At this point I desire to direct special attention to the uniform rule of the department in cases of application for reentry of a publication on change of known office of publication, frequency of issue, or other temporary or technical change, namely, that in such cases the requirement of the deposit of third-class postage is waived in all cases where there is no objection to the publication, and no inquiry or investigation concerning it is pending; and that, in all cases, where doubt exists as to the safety of the postal revenues, or where an inquiry of any character is pending, or for any reason the department believes that loss of postage might result from such waiver, it is invariably denied.

The two applications of the Lewis Publishing Co. for the reentry of its publication on change of frequency of issue were dealt with, in each instance, in exact accordance with this rule, that is, in the case of the application previously referred to, there was no existing objections to the publication, and, therefore, the deposit was waived; while in the case of the present appilcation, as will be seen, there were objections, as well as a pending inquiry, and, for that reason, the requirement of deposit of thirdclass postage could not properly be waived.

The objections to the Woman's National Daily, and to its claimed subscription list, and the grounds upon which they were based when the application for reentry was filed on March 21, 1911, may be grouped under three heads:

(1) Reports from many postmasters throughout the country of large numbers of copies of the Woman's National Daily being received at their offices and being undelivered because of the fact that the addressees could not be found, or of their refusal to receive the publication, and of the failure of the publishers to discontinue the sending of the paper when notified.

(2) The making of a ratio query test of the subscription list by selecting at random. from the publishers' mailing list, a large number of claimed subscribers and ascertaining the condition of their subscription, and considering whether the result was not representative of the condition of the entire list.

(3) The admission by the publishers of the making of gift subscriptions by solicitors in such large numbers as, if not accepted by the alleged subscribers, to raise the question of "free circulation."

UNDELIVERABLE COPIES.

Under section 679, Postal Laws and Regulations, it is made the duty of postmasters to notify publishers when copies of their publications received at their offices can not, for any reason, be delivered to the addressees. No person who refuses to receive a publication can lawfully be regarded as a subscriber thereto. For some time prior to the time of the filing of the application for reentry of their publication on March 21, 1911, by the Lewis Publishing Co. the Post Office Department had been receiving large numbers of complaints from postmasters in different portions of the United States to the effect that a great many copies of the Woman's National Daily were being received at their offices, addressed to persons to whom they could not be delivered, and that they had repeatedly given notice to that effect to the publishers, and that no attention had been paid to their communications. In proof of this fact, and illustrative of the disregard of the manner in which this publication was being sent to different portions of the country, extracts from the letters of postmasters, invoking the assistance of the department to relieve them of this condition, are given. As the refused portion of the subscription list to the publication could, in no view of the case, be considered as legitimate, it was rightfully held to be one of the reasons why the deposit of third-class postage could not be waived.

The postmaster at Battle Creek, Mich., informed the department that he had notified the publishers of the refusal of the publication by 14 persons at his office, adding:

"We have never succeeded in getting a paper stopped on one request, and the above list comprises those who have been sent in weekly since the fore part of January (five weeks) and were still coming at the end of last week."

The postmaster at Biddeford, Me., forwarded the labels of 18 copies received at his office, addressed to persons who stated that they had not subscribed for the publication, nor had they authorized any other person to subscribe for them.

The postmaster at Wheeling, W. Va., in reporting the number of undeliverable copies at that office, adds that no attention whatever has been paid to his requests for discontinuance.

The postmaster at Oak Park, Ill., states that he has, without avail, three times requested the publishers to discontinue the sending of undeliverable copies to his office.

The postmaster at Hamilton, Mo., reports that the publishers pay no attention to his notices of undeliverable copies and requests for discontinuances.

The postmaster at Sioux City, Iowa, reports that he has notified the publishers four times, on different dates, to discontinue the sending of a number of undeliverable copies, and that he had prior thereto mailed many card notices to the same effect, and that no attention has been paid to them.

The postmaster at Lawrence, Kans., after repeated efforts to secure the discontinuance of undeliverable copies at his office, invokes the assistance of the department.

The postmaster at Sioux City, Iowa, the second time reports the receipt of undeliverable copies after repeated notices to the publishers to discontinue them, adding that

"Card notices have been sent almost daily for the month of June."

The postmaster at Adrian, Minn., in reporting the receipt of a large number of undeliverable copies at his office, says:

"None of these people subscribed for, and many refuse to take it out of the office. They are not marked 'Sample copy.' I think the whole Northwest is flooded with

them. The price is $1 per year. Who pays for it? Does anybody?"

The postmaster at Los Angeles, Cal., incloses a list of the addresses of 132 refused copies of the paper, and states that

"Refused' cards have been frequently issued by this office on these copies, but no attention seems to be paid to these notifications. This office solicits the assistance of your department in securing the discontinuance of the receipt of these copies here.” Under date of September 7, 1910, the deputy postmaster general of Canada reported that although repeatedly notified the publishers failed to discontinue undeliverable copies addressed to persons at Williamstown, New Brunswick.

The postmaster at Holyoke, Mass., reporting the failure of the publishers to pay any attention to his frequent notices to discontinue the sending of undeliverable copies, says:

"I have been informed by several people who are patrons of this office and who receive the paper daily that they have never subscribed for the paper and do not know why it is sent to them."

The postmaster at Elkhart, Ind., says:

"The paper is coming regularly to a large number of patrons of this office, and upon investigation I find that they are not legitimate subscribers.”

A report from the Medford branch of the post office at Boston, Mass., in reporting undeliverable copies, says:

"These are samples of many other similar cases of which notices have been sent repeatedly to this publication, but no apparent attention is given them."

The postmaster at Oxford, Ohio, referring to notices of undeliverable copies, says: "The addressee has been out of delivery more than six months, and the publishers have been repeatedly notified of her change of address.”

The postmaster at Pleasantville, N. Y., invokes the assistance of the Post Office Department in securing the discontinuance of undeliverable copies received at his office.

The postmaster at Demopolis, Ala., informs the department that a number of copies of the publication are undeliverable at his office, and that the alleged subscribers had no idea by whom, or for what purpose, the publication is sent to them.

The postmaster at Palatka, Fla., on February 22, 1911, in requesting the assistance of the department to have the publishers discontinue the sending of undeliverable copies, states that one of the addressees

"has been gone for over two years, and that the other has been dead for about three years.'

In a communication dated February 9, 1911, the postmaster at Warrenton, Va., states:

"The subscription to this paper seems to be increasing from time to time, and I am positive without being subscribed to by those receiving it. A number of copies have been refused and the publisher has been notified, and only in a few cases has this been regarded by the publishers, if at all. I am not sure whether or not it is a violation to flood the market with a paper that is not subscribed to, and thought, perhaps, it is a matter that might be worth investigating."

The postmaster at Joliet, Ill., reported that the publishers persist in sending undeliverable copies to 13 persons at his office, notwithstanding his official notices that the copies were refused.

The postmaster at Glencoe, Ill., in a letter dated March 7, 1911, in the light of his experience as postmaster, regards the publishers' practice as an imposition upon the service.

With his letter of March 10, 1911, the postmaster at Fort Wayne, Ind., sends the addressed labels from 19 copies of the paper received at his office which he could not deliver, principally for the reason that they had been refused.

From persons not connected with the postal service numerous complaints have been received to the effect that notifications to discontinue the publication were ignored by the publishers. From these the following is quoted:

The LEWIS PUBLISHING CO.,

FOREST GROVE, OREG., January 17, 1910.

University City, St. Louis, Mo.

GENTLEMEN: Your card, bearing date of December 27, 1909, and stating that a subscription in my name to the Woman's National Daily has been "paid in advance by a Mrs. H. Marnach," was forwarded to me some time ago from North Yamhill, Oreg., my former address, but I have been too busy to notice the matter before.

Permit me to say that I do not know the person whom you name and never before heard of her existence. I do not stand for any act that she may make in my name, and I have no use for your publications.

I send your card and a copy of this letter to the postal authorities at Washington. CHAS. F. TORRANCE.

To the POSTMASTER GENERAL,

Washington, D. C.

SIR: The above and the inclosure are self-explanatory, and may, perhaps, be of interest to your department. Such liberties by publishers should be checked.

CHAS. F. TORRANCE.

The foregoing are merely a few specimens of the sundry and divers complaints, coming from postmasters everywhere, as well as from private individuals, complaining of the continuance by the publishers of mailing undeliverable copies, causing an increase of work by the post-office officials, as well as much worry and annoyance to the public, and of citizens who complain of having the publication imposed upon them without an opportunity to know by whom, or for what cause, and whether they desire it or not, leaving them, in many instances, in doubt as to whether they shall or shall not be held for payment for subscriptions to it.

THE SUBSCRIPTION TEST.

The act of March 3, 1879, by which the cent-a-pound rate of postage was authorized, provides that, in order to be entitled to that privilege, a newspaper or other periodical publication

"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 will thus be seen that under the law the second-class mail privilege is limited to newspapers and other periodical publications, and only to such of these as are published for the dissemination of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and that, in addition to the possession of these characteristics, such publications must possess a "legitimate list of subscribers," and must not be "designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

Since this nominal rate of postage was provided for newspapers and periodicals with a view of the promotion of popular intelligence and in aid of general public information, it is plain that Congress in its establishment intended to confer upon certain publications a favored rate of postage, and that, being a grant of privilege, its benefits were intended for those publications only which, as judged from their character and quality, are clearly entitled to it; and the Postmaster General is charged with the duty of protecting the Government against the use of this privilege by publications which are not entitled to it and which do not possess the characteristics required by law, including a "legitimate list of subscribers"; and with the further duty of seeing that such publications do not come within the prohibitions which the Congress has established. A "legitimate list of subscribers' to a newspaper or periodical publication, as defined by the Post Office Department, as well as by the courts, is a list of such persons as have subscribed therefor, either by themselves or by some other person on their behalf, and who have paid for it a substantial sum as compared with the advertised subscription price; and there may also be included among the list so described and defined, news agents, newsboys, purchasers of copies over the counter, publishers of

second-class mail publications receiving exchanges, one copy for another, advertisers receiving copies in proof of insertion of their advertisements, and the donees of a limited number of bona fide gift copies, when given for the benefit of such donees and accepted by them. Furthermore, there may be included among the legitimate list of subscribers, those subscribing in bulk: that is, ordering large numbers of the publication with the request that they be sent by the publisher to such persons as they may name, the copies being sent for the conveyance of public information and not for advertising purposes, provided such persons accept the publication and agree to become subscribers, but the number of subscribers of this character must always be limited in their relation to the aggregate subscription list by the consideration of whether they are so numerous as to bring the publication within the prohibition of the statute which provides:

"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."

The Supreme Court of the State of Iowa, in the case of Ashton v. Story (96 Iowa Reports, p. 201; Lawyers' Reports Annotated, vol. 30, p. 584), in which the definition of a subscriber to a newspaper was directly involved, in the determination of a matter at issue, said:

"To become a subscriber to a newspaper includes some voluntary act on the part of the subscriber, or something which is in effect an assent by him to the use of his name as a subscriber. A person to whom a paper is sent without his knowledge or consent, either expressed or implied, is not a 'subscriber' within the meaning of the law."

Hon. James N. Tyner, Assistant Attorney General for the Post Office Department, in an opinion rendered January 10, 1890, in the case of a publication then pending before the Post Office Department on the question of admission to the second-class mail privilege, defined a legitimate list of subscribers" in the following language: "The department has laid down a rule that I hold to be a good one, to the effect that 'the list of legitimate subscribers to entitle a publication to entry as second-class mail matter must be composed of those persons only who themselves make and pay their subscriptions.' In the case at bar this is not the fact; the subscriptions being a donation by certain publishers to their customers, and paid for by said publishers by advertising the paper in the publications they represent. In view of this fact * ** I do not see how the subscription list can be recognized as legitimate *

*

On January 8, 1872, Judge Sherman, of the United States Circuit Court for the Sixth Circuit, in an opinion overruling a motion in arrest of judgment in United States v. Harper, discussed in volume 1 of the Opinions of the Assistant Attorney General for the Post Office Department, page 22, defines and construes the term "bona fide and regular subscribers" in the following language:

"I would not wish to be understood as holding that the terms employed by the act, to wit, bona fide and regular subscribers,' were to be construed so strictly as only to embrace persons who by their own hand have made subscriptions; but it is quite plain that no one can be a subcsriber unless he has subscriber himself or by some authorized agent, or has subsequently in some sufficient way ratified the subscription which may have been volunteered for him. If follows that the sending of newspapers without prepayment of postage to persons who have not subscribed themselves, nor by any authorized agent, or not subsequently ratified it, is not a sending to subscribers."

In commenting upon this decision, Hon. T. A. Spence, Assistant Attorney General for the Post Office Department, says:

"Until such ratification (by the donce) as in a case like the present, the parties addressed could not be regarded as subscribers; and the sending of papers to them as such, the postage unpaid, would be a violation of the section, as we have already seen. It was with a view of determining whether the subscription list of the Woman's National Daily was legitimate or illegitimate, as has just been described, that a representative test of 3,000 names, selected at random from its mailing list, was made by the department, resulting in the statement by 24 per cent of those who made replies to the queries sent to them that they were not subscribers to the publication. While it is not claimed that this test is absolutely correct, arithmetically speaking, yet it is a method of inquiry that has long been used by the department and has been found to be so approximately correct that both the publishers and the department have used it as a safe basis for conducting an inquiry for the correction of faulty subscription lists and the elimination by the publishers of such as were not legitimate.

The results of this test were so strongly corroborated by the reports of undeliverable copies herein before described, and by the admission of the publishers of the Woman's National Daily of so large a per cent of gift copies, without any evidence whatever of their acceptance by the claimed subscribers, that it was not felt that, in justice to the

postal revenues, the subscription list of the Woman's National Daily should longer go unchallenged; hence the efforts of the department to secure its correction by the publishers or the application of the transient second-class rate of postage to that portion of it which should be found to be illegitimate.

On the completion of this test the following communication was sent to the publishers of the Woman's National Daily, through the postmaster at St. Louis, Mo.:

POSTMASTER, St. Louis, Mo.

WASHINGTON, February 24, 1911.

SIR: In the case of the application for readmission of the Woman's National Daily to the second class of mail matter at your office, made under the provisions of section 443, Postal Laws and Regulations, on account of a change in the frequency of issue of the paper, you are informed that since it appeared that the evidence upon which the publishers relied in making the statements in the application regarding the circulation of the publication was of such a character as to require a large amount of time and labor to make a thorough examination and classification thereof, and since it also appeared that by reason of an apparent confusion in the use of subscription blanks by those sending in subscriptions, it could not be determined positively whether some subscriptions were sent through members of the American Woman's League as agents or whether members of the league themselves paid for the subscriptions, it was decided to test the subscription list.

Accordingly about 3,000 names and addresses were taken at random from the publisher's subscription cards by a special agent of the department and queries were sent to these persons, with the result that 24 per cent of those who say they are receiving the publication state that they are not subscribers thereto. This 24 per cent consists of 11 per cent who state that they are not subscribers, and appear to be at a loss to understand why the publication is sent to them, and 13 per cent who state that they are not subscribers, but that their subscriptions were paid for by others. As the "legitimate list of subscribers' required by law for the publication must obviously be legitimate in its entirety, this office is unable, with the information now before it, to take favorable action on the application.

In this connection it is deemed proper to add that the publishers' practice of sending a post card to each person whose subscription to their knowledge is paid for by another, notifying him of the fact, indicates an apparent desire to confine the circulation of the Woman's National Daily to subscribers and not to force it upon anyone who does not wish the paper. However, under their present practice, as understood by this office, the publishers do not in their notification request that the recipient of the publication inform them whether he will accept the subscription made on his behalf and be willing to be regarded as a subscriber, and no not await the receipt of such information before sending the paper. As a consequence of their pursuing this course, many persons, as the test shows, are receiving the publication who disclaim being subscribers, and many others are refusing the paper, thus causing an unusually large amount of correspondence on the part of the postal service and the publishers before their names are taken from the subscription list.

It is believed that when the publishers of the Woman's National Daily have considered the result of the department's test in connection with the correspondence necessitated almost daily by refused copies, they will make such changes in their methods as will have the effect of placing upon the subscription list the names of only such persons as can properly be regarded as forming a part of the "legitimate list of subscribers" required by law. It has therefore been decided to defer action in this case to enable this office to consider a statement from them in the premises. This you will please request the publishers to submit through you after you have given them the inclosed copy of this letter.

Respectfully,

JAMES J. BRITT, Third Assistant Postmaster General.

The reply of the publishers of the Woman's National Daily, submitted through the postmaster at St. Louis, Mo., was, in effect, an admission of the existence of excessive gift copies, with their attendant evils both to the publishers and the Post Office Department, but without direct indication of a purpose to eliminate from their subscription list such portion thereof as would appear to be illegitimate, on account of nonacceptance and other causes. The reply is as follows:

Mr. T. J. AKINS,

Postmaster, St. Louis, Mo.

THE LEWIS PUBLISHING Co., University City, St. Louis, February 28, 1911.

MY DEAR SIR: Replying to your letter of the 27th, inclosing copy of a letter from Third Assistant Postmaster General of date of the 24th, we beg to state that we are

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