issue of the Woman's Farm Journal, aggregating in weight 65,784 pounds, withheld from transmission by you as being in excess of the number of copies which the publishers are legally entitled to transmit at the pound rate of postage, and 539,308 copies of the November, 1905. issue of the Woman's Magazine, aggregating in weight 107,682 pounds, stated to be in like manner in excess of the number of copies which the publishers are entitled to transmit at the pound rate, you are informed as follows:

"Assuming, as matter of fact, that the copies withheld from transmission in the one case and mailed in excess in the other are copies in excess of the number which the publishers are entitled to mail at the pound rate of postage, as stated in your letter, then, unless such excess is great enough to establish that the publication is designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates,' and thus exclude the publication from the second class altogether, a matter which can be determined only after a hearing before this bureau under the act of March 3, 1901 (ch. 851, 31 Stat. L., 1107; sec. 444, P. L. & R.), such excess copies are chargeable at the rate of 1 cent for each 4 ounces or fraction thereof, prepaid by stamps affixed." You returned that letter to me with instructions to eliminate from the last paragraph the following:

"Unless such excess is great enough to establish that the publication is 'designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates,' and thus exclude the publication from the second class altogether, a matter which can be determined only after a hearing before this bureau under the act of March 3, 1901 (ch. 851, 31 Stat. L., 1107; sec. 444, P. L. & R.)."

The letter issued by me to the postmaster under date of March 30, 1906, therefore read as follows:

“Your letter of March 15, in which you call attention to a letter dated November 11, 1905, to which you received no answer, is received.

"You are informed that your letter of November 11 was referred to the Postmaster General for his consideration. No action was, therefore, taken by this office.

"In response to the inquiry contained in your letter of March 15, respecting the postage which should be collected on 300,727 copies of the October, 1905, issue of the Woman's Farm Journal, aggregating in weight 65,784 pounds, withheld from transmission by you as being in excess of the number of copies which the publishers are legally entitled to transmit at the pound rate of postage, and 539,308 copies of the November, 1905, issue of the Woman's Magazine, aggregating in weight 107,682 pounds, stated to be in like manner in excess of the number of copies which the publishers are entitled to transmit at the pound rate, you are informed as follows:

"Assuming, as matter of fact, that the copies withheld from transmission in the one case and mailed in excess in the other are copies in excess of the number which the publishers are entitled to mail at the pound rate of postage, as stated in your letter, then such excess copies are chargeable at the rate of 1 cent for each four ounces or fraction thereof, prepaid by stamps affixed."

It appears that the elimination of the words above quoted was due to the opinion given you by Assistant Attorney General Goodwin under date of March 28, 1906.

Under date of April 2, 1906, the postmaster addressed the following letter to the Third Assistant Postmaster General, he apparently having found my letter of instructions insufficient to meet the situation:

"I have your letter of March 30, in response to my inquiry of March 15, bearing on the matter of postage that should be collected on excess copies of the Woman's Farm Journal and Woman's Magazine mailed in October last by the Lewis Publishing Co.

"The last paragraph of your letter reads:

“Assuming, as matter of fact, that the copies withheld from transmission in the one case and mailed in excess in the other are copies in excess of the number which the publishers are entitled to mail at the pound rate of postage, as stated in your letter, then such excess copies are chargeable at the rate of 1 cent for each 4 ounces or fraction thereof, prepaid by stamps affixed.'

"As the above instructions appear to relate solely to the October mailing, I again write you for instructions as to how to proceed in connection with future mailings of the Magazine and Farm Journal, assuming that the same conditions exist as to the mailings of a large number of copies of each publication in excess of the legitimate mailings.

"My attention was directed on March 28, in a joint conference with the United States attorney and the post-office inspectors, to a letter from you addressed to Chief Inspector Vickery, date of March 22, 1906, in which you stated among other things:

"While the postmaster may not deny the second-class mailing privilege to a publication except upon a determination to that effect by the department after a hearing, it is his duty, assuming the right to that privilege, to charge the lawful rate upon every copy passing through his hands. Therefore, if the postmaster has before him facts which, in his judgment, justify his determining these copies to be subject to the transient second-class rate he should notify the publisher of that fact and demand that such rate be paid before transmission.'

"The conclusion was reached in this conference that it was my duty under the instructions embraced in the above paragraph to notify the Lewis Publishing Co. of my intentions to demand the 1 cent for each 4 ounces postage on excess mailings of the future issues of its publications, and I would consider it my duty to do so had these instructions been addressed to me.

"The next issue of the Farm Journal will begin mailing within a few days, and the mailing of the Magazine will begin about the 20th instant. Without waiving my views, as expressed in a letter to your office November 11, to the effect that I challenged the right of these publications to further second-class privileges, I would state that it is my desire in the meantime, while this question is being settled, to protect the revenues of the Government as far as possible by collecting from the publishing company the proper transient secondclass postage for excess mailings of their papers.

"At an early date I would be pleased to receive such orders from you in this respect as will bring about this result, and I will act upon them, as I am satisfied that in the future mailings of these publications the same attempt to defraud the revenues of the Government will be made, and in the same manner as was practiced by them last October and has been regularly since that date."

Responding to this letter, instructions dated April 6, 1906, were sent to the postmaster from this office, not, however, until they had been submitted to you for approval with a memorandum dated April 4, 1906. You returned the letter and the memorandum marked, "O. K., G. B. C." The letter read:

"In answer to your letter of April 2, on the subject of the Woman's Farm Journal and Woman's Magazine, published by the Lewis Publishing Co., you are informed that the direction that copies found to be in excess of those which the publishers are entitled to mail at the pound rate of postage are chargeable at the rate of 1 cent for each 4 ounces or fraction thereof, prepaid by stamps affixed, applies, obviously, to all excess mailings whether they be of the issue of October or any other month. The inquiry made by you was as to a particular number of copies of particular issues, and it was answered accordingly. Inasmuch, however, as it is the duty of the postmaster to charge the lawful rate upon all mail matter passing through his hands, it would be your duty, whenever the facts before you justify you in holding that the copies are in fact excess copies, to charge upon such excess the rate I have already mentioned, namely, the transient second-class rate.

"With respect to your statement that you challenge the right of these publications to further second-class privileges, you are informed that you should set out in a report all the facts upon which your challenge is based in order that proper action may be had by this office under the act of March 3, 1901.

"It is a part of the postmaster's duty to lay before this office any facts within his knowledge which tend to show that any publication mailed at his office is not entitled to the second-class mailing privilege. Such report should be detailed and should be accompanied by a statement of the evidence by which it may be supported in case a hearing may be decided upon."

Merely as indicating the regularity with which I submitted to you everything concerning the Lewis case which came to my notice, or which called for any action on my part, prior to April 14, 1906, when the case was turned over to me, I quote the following memorandum sent you April 13, 1906, which was returned to me marked "O. K., G. B. C.":

"In accordance with my practice of bringing all matters in relation to the Lewis publications of St. Louis to your attention, I beg to hand you herewith a letter from Mr. Shepard Barclay, of St. Louis, making inquiry in regard to the Postal Laws and Regulations, edition of 1902, and other matters, and also my reply thereto. If the reply meets with your approval, I will forward it."

My reply to Mr. Barclay, referred to in the foregoing memorandum, and which was sent under date of April 17, 1906, read:

"In reply to your letter of the 9th instant, I have to say that the 1902 edition of the Postal Laws and Regulations is the latest. There is no prescribed form or manner of appealing from a ruling of a local postmaster on the postage charges exacted by him. Postmaster Wyman, at St. Louis, is probably acting under the instructions from this office found on page 1041 (par. 12) of the January, 1905, Postal Guide, as follows:

"If sample copies, in excess of the number hereinbefore specified (see par. 10), be presented for mailing, they are not entitled to the pound rate of postage. They are chargeable with the transient second-class rate of 1 cent for each 4 ounces or fraction thereof, to be prepaid with stamps affixed on each separately addressed copy or package of unaddressed copies.'

"Paragraph 10, referred to, provides that the number of sample copies which may be mailed at the pound rate with any issue of a publication must not exceed the number of copies of that issue sent to subscribers."

Under date of April 11, 1906, the postmaster addressed the following letter to the Third Assistant Postmaster General:

"Referring to your letter of the 6th instant, in which you state, among other things, that it is my duty when satisfied copies of a publication are being mailed in excess of the regular number to which it is entitled at the pound rate, to collect the transient second-class postage on such excess, I will state that on the 6th instant, upon receipt of a like ruling from the Postmaster General, I notified the Lewis Publishing Co. that the transient second-class rate of postage would be required thereafter on all copies of the Woman's Farm Journal mailed in excess of their legitimate subscriptions, numbering 141,328, together with sample copies not to exceed that number, or a total mailed of 282,656. (See copy of letter herewith.)

On the 7th instant E. G. Lewis, president of this company, called at my office and stated it was his intention to appeal from my decision as to the number of his legitimate subscribers, and deposited with me $3.000 to cover postage at the rate of 1 cent per copy on the anticipated mailings of 300,000 excess copies of the said journal. (Copy of Mr. Lewis's letter and of receipt given him herewith attached.)

"The mailing of the excess copies of the Farm Journal was then begun, and has practically been completed. The mailing of the 282,656 had practically been completed at the time my notice was given.

"Some five days have passed and Mr. Lewis has not submitted to me his papers bearing on the appeal, and it is deemed wise not to defer reporting the matter to you longer, and requesting that should Mr. Lewis forward his appeal and papers bearing thereon direct to you that you return same to this office, that I may be able to make an intelligent report and recommendation on the defense submitted by him.

"In the absence of these papers I might state briefly for your information, in the meantime, that on November 11, 1905, I submitted quite a lengthy report to you, in which I stated, among other things:

"That by reason of information recently acquired I think it proper to express my conviction that not only the Woman's Magazine, but the Woman's Farm Journal as well, are both being mailed in abuse of the privileges to which second-class matter is entitled, and to the extent which justifies at least an immediate and searching investigation of the whole matter, if not an absolute denial of the second-class privileges to both publications.'"

"I stated, further, my belief was that a fair showing of the lost revenue on the November, 1905, mailing of the Woman's Farm Journal amounted to about $1,953.93, and that, while because of a change of system of mailing effected by Lewis to thwart, if possible, a like investigation of the Woman's Magazine it was impossible to tell the exact loss of revenues in connection with that magazine, yet that, from what investigation I had made, the indications were similar conditions existed as affecting the said Woman's Magazine, and that a thorough investigation would show a pro rata loss to the Government on that publication. I gave the figures and some facts upon which my conclusion was reached, and further stated that the inspectors have made various inquiries of me touching the case, from which I assume that additional facts can be obtained by inquiry made to the honorable chief inspector.' I stated that these publications would begin their next mailing at an early date, and asked for instructions as to further action prior to such mailing to prevent additional loss to the Government. Neither instructions nor reply were received from you

on this matter until your letter of the 6th instant, which was received by me on the 9th.

"I now report that the continued investigations, as made since November 11 by this office and the inspectors, fully confirm my belief and conviction as then expressed, and I doubt not that the particulars of this investigation fully reported to the chief inspector by the inspectors handling the case can be made (or are) available for your information.

"I intend to submit a notice to the Lewis Publishing Co. to-morrow, affecting the mailings of the excess copies of the Woman's Magazine similar in terms to the one submitted on the 6th instant affecting the Farm Journal. "The number of 141,328, as representing the legitimate subscriptions to the Woman's Farm Journal, and the number 539,901, as representing the legitimate subscriptions to the Woman's Magazine, are based on a count made of the current subscription-card records of these publications as kept and submitted by Mr. Lewis, president of the company, which count was made by inspectors in conjunction with 54 trusted and experienced clerks from my office. The accuracy of this count has been confirmed by replies to inquiries made since by clerks in my office, who, from the monthly mailings of each publication sent since October, 1905, have selected a representative list of names and addresses from the mailings thereof upon which to base these inquiries and to thoroughly and fairly test the legitimacy of the list.

"That the legitimate list of subscribers reaches even the numbers above indicated is challenged, as recent developments show practically a thousand subscriptions obtained in one instance at the rate of 5 cents per annum, through names furnished by an advertiser interested in the circulation of the publications for advertising purposes. This is representative of other like cases brought to our attention. Another illustrative case shows over 1,500 subscriptions obtained since January 1, 1906, by so-called clubbing arrangements with another newspaper, by which the Woman's Magazine is practically being sent gratis as a premium, the nominal rate of 5 cents per annum being charged.

"This office is confident that it has facts and evidence to enable it to maintain its position fully against any showing that the Lewis Publishing Co. may submit in connection with their appeal to your office. Further report will be submitted along the lines made necessary as soon as the claims of this company are received by me."

The foregoing letter was submitted to you on April 14, 1906, with the following memorandum:

"I hand you herewith a letter from the postmaster at St. Louis, under date of April 11, 1906, inclosing a copy of his letter of April 6 to the Lewis Publishing Co., a copy of their reply, and a receipt given them for deposit; also a letter of the postmaster at St. Louis, under date of April 12, inclosing a copy of his letter of April 12 to the Lewis Publishing Co., and his supplemental letter of April 12. All of these were received to-day.

"Inasmuch as these relate to the St. Louis case, all communications upon which I have heretofore sent you, I send these also for fear that any action of mine might complicate action contemplated elsewhere.

"On April 6, 1906, I wrote the postmaster informing him that copies in excess of those which the publishers are entitled to mail at the pound rate are chargeable at the second-class transient rate, and that it is his duty to charge the lawful rate upon all matter passing through his hands, and that if the facts justify the conclusion that copies were being mailed in excess of the publishers' privilege for his legitimate list of subscribers and an equal number of sample copies, he should charge upon such excess the transient second-class rate of postage. The theory upon which the transient second-class rate is charged was explained in my letter of March 22, 1906, to the chief post-office inspector, and although that theory has never received judicial approval and may be regarded as doubtful, I deemed it best to adhere to it in instructions to the postmaster.

"It appears from this correspondence that, acting under these instructions, the postmaster has notified the publishers that, having reached the conclusion that the legitimate subscriptions to the Woman's Farm Journal are not to exceed 141,328, and the legitimate subscriptions to the Woman's Magazine are not to exceed 539,901, that all copies in excess of 282.636 in the first case, and in excess of 1,079,802 in the second case, would be chargeable at the transient second-class rate.

"From this ruling the postmaster informs me that the publishers have appealed, but that appeal has not yet been received in this office. Pending such

appeal, and until the facts may be determined by the department, the ruling of the postmaster upon the evidence before him stands. There is, therefore, nothing at the present moment upon which this bureau can act."

On the same date, April 14, 1906, you wrote me the instructions which for the first time placed the matter in my charge. Your letter is as follows:

"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 cover the postage on copies of its publication entitled Woman's Farm Journal, which he believes to have been mailed in excess of the number legally mailable at the pound rate, and as president of that company asks to be accorded a hearing upon the issue raised by the action of the postmaster.

"You will please immediately institute an investigation for the purpose of determining whether the Woman's Farm Journal and the Woman's Magazine, issued by the Lewis Publishing Co., are entitled to second-class privileges; and, if so, what number of copies of each publication should be admitted to the mails monthly at the rate of 1 cent per pound. This investigation should be thorough and comprehensive, and in pursuance of it the company should be afforded early opportunity to be fully heard upon the questions involved."

On April 17, 1906, you returned to me my memorandum of April 14, together with the letter of the postmaster dated April 11, to which it referred, with the following memorandum :

"This would appear to be covered by my letter to you of the 14th instant, directing an investigation of the Lewis publications, in response to Mr. Lewis's appeal through Representative Overstreet."

From April 14, 1906, therefore, the case was in the hands of the Third Assistant Postmaster General, and I proceeded to deal with it according to the practices of this bureau in dealing with other publications in like situations, which I believed to be according to your instructions; except that as the issue was drawn on the appeal which I was to decide, it was necessary to undertake such an investigation of the publisher's business, records, etc., as had never before been undertaken by the Third Assistant Postmaster General.

It will be plain from the foregoing that prior to April 14, 1906, I was under the exceeding embarrassment of being unable to inform the postmaster in response to his repeated letters as to the course to pursue, except in the two instances where letters of instructions were sent him by your direction. They are my letters of March 30, 1906, and April 6, 1906.

The case now being in my charge I, on April 19, 1906, wrote the chief postoffice inspector, the postmaster at St. Louis, and the Lewis Publishing Co., respectively, as follows:

[To chief post-office inspector.]

"As you may remember, the postmaster at St. Louis, Mo., under date of April 11, advised this office that he has determined, in the case of the Woman's Farm Journal, published by the Lewis Publishing Co., of St. Louis, that the legitimate list of subscribers to such publication numbers 141.328, and that he has held that the transient second-class rate would be required on all copies mailed in excess of such legitimate subscriptions, numbering 141,328, together with samples not to exceed that number, or a total of 282.656.

"From the decision of the postmaster the publisher has appealed and deposited $3,000 to cover postage at the rate of 1 cent per copy upon anticipated mailings of 300,000 excess copies. The postmaster states that his decision was based upon the facts developed in the investigations made by his office and the inspectors of your division, and that the particulars were fully reported to you. "The Postmaster General having directed me to pass upon this appeal, I have to request that you will oblige me with the evidence referred to and any other evidence that may be in your office bearing upon the question as to the number of subscribers properly constituting the legitimate list, if any, of the Woman's Farm Journal.

"Mr. Bacon, superintendent of the classification division, informs me that he spoke to you about this evidence yesterday morning, but was unable to obtain it. If it can not be given in its original form, copies will be sufficient.