"A request has been made that the deposit provided in section 441, Postal Laws and Regulations, be waived in this case. Inasmuch as the Winner is entered as secondclass matter, if you are satisfied that it would be perfectly proper to do so, you may waive the money deposit required by section 441 of the Postal Laws and Regulations to secure payment of the third-class rate of postage upon all mailings of the Woman's Magazine, pending consideration of the application for its entry as second-class matter upon the change of name from the Winner." "Respectfully, yours, 66 "H. B. BACON, 'Acting Third Assistant Postmaster General.” On August 26, 1902, the letter of the postmaster of August 22 had reached the department, whereupon the following reply was sent: "POSTMASTER, St. Louis, Mo. "SIR: The application for entry of the Woman's Magazine as second-class matter upon change of name from the Winner has been received. "In view of the fact that the Winner is no longer in existence and is superseded by the Home Magazine, and, further, that you were given authority on the 25th instant to waive the money deposit required by section 441 of the Postal Laws and Regulations to secure payment of the third-class rate of postage upon all mailings of the Woman's Magazine, pending consideration of the application for its entry as second-class matter upon change of name from the Winner, you are directed to request the publisher to deliver to you the certificate of entry of the Winner as second-class matter, so that it may be forwarded to the department for filing with the case of the Winner. "Very respectfully, "H. B. BACON, "Acting Third Assistant Postmaster General." It is proper to state here that on April 2, 1902, before there was any change of name of the Winner Magazine, the Post Office Department had issued an order to show cause why that publication should not be denied the second-class rate of postage on the grounds set out in that notice, but no action seems to have been taken in this matter. On October 1, 1902, the postmaster at St. Louis addressed a letter to Mr. Lewis, inclosing a copy of the letter from the Third Assistant Postmaster General requesting a return of the certificate of entry for the Winner, in which letter the postmaster refers to the fact that verbal requests for the return had been made on several occasions and he now requests immediate attention, in order that he may send a reply to the department. In reply to this letter, Mr. Lewis, on the same date, advised him that he was unable to find that certificate, but that he would again make careful search and, if successful, would forward it at once. A copy of this letter was forwarded to the department by the postmaster, and on October 9 the Third Assistant Postmaster General advised the postmaster that, "in view of the statement in your letter of the 3d instant that the publisher of the Winner is unable to find the certificate of entry of that publication as second-class matter, the department will not press its request for the surrender of that certificate." The Woman's Magazine, in conformity with the regulations of the department, published that it was entered as second-class matter at the post office in St. Louis, giving the date when the certificate was granted to the Winner, making no mention of the temporary permit granted August 21, 1902, nor claiming any other later permit. No final action was taken by the department on this application, and the Woman's Magazine was permitted the second-class privilege until limited by the action of the postmaster at St. Louis, as stated in No. 5417. On June 5, 1905, and on April 19, 1906, notices identical with those in No. 5417 were sent to complainant. As it has been determined in the case of the Woman's Farm Journal that there was no hearing, and the facts in this case are identical, the same conclusion would naturally be reached if the second-class privilege has ever been granted for this magazine. The grounds for the claim are that the magazine was permitted to go through the mails ever since August, 1902, at second-class rates; that the temporary permit has never been revoked; that the notice on the magazine, printed in compliance with the law, showed that the privilege granted to the Winner is claimed as the authority for this magazine; that the notice sent on June 5, 1905, was that the complainant "show cause why the authorization for admission of the Woman's Magazine to the second class of mail matter, under the act of March 3, 1879, should not be revoked"; and that the letter of April 19, 1906, notifying the complainant of the day set for hearing on its appeal from the action of the postmaster in determining that the subscriptions to the Woman's Magazine did not exceed 539,901 copies, also recognized the fact that the second-class privilege had been granted, and for these reasons it is claimed that complainant possessed that privilege and it could not be revoked without a hearing, in conformity with the act of March 3, 1901. The action of the Postmaster General on March 4, 1907, so far as it concerns this matter, is as follows: "In the matter of your recommendation that the department deny the pending application submitted August 22, 1902, for entry of this publication as second-class matter, you are informed that upon a hearing granted the publisher on the same dates (April 30 and May 1, 1906), and upon a careful and thorough investigation of all the evidence by the department, I find that the publication does not have a legitimate list of subscribers, that it is designed and published primarily for advertising purposes, and that it is being circulated at a nominal rate, contrary to the law and the regulation of the department. You will, therefore, refuse hereafter to accept for mailing at secondclass rate of postage copies of said publication, and notify the publisher that his application for entry of the Woman's Magazine as second-class matter is denied." This was addressed to the postmaster at St. Louis. Whatever the effect of the actions of the department officers, as herein recited, might be if performed by officers of private corporations, or individuals, or their agents, is immaterial, for the law is well settled that the Government can not be estopped by any authorized acts of its officers or their mistakes. Laches is not imputable to the Government in its character as sovereign by those subject to its dominion. (United States v. Kilpatrick, 9 Wheat., 735; Gibbons v. United States, 8 Wall., 269; Felor v. United States, 9 Wall., 45; Hart v. United States, 95 U. S., 316; Minturn v. United States, 106 U. S., 437; German Bank v. United States, 148 U. S., 573; United States v. Pine River, etc., Co., 89 Fed., 907, 32 C. C. A., 406; Woodruff v. Berry, 40 Ark., 251.) It is conclusively shown that no permit had ever been granted allowing the Woman's Magazine the second-class rate privilege, except the temporary permit, and that provides specifically that the permission is only granted "until the Post Office Department shall determine whether it is admissible as second-class matter." The only determination by the department is that made on March 4, 1907, refusing it. As the law does not require the department to grant a hearing on that question, none was necessary, and as there is no provision of law for reviewing the action of the Postmaster General, the injunction prayed must be refused. JACOB TRIEBER, Judge. EXHIBIT D. [Affidavit of Robert M. Fulton.] STATE OF CALIFORNIA, County of Los Angeles: Robert M. Fulton, of Los Angeles, Cal., states, in answer to the charge of E. C. Madden, as attorney for the Lewis Publishing Co., that in May, 1905, inspectors gave an advance copy of official reports on the Lewis Publishing Co. to the St. Louis PostDispatch; that about that date, as post-office inspector in charge at St. Louis, Mo., Inspector William T. Sullivan, now deceased, and Inspector James L. Stice made to, and affiant received, approved, and transmitted to the chief post-office inspector at Washington, D. C., for reference to the Third Assistant Postmaster General and the Assistant Attorney General, reports on the said Lewis Publishing Co., the Peoples United States Bank, and divers other Lewis companies; that subsequent thereto the St. Louis Post-Dispatch published the purport of said reports, said to have been obtained at Washington; that affiant gave no copy of report or any facts stated therein to said publication, or any other publication, or to any person for such publication; that affiant caused a thorough investigation to be made, and that all of the inspectors and clerks of the St. Louis division denied furnishing such published matter; that, while affiant was unable to positively determine the manner, time, and place of obtaining the published story, yet he believes, from statements of the late Inspector William T. Sullivan, that the story was not furnished the said publication from the Washington end; that if the said information did emanate from any officer or employee of the Post Office Department, affiant was unable to sufficiently fix the responsibility therefor. Affiant further suggests that this charge, coming at this late date, should be carefully weighed by those seeking the truth, in view of the known decease of Inspector Sullivan, who transcribed and finally edited the said report and whose lips are closed to his own defense, and in further view of the emanation of the charge from an ex-official, now an attorney, and the party accused, now his client, both of whom have in recent months shown themselves zealous in discrediting in every way possible the Government's adverse actions against the various Lewis enterprises, and especially the inspectors' reports thereon. ROBT. M. FULTON. Subscribed and sworn to before me, a notary public in and for the County of Los Angeles, State of California, this 7th day of July, 1911. [SEAL.] M. E. ALDERMAN. (This statement is the property of the Post Office Department of the United States, and is furnished for its use and at its request and in connection with matters under investigation by affiant while an officer of said department, and still pending therein.) EXHIBIT D-1. [Affidavit of James L. Stice.] James L. Stice, of lawful age, first being duly sworn deposes and says: "I was employed in the Post Office Department during the year 1905 as a postoffice inspector, attached to the St. Louis, Mo., division, and was located at St. Louis. In February of that year I was assigned to the investigation of cases relating to the operation of the Peoples United States Bank and to the use of the second-class mailing privilege by the Lewis Publishing Co. in the circulation of the Woman's Magazine and the Woman's Farm Journal. "On May 17, 1905, an official report was prepared and transmitted to the Post Office Department, at Washington, D. C., on the investigation of the Peoples United States Bank. On the same day an official report was prepared and transmitted to the Post Office Department relative to the two publications hereinbefore mentioned. "On May 31, 1905, there appeared in the St. Louis Post Dispatch, a daily newspaper published in St. Louis, an article purporting to quote from the report of the postoffice inspectors in the case of the investigation of the Peoples United States Bank. The investigation of the Peoples United States Bank and other matters pertaining thereto was conducted by Inspector William T. Sullivan and myself. The report in the case was prepared, in the main, by Inspector Sullivan. It would have been a physical impossibility for any representative of the Post Dispatch to have obtained from the office of the post-office inspector in charge at St. Louis a copy of this report as completed, and I state positively that no copy of such report was ever in the possession of the Post Dispatch or of any unauthorized person to my knowledge. It was possible for a representative of the Post Dispatch to have obtained by theft notes and portions of the rough draft of the report, which were in the possession of Inspector Sullivan, but I have no knowledge as to whether this was done. I prepared the report myself in the case of the Woman's Magazine and the Woman's Farm Journal, and I assert positively that no portion of that report, as completed, or any of the notes or memoranda used in its preparation, was ever out of my immediate possession, and that no portion of such report, or of the notes used in its preparation, was ever in the custody of the Post Dispatch, or any unauthorized person, to my knowledge. "JAMES L. STICE, "Post-office Inspector." Subscribed and sworn to before me, a notary public, this 11th day of July, 1911, at Washington, D. C. [SEAL.] CHAS. F. CUMMINS, Notary Public. SIR: You are hereby notified that, in accordance with the act of Congress approved March 3, 1901 (ch. 851, 31 Stat. L., 1107), you will be granted a hearing at the office of the Third Assistant Postmaster General, Washington, D. C., at 2 p. m., on Saturday, June 17, 1905, to show cause why the authorization for the admission of the Woman's Magazine to the second class of mail matter under the act of March 3, 1879, should not be revoked, and why the third-class rate of postage should not be charged for the transmission of that publication in the mails upon the following ground: That this publication comes within the following prohibition of the statute: "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," in that, first, it is primarily designed for advertising purposes; second, it is primarily designed to advertise the other businesses in which the stockholders and officers of the publishing company, and especially E. G. Lewis, are interested; third, it is primarily designed for free circulation or for circulation at nominal rates. Your answer, in writing, must be submitted on or before Saturday, June 17, 1905. Should you desire to avoid the expense and trouble incident to a trip to Washington, your written answer will be given the same full and painstaking consideration as though you appeared in person or by representative. Respectfully, EDWIN C. MADDEN, Third Assistant Postmaster General. EXHIBIT E-1. [Citation to publisher of Woman's Farm Journal, dated June 5, 1905.] OFFICE OF THE THIRD ASSISTANT POSTMASTER GENERAL, PUBLISHER OF WOMAN'S FARM JOURNAL, St. Louis, Mo. SIR: You are hereby notified that, in accordance with the act of Congress approved March 3, 1901 (ch. 851, 31 Stat. L., 1107), you will be granted a hearing at the office of the Third Assistant Postmaster General, Washington, D. C., at 2.30 p. m. on Saturday, June 17, 1905, to show cause why the authorization for the admission of Woman's Farm Journal to the second class of mail matter under the act of March 3, 1879, should not be revoked, and why the third-class rate of postage should not be charged for the transmission of that publication in the mails, upon the following ground: That this publication comes within the following prohibition of the statute: “Provided, however, That nothing herein contained shall be so construed as to admit to the secondclass rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates," in that, first, it is primarily designed for advertising purposes; second, it is primarily designed to advertise the other businesses in which the stockholders and officers of the publishing company, and especially E. G. Lewis, are interested; third, it is primarily designed for free circulation or for circulation at nominal rates. Your answer, in writing, must be submitted on or before Saturday, June 17, 1905. Should you desire to avoid the expense and trouble incident to a trip to Washington, your written answer will be given the same full and painstaking consideration as though you appeared in person or by representative. Respectfully, EDWIN C. MADDEN, Third Assistant Postmaster General. EXHIBIT E-2. [Memorandum of Mr. Madden, June 8, 1905, to Postmaster General.] [Case No. 52856-C. Report of Post-Office Inspectors Wm. T. Sullivan and J. L. Stice, dated May 17, 1905, on the Woman's Magazine and the Woman's Farm Journal, of St. Louis, Mo. Approved by Inspector in Charge R. M. Fulton, May 17, 1905.] POST OFFICE DEPARTMENT, Gen. CORTELYOU: In this case of the Woman's Magazine and the Woman's Farm Journal, of St. Louis, regarding which we have had some conferences, I beg to inform you that after you left the city Monday I decided, because of the circumstances, to cite the publisher to show cause why these two publications should not be excluded from the second class of mail matter. Separate citations were issued. The following is the essential paragraph of each: "That this publication comes within the following prohibition of the statute: '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.' in that, first, it is primarily designed for advertising purposes; second, it is primarily designed to advertise the other businesses in which the stockholders and officers of the publishing company, and especially E. G. Lewis, are interested; third, it is primarily designed for free circulation or for circulation at nominal rates." I doubt whether this action is in accordance with your temperate and judicial method of dealing with such matters, and it is not in keeping with the policy of caution and avoidance of immoderation which has heretofore prevailed in this office and which has been generally successful in dealing with abuses of the second-class mailing privilege. I was prompted to take the action by the earnestness with which the charges against these publications are pressed in the inspector's report, although an examination of that report discloses that a very great deal of the evidence on which it is based has no relevancy to the question of postage rates, and this view is concurred in by the special counsel for the department on this class of cases. I was also influenced by the telegram of Inspector Fulton, dated May 31, a copy of which was furnished me, wherein he urged "concerted action part of Assistant Attorney and Third Assistant on reports of 16th instant." The hearing on the fraud-order case before the Assistant Attorney General is set for June 16; and the hearing on the right of the two publications to the second-class rates, before the Third Assistant Postmaster General, is set for June 17. I do not understand why the questions of the issuance of the fraud order, on the one hand, and the right of the publications to a particular classification, on the other hand, should be the subject of "consorted action"; but I did not wish to leave any obstacle in the way of the inspectors' establishing the case which they appeared to conceive themselves able to establish. I deemed it improper, however, to act upon their recommendation that the secondclass privilege of the Woman's Magazine be summarily taken away. That publication has been in fact accorded that privilege and is in the enjoyment of it in the customary manner. The exact form of the authority is, in law, immaterial, and I am advised by counsel that it would be contrary to the statute requiring hearings in such cases to annul the privilege in a summary manner. This, I have ascertained, is also the view of the office of the Assistant Attorney General, and it is certainly in accordance with the dictates of justice for a summary denial of this privilege, as recommended, would mean the sudden destruction of a business valued at upward of a million dollars and the rendering idle, if not useless, of a plant in which over $100,000 appears to have been invested. The act of March 3, 1901, was designed to prevent just such attempts to strike down, without warning, established enterprises, and I could not permit myself to be hurried beyond the law. Owing to the unusual course of procedure in this case it may become necessary at the hearing on June 17 for me to have the inspectors present to furnish the evidence which they summarized in their report. Respectfully, EDWIN C. MADDEN, Third Assistant Postmaster General. |