SPECIAL COMMISSION ON RAILWAY MAIL TRANSPORTA Hon. D. M. KEY, Postmaster-General: TION. WASHINGTON, D. C., November 14, 1877. The commission on railway mail transportation, appointed in the month of August and organized on the 1st of September of last year, under an act of Congress approved July 12, 1876, to examine into the subject of the transportation of the mails by railroad companies, was expected to make its report to Congress at the commencement of its then next session. With the extensive travel and labor expected of the commission, it was found to be impossible to complete the work assigned them and make a comprehensive report within the short period intervening, and Congress therefore extended it to the next succeeding session. In pursuance of their duties, and agreeably to the instructions of the Postmaster General, the commission placed itself personally in communication with postal officials, railroad managers, and business men in nearly every section of the country, upon the subject given it in charge, having visited the Eastern, Central, and Western States, including the Pacific slope, last fall and early winter, the Southern States, as well the coast line as the interior, last spring, and the Northwestern during the summer; since when the commission has devoted itself with unceasing energy to the matter committed to its consideration, holding many consultations and visiting distant points for further information when needed, the chairman giving his entire time to the preparation of the report, the other members being in constant communication with him, and always holding themselves in readiness for whatever might be required of them in turn in performance of duty. A The compensation of each commissioner was fixed by the President of the United States at $450 per month and necessary expenses. clerk was appointed by the President with a salary of $200 per month, which continued until the 1st of March, 1877, when Mr. Bassett, until then the clerk, was made one of the commission in place of Mr. Palmer, resigned. The act of Congress of July, 1876, appropriated the sum of $10,000 for the expenses of the commission, the duties of which, it was then thought, could be completed in three or four months. By the act of March, 1877, a further sum of $6,000 was appropriated, the latter, however, only applicable for the services and expeuses incurred after July 1, leaving nearly six months between the 1st January and 1st July unprovided for. The salary of the commissioners from September 1, 1876, to December, 1877, (fifteen months,) is.. Total amount of traveling and other expenditures Total expenditure... $20, 250 00 6, 466 60 Total amount of appropriations. Leaving a deficiency of.... 26,716 60 16, 000 00 10,716 60 A portion of which is expenses incurred and paid by the commission. The commission respectfully request that you will ask Congress to make an appropriation to cover this deficiency. The commission trust that the work in which they have been engaged, and to which they have devoted their best endeavors, will be satisfactory to yourself and to Congress, and will establish a basis upon which the compensation of the railroads can be easily determined in the future. The report of the commission, with the returns from the representative railroads showing the actual cost of service performed by them, will be ready to submit to Congress at an early day. Before doing so, the commission, however, desire to present the same to you for consideration, with the hope that you will make such suggestions as may seem to you to be desirable. 16 PO GARDINER G. HUBBARD, Chairman. CLASSIFICATION OF MAIL-MATTER. OFFICE OF THE ASSISTANT ATTORNEY-GENERAL SIR: During the temporary absence of the Assistant Attorney-General for this department, in June last, I was requested by the Acting First Assistant Postmaster-General to advise him as to the proper construction to be placed upon that portion of section 15 of the act of July 12, 1876, which reads as follows, to wit: "Regular publications designed primarily for advertising purposes." To his request I replied, under date of June 7th, in a somewhat lengthy opinion, and since that time to the date of this letter I have had referred to me between three hundred and four hundred publications, submitted to the department by postmasters, and in some instances competing publishers, in order that their status under the aforementioned section might be judicially determined. The construction of this section, and its application, have involved the careful examination of all the various sections of the statutes relative to the classification of mailable matter and the rates of postage thereunder. In view of my connection with this matter, you have requested me to suggest to you any conclusions I may have reached upon this very important branch of the postal service, and particularly as to the necessity for any change in the present laws relative to the same. In accordance with such request I have the honor to submit the following views for your consideration: Permit me to say, by way of introduction, that I am not of those who believe that rates of postage, as a principle, should be adjusted to accord with the actual carrying cost of the various articles of mail matter. Nor am I of that class who hold to the opinion that the postal department was designed to be a common carrier. I believe it was intended to have, and that its interests are best subserved in having, a limited use. Hence, like everything else having a limited use, it should be carefully guarded. I agree in the main with the views which have been heretofore expressed upon this subject by the late general superintendent of railway mail service, George S. Bangs, esq., to be found in his printed pamphlet of 1875. Briefly speaking, I hold that within this limited use the primary object of the establishment of a postal system by government was the "general dissemination of intelligence in the interest of the public good." In this view of it Congress seem to have ever legislated, as recognizing that the welfare of the people, and to a certain extent the perpetuity of our republican institutions, rest upon the intelligence of the citizen. It has made progressive concessions to "the press," notwithstanding the fact that for years the expenditures of the Post-Office Department in the carriage of the newspaper mail have exceeded the receipts, because, doubtless, it has recognized "the press" as an agency of the greatest importance in the promotion of the public good. Hence, in all its legislation upon this subject, Congress has classed "the press" as privileged matter in the mails, and has, since the act of 1845, been materially cheapening the rates of postage for its transmission through the same, until it reached the act of June 23, 1874, which generously accorded to the "public prints" of the country the benefit of the pound or bulk rates of postage, and thus brought them within the reach of the great body of the people. It happened that this act was made the occasion by certain sundry not overscrupulous persons for evading the plain spirit which prompted its passage. Under the vaguely loose definition of a "newspaper" and "periodical" which common parlance and even lexicographers have given to these words, it was found possible for persons engaged in certain trade-pursuits which they wished to advertise to the public in a cheap way, and who were attracted by these low rates of postage, to issue weekly, semi-monthly, and less often, but with a degree of regularity which enabled them to lay claim to the title of "periodical," publications devoted to advertising their interests, wares, or specifics, with just enough of hastily-collected news or light reading matter to enable them to mail them at the low rates fixed by the act of June, 1874. The result was, the mails were freighted with this kind of publication, to the great detriment of the service and the legitimate publications for which the law was intended. The evil became so crying that Congress, upon the recommendation of the Postmaster General, enacted the 15th section of the act of July 12, 1876, in the hope and with the intent that the evil might be avoided. The construction given to the law in my letter of the 7th of June has been conceded to be the correct one. With my views you are already familiar, but for the sake of connection I here insert them: OFFICE OF THE ASSISTANT ATTORNEY-GENERAL, SIR: I have made careful examination of the publications which you have submitted to this office, to wit, The Iron Age and The Metal Worker, published by G. D. Williams, at the city of New York, in connection with section 15 of the act of July 12, 1876, and I am of opinion that they are neither of them such publications as bring them within the provisions of that section. There is no ambiguity in the terms "regular publication designed primarily for advertising purposes," as employed in the aforesaid section, but the question of whether a given publication is within the terms employed, being a question of fact rather than law, is not as easily answered. Under the indomitable spirit of enterprise which has ever characterized the business interest of the country, of late years men engaged in certain trade-pursuits have resorted to the expedient of printing or having printed certain publications devoted mainly to the advertisement of their business or trade. These publications are issued in sheets, some of them having the appearance of newspapers, others of pamphlets; they are issued from regular offices of publication, and at regular and stated intervals, some of them designed for free circulation, some for circulation at moderate rates, while other are furnished only to bona fide and regular subscribers at a subscription which may bes regarded as fair and commensurate, but all of them having for their main object the public and undisguised advertisement of those who publish them. There can be no doubt that such publications are publications designed primarily for "advertising purposes," and whether they be issued under any of the conditions above named they are alike subject to the rates fixed by the fifteenth section of the act of July 12, 1876. There are, however, publications which do not so undisguisedly advertise the business of those who publish them. They are apparently devoted to the dissemination of intelligence relating to the pursuit or business of a certain class or classes of the general public, such intelligence consisting of correspondence, editorial articles, it may be trade reports, changes in business, and various other matter, as well as what are technically known as advertisements, and yet in point of fact these publications are primarily designed and are so conducted for the advertisement of the busi ness interest of those who publish or own them. The main object of such publications being to attract notice to the pursuit of those who publish or own them, it is entirely immaterial to the inquiry to consider by what manner this object is best accomplished. There may be a presumption in favor of all publications of this character which have a bona fide subscription list and which are published at rates other than nominal, but it is a presumption which is often overcome by careful diagnosis. The statute was not intended nor does it discriminate against regular publications, denominated class or special publications, per se. Twenty-five years ago a publication which met all tastes, which was for everybody's use, was all that was demanded by the people, but it cannot be denied that at this day the demand is for a division of labor here as elsewhere. It is impossible for a general periodical or newspaper to embrace within its space all the movements of the day, and hence but meager information upon these different subjects can be supplied, the elaborate and scientific details being left to the class-periodicals. The intention of Congress in the enactment of the statutes was not directed against such regular publications, whether confined to a single department or conveying information interesting and of the highest importance to certain classes of the community, but against those which, under cover of furnishing just such information, were designed primarily to apprise the public, or such of the public as could be induced to subscribe to their publications, of their business or trade. As a summary of these views I would advise you that publications which are regularly issued by single individuals or by firms, or by combination of individuals or firms engaged in trade, the main object of which is the prosecution of the business interest of the owners or publishers of the same, whether the same be done openly or without disguise, or whether it be done by conveying information relative to the business of a certain class of the general public, as well as such publications as are confined to general purposes of advertising, are such publications as are designated by the fifteenth section of the act of 1876. The question in all cases is a question of intent. Very respectfully, Hon JAMES. N. TYNER, First Assistant Postmaster-General. A. H. BISSELL, Acting for the Assistant Attorney-General for the Post-Office Department. Very little difficulty was experienced in interpreting the intent of the legislation provided in section 15 of this act, but when it was attempted to make application of this construction, involving as it did the question of intent in the publication, it was found next to impossible to do it within the limited field of investigation afforded the department. Various tests were tried, but were all found to fall short of even average fairness. It was deemed the test of subscribership would be a fair one, but in the case of Ehrich's Fashion Quarterly, of New York City, it was disclosed that it had a large legitimate subscription-list, although no doubt existed that the primary intent of its publication was to enhance the business of its publishers, who were besides engaged in the sale of notions. The fact of business management as bearing upon the question of intent was, in many cases, impossible to determine, because the onus probandi was upon the department. To illustrate the difficulty the department encountered in its attempt to apply the law above quoted, I have but to cite the case of a wellknown fashion-journal, which was submitted by the First Assistant Postmaster-General. An ex-parte examination of its contents, with such evidence as the postmaster at the city where the same was published was able to furnish, satisfied me that the journal was published, as its primary object, for increasing, by means of advertising, the business of its publisher, to wit, the importation, for sale, of patterns. Subsequently, and after a personal interview with the publisher, and upon his assurance that such was not the case, his publication was restored to the bulk rate of postage. I accidentally ascertained, some time after, that the publisher had, in many of the large cities of this country and Europe, pattern-emporiums, where the business of selling patterns was largely engaged in, and that the very publication which, upon his representa-. |