l Post Office Department Hon. D. M. Key, Post Master General. The decision of the Assistant Attorney General in the abbve case is approved, and the ruling of the First Assist- ant Post Master General, of date of January 25, 1879, is reversed. D. M\ KEY, Post Master GeneralThis book is a preservation facsimile produced for the University of Illinois, Urbana-Champaign. It is made in compliance with copyright law and produced on acid-free archival 60# book weight paper which meets the requirements of ANSI/NISO Z39.48-1992 (permanence of paper). Preservation facsimile printing and binding by Northern Micrographics Brookhaven Bindery La Crosse, Wisconsin 2015