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The third case where this rule operated so as to provoke resentment was The Missouri Alumni Quarterly. (Exhibit 11b.) This was a very creditable magazine. A casual observer would have said there was no question about its being a periodical entitled to the second-class rates. But, as I stated before, physical appearance is not the test. A scrutiny of its contents disclosed that there was nothing in it of a character to be of interest to persons outside the membership of the alumni association. It concerned the affairs of the college and the students exclusively, among whom it circulated. It was denied second-class rates under the rule stated. To this a prominent Senator took objection, and the Third Assistant Postmaster-General had the distinguished pleasure of spending one entire evening, until after 11 o'clock, in a committee room of the Senate undergoing a rigid examination to discover whether or not he had unjustly discriminated against this publication. And the Senator found other publications of other colleges which, to his mind, were identical in character and which were being carried in the second class, while that of the Missouri college had been refused. Many more instances might be recited to illustrate the difficulty of determining what is information of a public character and of administering this one provision of the statute. The moral of it all is plain. It is less trouble, much easier, and one makes less enemies by not enforcing the law than by enforcing it. I have plenty of exhibits on this point. Senator CARTER. You might set forth the main exhibits, briefly, but not in extenso. Mr. MADDEN. I have here a publication of the Missouri Alumni Quarterly (Exhibit 11b). It is high-class matter, but restricted in its interest entirely to the membership of the organization. It is dated September, 1905. It is oli, submitted. Here is a copy of the Oak Park Organ, dated February 2, 1906 (Exhibit 11c). It contains a few notices by the Y. M. C. A. organization in that locality, addressed to its members. It has no interest outside of the membership. There are numbers of these, varying in degree. Here is a copy of the poster that was sent out by the Indiahoma Union Signal, called “A Square Deal" (Exhibit 11a–2). Senator CARTER. That is a supplement? Mr. MADDEN. It was sent out as a supplement and posted up all around the country. That was carried as third-class matter under a deposit while the case was pending for entry. The publisher had not secured the privilege, ..". was not in a position to demand a hearing that he would have been in if he had gained entry. This same paragraph provides for publications devoted to literature, the sciences, arts, or some special industry. What does the law mean by “devoted to literature?” If we were to hold that the term devoted to literature” means that the publication shall be devoted to the subject of literature, and not that it is merely to contain literature itself, imagine the result. A great number of our best magazines would be subject to exclusion. Nevertheless, that is exactly the construction that is placed upon the other three provisions, namely, the sciences, arts, or some special industry. One devoted to the sciences iscusses medicine, for instance; one devoted to the arts discusses
music, etc., and one devoted to some special industry discusses matters relating to that industry. One supposed to be devoted to literature is admitted to this class upon its containing literature itself, and without any discussion thereof as a subject at all.
We have already had one good illustration of how books may become a periodical publication (Exhibits 1a and lb). The process is easy; niake it up of parts of a number of stories instead of one, and, presto, you have a periodical devoted to literature. That a construction of the law that a publication made up of fiction, or chiefly of fiction, whether one complete story or parts of many, is not devoted to literature within the intent and purpose of the law can be sustained before the judiciary as the true meaning of the statute there is but little doubt. If it should be so decided, thousands of magazines now going as matter of the second class would find their place in the third class with other books.
Under the provision" or to some special industry” we have all manner of trade journals. They are legion. Some of them are highly meritorious publications and really devoted to their industries; on the other hand, we have a great many that are nothing more nor less than advertising propositions. The exhibits will make this clearer.
I have a copy of the Rose Jar, published in New York (Exhibit 12a), said to be a magazine for book lovers, and thoroughly within the construction of the law. It discusses literature; it discusses the books as they come out and the writers and all phases of the subject of literature.
Representative OVERSTREET. How often is it issued ?
Mr. MADDEN. Quarterly. There are only one or two magazines, to my knowledge, that as fully comply with the law in that respect as that one.
Here is a good illustration, devoted to a science. It is a copy of the American Journal of Theology, dated July, 1906 (Exhibit 12b), and is fairly devoted to a discussion of that subject.
I have here a copy of Camera Work, published in New York, dated July, 1903 (Exhibit 12c). It is devoted to the subject of camera work, with illustrations and discussions, and thoroughly within the intent and purpose of the law.
I have here a copy of the Iron Age, published in New York, dated September 13, 1906 (Exhibit 12d). It is devoted to the iron industry and represents a publication devoted to some special industry, so far as the text is concerned.
Senator CARTER. These samples are now admitted to the mail as second-class?
Mr. MADDEN. Yes, sir.
The next requirement of the statute is that a publication must have a legitimate list of subscribers. This is something outside of the physical thing itself. Practically everything else required is in the publication; but the list of subscribers is a different matter. Of course, this must be enforced; and recently, in the course of administration to protect the interests of the Government, it was necessary to frame some rules or definitions of what might be fairly considered as going to make up such a list (Exhibit 13).
The things prohibited from entering into the list will be of interest.
They include alleged subscriptions which had been secured through the means of premiums, or gifts, to the subscriber, the effect of which is to return the entire subscription price, and sometimes more; alleged subscriptions secured through clubbing arrangements, through which one or more publications are given away, thus defeating the law prohibiting free circulation, or circulation at nominal rates; alleged subscriptions actually given free upon the recipients signing an order to the publisher alleging payment or making a promise of payment upon which there was no collection and no intention to collect; alleged subscriptions in connection with the sale of goods the bill for which contains an item for subscription to the publication, which item was only a part of the price of the goods, there being no actual charge for subscription; alleged subscriptions which were themselves gifts or premiums given by the publisher in consideration of the purchase of merchandise which he had for sale in his other business; alleged subscriptions of persons whose names had been secured by the publisher from the lists of defunct publications which defaulted on their subscription contracts; alleged subscriptions based, without any order, contract, or other action on the part of the addressees, upon the sending of copies of publications with a notification that failure to direct discontinuance by a fixed date would constitute such persons subscribers; alleged perpetual subscriptions; alleged subscriptions for numbers of copies for their patrons or prospective patrons, or other third persons, by business houses, commission houses, stock exchanges, boards of trade, campaign committees, candidates for office, clubs, organizations, or individuals interested in the circulation of the publication for advertising or other purposes; alleged subscriptions carried indefinitely on a pretended credit. The devices by which this requirement of the law was and is circumvented are too numerous to mention. The law does not define a subscriber.
We can not very well present exhibits of that feature. We can give any number of statements on these lines which you may call for later to satisfy you of the extent of it. I have a stack of cases here of one phase or another of the subject. It would take all day to read them. I did not know just what you would call for, and I came as well prepared as possible.
This statute in no equivocal terms prohibits the admission of publications to the second class which are primarily designed for advertising purposes, or for free circulation, or for circulation at nominal rates. The possibilities of construction in that clause are very great. Without intending to cause alarm to publishers, I may say that a strict and honest construction and enforcement of that prohibition would force out of the second class from 60 to 70 per cent of all our newspapers and from 70 to 80 per cent of all our magazines. Verily this act of 1879 is a Pandora's box of possibilities of executive construction. All depends upon the view of the administering officer. He may be liberal or he may be strict, and be safely within the law. The United States Supreme Court has decided that an executive officer is not bound by prior construction if that construction be wrong. All this makes for uncertainty of the service.
On this point I want to submit some exhibits. I am only submitting one of a list. It just happens that attention was called to a copy of the Iron Age, which was recently submitted. It is a weekly
publication. We had a year's copies sent to us for analysis. We found it was too big a job to analyze a year, so we took six months. This is what we found: The subscription price per year is $5. The single number is 15 cents. The exhibit (Exhibits 14a-1 to 14a-26, inclusive) comprises the first 26 issues of 1906. It contains 7,676 pages. Total weight, 457 pounds. Pages of text, 2,118, or 27 per cent. Pages of advertising, 5,560, or 724 per cent. Of the text, a material portion is textual advertising, or write ups, which is considered to be the best kind of advertising. The estimate for the year at that rate is: Total pages, 15,376; total weight, 913 pounds; pages of text, 4,236; pages of advertising, 11,120. The question is, is the publication primarily for advertising purposes or for free circulation or for circulation at nominal rates?
I have here a copy of the Vehicle Dealer, published in Philadelphia (Exhibit 14b-1). It is dated April, 1905. It was analyzed in the same way. The total pages are 88. Pages of text, 32, or 36 per cent. Pages of advertising, 56, or 64 per cent. There was a supplement with this issue. Here it is (Exhibit 14b-2). The total pages are 144, all advertising, being substantially a catalogue of several vehicle dealers. The publication proper and the supplement give a total of 228 pages. Pages of text, 32, or 14 per cent. Pages of advertising, 196, or 86 per cent. Is it primarily designed for advertising purposes! I think perhaps that fairly illustrates the subject. The number of illustrations is legion, and you could get any number on any question you desire.
Senator CARTER. Mr. Chairman, I think it is very desirable that the statement of Mr. Madden be completed to-day if practicable, and in order to accomplish that it will be necessary to continue this session until after 5 o'clock. I think it is quite obvious that Mr. Madden will be somewhat distressed by continuous speaking until the time he finishes. I therefore suggest the propriety of taking a recess until, say, 3 o'clock, to the end that Mr. Madden may have some respite and that those who have engagements may keep them.
Representative OVERSTREET. Have you reached a convenient point, Mr. Madden, so that if you stop now you will not break into a particular subject ?
Mr. MADDEN. Yes; except that I have some additional exhibits that do not need to go in here now, concerning the daily newspapers, where they have been analyzed.
Representative OVERSTREET. They are on this same point?
Senator CARTER. I think it might be well for you to conclude on this particular point.
Mr. MADDEN. They thoroughly illustrate the subject.
Mr. MADDEN. I am mistaken. We have not the dailies analyzed. We simply have them and they show for themselves.
Representative OVERSTREET. Then this is a convenient place for you to stop?
Mr. MADDEN. It is.
The Commission, at 2.15 o'clock p. m., took a recess until 3 o'clock p. m.
The Commission reassembled at the expiration of the recess.
STATEMENT OF HON. EDWIN C. MADDEN RESUMED.
Mr. MaddEx. Mr. Chairman and members of the Commission, in resuming this statement I would like to begin by correcting what may be a false impression, if there be that impression either with the Commission or with the publishers present or any other publishers that the Department is making a case against the publishers. It is a mistake. The Department is making a case against the statutes.
I left off by giving some exhibits of publications which might or might not be held to be designed primarily for advertising purposes. I would like to continue with a few more.
I have here a copy of Harper's Monthly Magazine of October, 1905.
We analyzed this publication from October, 1905, to September, 1906 (Exhibits 14c-1 to 14c-12, inclusive). This is what the analysis shows: Total weight of 12 copies, 276 ounces; average weight per copy, 23 ounces; percentage of advertising of Harper Brothers' publications, including Harper's Magazine, 7.1; percentage of advertising, Harper Brothers, including Harper's Magazine and the Review of Books published by Harper Brothers, 9.5 per cent.
Using as an estimate 100,000 copies circulation a month, the cost for postage alone of distributing one circular, not exceeding 2 ounces in weight each, to a number of people would be $1,000.
The fact that Harper Brothers have a magazine in which they can place their circular for distribution gives them, as publishers, an opportunity to circulate at a cent a pound what any other person, witħout a magazine or periodical, could not do, which may or may not be an unfair advantage. I merely bring the point to your attention. The opportunity of the outsider to advertise in the publication at the advertised rates is no doubt open, but it is a question of how far a publisher of a magazine may advertise his other business in his periodical.
At the present time—this will be done later, if the Commission desires it-we were unable to analyze some of the big daily papers, because the analysis involved so much more work. It requires measurement, whereas you can easily count up the pages of a magazine.
I have here a copy of the New York American. It is dated September 9, 1906 (Exhibit 14d-1), and it is as full of advertising, in proportion, as any magazine.
Senator CARTER. Is that a week-day or Sunday edition?
Concerning this particular question also, it ought to be stated, in fairness to the publishers of magazines, that in the case of a newspaper, where the percentage of advertising appears to be running very high, it is a very easy matter to add a few pages of text. Taking 50 per cent, we will say, as a dividing line, we may well question whether that [exhibiting] is news or literature and whether there can be balanced against that an equivalent amount of advertising. Sixteen pages contain all the news that can be found in one day,