to be prepaid with stamps affixed on each separately addressed copy or package of unaddressed copies. (Departmental Circular III, issued by Mr. Madden, Dec. 20, 1902.)

It is unlawful for a publisher or news agent to mail, ostensibly for himself and at the rates accorded by law to him, as subscribers' copies or as alleged samples, copies of his publication purchased by and really the property of others, and sent in the mails on their behalf. A publisher is not prevented from acting for a purchaser, but the lawful rate of postage-1 cent for each 4 ounces or fraction thereof-must be paid on all copies so sent in the mails to third persons the same as if they were mailed by the purchaser himself. (Departmental Circular XXV, issued by Mr. Madden, Dec. 16, 1905.)

As appears from the record, no postal officer has prevented the Lewis Publishing Co. from mailing copies of its publications at the cent-a-pound rate where they were legally entitled to be transmitted at that rate, and no unauthorized rates have been assessed against them. But the legal rate of postage of 1 cent for each 4 ounces or fraction thereof has been required on the thousands of copies of the publications of the company which were sent, not to subscribers or as permissible sample copies, and therefore were not entitled to be transmitted at the pound rate. It is complained that the requirement of the transient second-class rate of postage on copies of the Woman's Magazine and the Woman's Farm Journal was in violation of law. The inquiry into these cases, as shown by the reports, disclosed the fact that thousands of copies of the publications were mailed to persons whose subscriptions had expired, and the requirement of the transient second-class rate of postage on the copies sent to such persons was in accordance with the long-established practice of the department and according to law.

The alleged "unauthorized and prohibitive nonpublishers' rate" is that fixed by the act of June 9, 1884, commonly known as the transient second-class rate, of 1 cent for each 4 ounces, or fraction thereof. This rate has been required of the publishing company in cases where copies of the Woman's Magazine and the Woman's Farm Journal, and other publications issued by the company, were found not to be going to actual subscribers, or as permissible sample copies. In April, 1906, after having determined from tests and inquiries that about one-third of the mailings of the Woman's Magazine, and about one-half of the mailings of the Woman's Farm Journal, were illegitimate, the postmaster at St. Louis, acting under instructions from the department, required deposits from the publishing company to cover the transient second-class rate of 1 cent for each 4 ounces on mailings of the two publications in excess of the number of copies which he found the publishing company was legally entitled to mail at the pound rate.

While the transient second-class rate of postage was established for persons "other than publishers and news agents," this does not exempt publishers from becoming liable for the payment of that rate under certain conditions. By compliance with the law they are entitled to mail their publications at the cent-a-pound rate, yet they are limited in that privilege to mailings to regular subscribers and an equal number as sample copies, and any other mailing gives them the status of persons "other than publishers and news agents."

The reason for these limitations will be apparent when it is observed that to accord to publishers of newspapers and periodicals a rate of postage which is denied to others similarly situated, would be a dis

crimination in favor of one part of the public as against another. Publishers, therefore, occupy a dual relation, being entitled to certain postage rates by virtue of holding the second-class mailing authorization, while other mailings may be made by them which are not done in the relation of publishers. In this respect their act is analogous to a public officer who acts, not in virtue, of his office, but in the relation of a private citizen.

This was the construction placed upon the statute by Mr. Madden while Third Assistant Postmaster General, and was the reason underlying his ruling in the Woman's Magazine and the Woman's Farm Journal cases, to wit, that certain mailings were subject to the transient second-class rate of postage. While in office, this rate was required by him in numerous cases, as the letters mentioned below, which bear his signature and which are submitted herewith as Exhibits "I-1" to "I-20," inclusive, clearly show. In each case he held that copies of publications mailed to persons not subscribers, including those whose subscriptions had expired and who, therefore, had ceased to be subscribers, and which were not sent as sample copies within the limits prescribed by the Postal Laws and Regulations, were chargeable with postage at the transient second-class rate of 1 cent for each 4 ounces or fraction thereof. This was the case with respect to the copies of the Woman's Magazine and the Woman's Farm Journal, on which the transient second-class rate was charged. On April 21, 1905, he held in a communication addressed to Mr. J. W. Darrow, Chatham, N. Y., that persons whose subscriptions had expired and had not been either expressly or impliedly renewed could not be regarded as actual subscribers, and that copies of a publication, when mailed to such persons, were subject to postage at the transient second-class rate of 1 cent for each 4 ounces. On May 8, 1905, the postmaster at Trenton, N. J., was similarly informed by Mr. Madden. On the same date he directed the postmaster at Clarksville, Tenn., in connection with the formal authorization for admission of the Clarksville Twice-A-Week Star, to deduct from the deposits made by the publisher an amount sufficient to cover postage at the transient second-class rate on all copies of the publication mailed during the period in question to persons whose subscriptions had expired and had not been renewed. Similar instructions were issued to the postmasters at Chattanooga, Tenn., and New York, N. Y., on May 25, and June 7, 1905, respectively, in connection with the admission of the Southern Educational Review at the former, and the New Music Review and Church Music Review at the latter post office. On December 18, 1905, and January 17, 1906, respectively, the postmasters at Amherst, Va., and Ewing, Ky., were requested to inform publishers at their places that copies of publications sent to persons whose subscriptions had expired and had not been renewed were subject to postage at the transient second-class rate.

The foregoing facts show conclusively that during Mr. Madden's incumbency of the office of Third Assistant Postmaster General it was the practice to require the transient second-class rate of postage in all cases where it was believed such postage had accrued, and his protest at this time, on behalf of the Lewis Publishing Co., that the Post Office Department had no authority to enforce the collection of this rate does not appear to be in harmony with his administrative practices

In the case of Homestead Co. v. Cortelyou, decided April 16, 1906, in the Supreme Court of the District of Columbia, Chief Justice Clabaugh said:

Now it would follow, it seems to me, therefore, if we follow out the purpose and design of the law, that if papers were sent out that were not legitimate in their subscription, and were not sample copies, that these papers would be subject to a different rate. In other words, the transient rate, which would be 1 cent for each 4 ounces or fraction thereof. So I do not think it follows that every paper which is sent out from the publisher is entitled to the second-class rate merely because it has a legitimate list of subscribers and would have the right to send in addition sample copies.

In a decision rendered August 20, 1910, by the circuit court of appeals of the eighth circuit, Judge Hook, giving the opinion of the court, in the case of the Lewis Publishing Co. v. Wyman and Stice, it was held in regard to the postage rate on sample copies mailed in excess of the number provided by Postal Regulations:

It is also contended that, though a general postal regulation has been prescribed making an excess of sample copies evidence that the publication is primarily designed for higher rate on such advertising, etc., there is none authorizing the imposition of

excess while the entry as second-class matter remains in force unrevoked. We think, however, the authority denied by complainant is deducible from sections 436 and 456 of the Postal Laws and Regulations, 1902. (See also sec. 338, Postal Guide, Dec. 1, 1905, p. 1041, and Circular XXV at p. 1045.)

ALLEGATION VII.

That in December, 1905, the post-office inspectors and the postmaster at St. Louis secretly seized and detained in the St. Louis post office thousands of the company's outgoing sealed letters upon which the lawful postage was prepaid; that this action resulted in great injury to the company's business, its public faith, credit, and prestige with advertisers, subscribers, and correspondents; and

It is charged and complained that this holdup of the first-class letter mail was in violation of law; that it was in violation of the Postal Regulations; that it could be for no other purpose than to examine into the contents of the letters, which is believed was done, and which was unlawful.

As shown by the record, on or about the date named a number of letters, in the company's envelopes, deposited for mailing, and believed to be mailed by the officers of the People's United States Bank, were suspected by the postmaster at St. Louis, Mo., as being mailed for fraudulent purposes, and were held by him, under doubt as to their mailability, until the opinion of the Post Office Department could be obtained as to whether such matter should be held, but immediately upon receipt of his communication by the Post Office Department he was advised that such letters were entitled to transmission, the telegram of instructions being as follows:

TO POSTMASTER, St. Louis, Mo.:

If matter deposited by Lewis Publishing Co. is in sealed envelopes there is no authority to withhold it upon supposition that it relates to a fraudulent enterprise. In such case it must be transmitted.

R. P. GOODWIN, Assistant Attorney General.

From this it will be seen that the withholding from the mails of the letters in question was relieved at the earliest possible moment at which the Post Office Department could be informed of it, and it is reasonable to assume that but slight, if any, damage accrued to the publishers as a result of the matter of which complaint is made. There is no evidence of any wrongful intent on the part of the post

master at St. Louis, certainly none as to the department, the incident resulting solely from the postmaster's hesitancy as to his duty in the emergency.

ALLEGATION VIH.

That beginning in the year 1905, and continuing to date, there have been frequently sent out from the Post Office Department, the post office at St. Louis, from many other post offices throughout the country, and from post-office inspectors at St. Louis and elsewhere, a great number of alleged official communications and inquiries, so called, to all or a great part of the subscribers, advertisers, and patrons of the company; that some of these communications called for one kind of information and some for another; that some were to ascertain if the business transactions of the persons addressed with the company were satisfactory: that some asked for signed statements from the persons addressed concerning their dealings with the company; that some asked for the sending in of the communications and papers received from the company;

That many orders were sent out to postmasters directing them to instruct their letter carriers to make a series of verbal inquiries concerning the private business of the persons addressed at the time of making delivery of the company's mail matter to them; that the letter carriers were instructed by their postmasters to record the answers and send them in;

That all these things were done as if necessary or required in the administration of the mail-classification laws and regulations in respect to the Woman's Magazine and the Woman's Farm Journal; that while the company can not state the exact number of the different forms of communications sent out or the different kinds of information called for, or the different papers called for, or the different statements called for, the company has seen some 70 different forms which, more or less, meet the descriptions given;

That for the most part these communications and inquiries seemed to carry in them a threat and, in some cases, did threaten the parties inquired of with some sort of trouble or chastisement by the officials; that the inference to be drawn from all of them, or the most of them, was that officially it was regarded as an improper or reprehensible thing to patronize the company at all; and

It is charged and complained that the making of such inquiries of the company's patrons concerning their business transactions was unnecessary and uncalled for in the orderly and proper administration of the mail-classification laws; that such inquiries were unauthorized by any law; that they were made for the ulterior purpose of intimidation and to create distrust, doubt, and question of the integrity and good faith of the company in its dealings with the public; that it was one of the insidious processes employed by the officials to undermine and destroy the company's business, which depended upon public good will and credit; and that all public money spent in this connection for services of the officials, for paper, for printing, for postage, for traveling, and otherwise was unwarranted by any law.

The allegations in this paragraph of the complaint are of matters appertaining to the mode of procedure of the Post Office Department in the ascertainment of questions of fact for its guidance. The right to make inquiries and investigations is inherent, not only in the Post Office Department but in every other department of the Government, a principle so universally accepted that it was thought to be beyond cavil. The particular mode of inquiry complained of consists of the sending of written inquiries, by post-office inspectors or other postal officers to persons, asking for certain statements of fact. Such procedure has long been followed by the Post Office Department, and as a matter of fact frequently used by Mr. Madden, former Third Assistant Postmaster General. It is not true that such inquiries contain discourteous or threatening language; the fact being that they are, so far as is known to this department, couched in respectful and courteous language, and that they are always so formulated as to leave the person questioned entirely free to answer or refuse to answer. While it is not possible for the Post Office Department to be advised of the exact nature and character of every official communication forwarded by inspectors, nevertheless all officers of the service are

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under strict orders to deal with the public in a seemly and becoming manner, and but few instances of failure in this particular have been brought to the attention of the department, and these have been the subject of reprimand or chastisement.

ALLEGATION IX.

That on March 4, 1907, without notice whatever, and without a hearing as required by law, all copies of the company's Woman's Magazine and Woman's Farm Journal were summarily denied the mails at publishers' second-class rates, and the third-class rate was assessed against them; that this action closed down the presses and stopped the publishing business completely; that this action, with what had gone before, completed the wrecking of the company's business, public faith, and credit, since it forced it to default on officially admitted over 800,000 subscription contracts, and on all of its advertising contracts; that this act discredited the company and its publications for all future time; that notwithstanding the publications were restored to their place in the mails and at publishers' rates about nine months after this complete close-down, and the company made great effort to revive them and restore its business prestige and spent enormous amounts of money in that undertaking, it was nevertheless obliged, because of the effect of all that has been recited, to abandon the work of rehabilitation and did so on October 10, 1910, finding restoration of public confidence beyond the possible, the Government blight having reached to the remotest corners of the land; and

It is charged and complained that this act was immoral and lawless; that it was unwarranted by any circumstances whatsoever; that in some part it was the Postmaster General's personal penalty inflicted upon the company for having offended him by publishing severe criticisms of his previous official acts; that it was a wanton disregard of property rights; that it violated the constitutional guaranty of the liberty of the press; that with what had gone before it completed the wrecking and the closing up of the company's business and injured and damaged an honorable, law-abiding enterprise greatly in excess of a million dollars.

The statements in this allegation, in so far as they relate to the motive of official action, as disclosed by the record, are not believed to be true, the fact being that in the case of the Woman's Magazine, as has already been stated, the publishers were not entitled to a formal hearing on the matters involved, it never having been fully admitted to the second-class privilege, this fact having been affirmed by the courts (Exhibit C-2), but, notwithstanding this, two distinct hearings have been accorded both it and the Woman's Farm Journal, namely, the hearing under regular citation before the Third Assistant Postmaster General on June 17, 1905, a description of which has already been given, and another before the same officer under formal citation, dated April 19, 1906, a copy of which is submitted herewith, marked "Exhibit K," held on the 30th day of April and the 1st day of May, 1906, at which the publishers appeared, both in person and by counsel, and were permitted to submit evidence in support of their contentions and in rebuttal of the position of the department to make argument by counsel, and were otherwise fully heard.

The citation issued by the Third Assistant Postmaster General on April 19, 1906, was under the instructions given by Postmaster General Cortelyou on April 14, 1906, in a letter reading as follows:

OFFICE OF THE POSTMASTER GENERAL, Washington, D. C., April 14, 1906. SIR: The letter of E. G. Lewis and the accompanying statement of the Lewis Publishing Co., both of which are dated April 7 and inclosed herewith, have been transmitted to the Post Office Department by Hon. Jesse Overstreet, Member of Congress, to whom they are addressed.

It will be seen that in his letter Mr. Lewis complains that the postmaster at St. Louis has required the Lewis Publishing Co. to deposit with him an amount sufficient to