Chapter V: The Penrose-Overstreet Commission (2)

Up to January 1, 1908, periodical publishers were allowed to mail sample copies of any issue in number equal to that of their subscribed lists. Acting on the recommendation of the Penrose-Overstreet Commission, no doubt approved by Mr. Hitchcock, the mailing privilege on sample copies was cut down, January 1, 1908, to 10 per cent of the subscribed issue. Now comes Mr. Hitchcock with a bit of recommended legislation, as quoted above, which would, if favorably acted upon by Congress, deny the mailing privilege to _all_ sample copies at the cent-a-pound rate.

Though not pertinent to the subject immediately under consideration, I desire here to call the reader’s attention again to a point in Mr. Hitchcock’s recommended legislation as quoted above--a point which is conspicuously worthy of a second notice and to which I have called attention on a previous page.

Mr. Hitchcock’s report, from which the foregoing piece of recommended legislation is quoted, bears date of December 1, 1910. Keep that in mind. In that recommendation he would grant a _continuance_ of the cent-a-pound postage rate on periodicals “sent to subscribers,” but to such only. No sample copies are to be carried and handled, mind you, at the cent-a-pound rate after Mr. Hitchcock’s recommendation becomes law--that is, if it ever does become law.

Now, the subscribed mailings of any periodical--newspaper or other--are piece or single-copy mailings, which are admittedly the most expensive or costly to the government to transport and handle.

Yet Mr. Hitchcock recommends that _the cent-a-pound rate shall continue to be extended to such single copies_--a most just and sensible recommendation.

But Mr. Hitchcock when he wrote that bit of recommended legislation was thinking--and thinking only, if indeed he gave the subject any _personal_ thought at all--of curbing the circulation growth of periodicals and, as a means to that end, recommends the exclusion of all sample copies from the pound-rate privilege.

Read carelessly or superficially that bit of suggested legislation in itself does not appear to have anything to do with sample copies. On second and more careful reading, however, its purpose becomes clear. If the cent-a-pound rate is to be allowed only to regularly _subscribed_ copies of a periodical, then _all_ sample copies must be mailed, if mailed at all, at the third-class rate--_must pay eight cents a pound_.

When it comes to covering or cloaking ulterior purpose or intent in legislation, Mr. Hitchcock is an expert, it would appear from the rider he so strenuously tried to put astride the 1911-12 postoffice appropriation bill, and from the foregoing as well as some others of his suggestions to Congress. But the point to which I more especially desire to call to the reader’s attention when I obtruded that last preceding quotation at a point where it interrupted a consideration of the Penrose-Overstreet Commission’s report was this:--

As previously stated, Mr. Hitchcock’s 1910 report bears date, December 1, 1910. On that date, as appears from the last quotation, he desired a law that would bar all sample copies from the mails at the present second-class rate. It also appears that Mr. Hitchcock at the date named--December, 1, 1910--desired that all periodicals issued, except sample copies, _be carried, as now, at the cent-a-pound rate_.

Somewhere around February 1, 1911--_barely two months after he makes that cent-a-pound recommendation_--we hear Mr. Hitchcock assertively declaring, and contentiously arguing, that it costs the government _9.23 cents per pound_ to transport and handle second-class matter.

What happened to his mental gear in so short a time to induce so _loud_ a change in his mind?

Or was it a change of mind? On page 328 of that 1910 departmental report, Mr. Britt, Third Assistant Postmaster General, who has charge of the accounting division of the service, makes the bold statement that it cost the government $62,438,644.70 more to carry and handle the second-class mail last year than was received for the service. Being an “expert” figurer Mr. Britt found no difficulty in arriving at that absurd 9.23 cents a pound as the _actual cost_ to the government of carrying and handling second-class mail. On pages 7 and 8 of the report, Mr. Hitchcock himself gives publicity to a conviction that the cent-a-pound rate should be increased on certain periodicals--_the magazines_--generously suggesting that the increased rate be confined to their “advertising pages” only. In the loosely worded “rider” he carelessly--_or purposely_--uses the word “sheets” in place of the word “pages” as used in his report.

Still, in face of his Third Assistant’s lofty figuring, the conclusions of which are announced on page 328 of the report, and of his own statement of the “reasons for an increase of rate” on periodicals of the _magazine class_, for carrying and handling their “advertising pages”--in face of these statements, how did his mental gear so slip, or “jam,” as to induce him to recommend, on page 35 of this _same_ report, the enactment of a law continuing the cent-a-pound rate on _all_ periodicals mailed, except sample copies?

Did he intentionally double cross both himself and his Third Assistant or, in his anxiety to curb the circulation growth of periodicals, _did he forget_ what he and Mr. Britt had said?

What’s the answer?

I give it up. However it may appear to the reader, to The Man on the Ladder it appears that Mr. Hitchcock in his 1910 report has written, figured and “recommended” himself into a situation that is far more humoresque than it is consistent or informative.

Returning to the report of the 1906-7 commission, I will mention a few more of its objectionable recommendations.

As previously stated, the Penrose-Overstreet Commission recommended the enactment of a law requiring that newspapers and other periodicals devote not more than one-half their space to advertising matter (Section 3 of recommended bill, page 50 of report). Thus, in pressing an ill-conceived purpose to restrain the growth of circulation and increase of weight of monthly and weekly periodicals, they would, it appears, cut into that division of their published matter _which produces the greatest revenue to the government for carriage and handling_.

The truth of the last clause preceding has been so frequently and conclusively shown as to require no argument to convince the veriest tyro in knowledge of federal postoffice affairs and the sources of its revenues that the statement made is true. Elsewhere in this volume, however, the truth of the statement will be found fully established.

I confine the application of the statement to monthly and weekly periodicals, to such as are of general circulation. It of course applies, but in lesser degree, to newspapers. The advertising matter published in the newspapers is largely of local character, while that published in our high class monthly magazines and weeklies, in trade journals, etc., is largely general in character. The advertisements published by the former are chiefly those of local merchants and manufacturers and of local, commercial, financial and other interests. On the other hand the advertisements carried by the class of monthly and weekly periodicals indicated represent persons, companies and interests widely scattered throughout the country. Because of this phase in the character of the advertisements carried, the newspapers advertising space is not nearly so large a contributor to the government’s revenues from first, third and fourth class mail carriage and handling as is the advertising space of our high-class monthly and weekly periodicals.

It is true that this 1906-7 commission makes a somewhat _strained_ effort to assign two chief reasons for its recommendation to curtail the space which publishers of periodicals of all kinds may devote to advertising matter.

1. The commissioners appear to have been carrying around with them a stern purpose to suppress what they designate as the “mail order” publications, devoted largely to advertising the wares carried in stock by one or, at most, a few firms that individually or jointly pay for publishing the “weekly” or “monthly”, as the case may be.

There can be no question that there is a large number of such alleged periodicals which have been issued and distributed through the mails for the _plainly_ manifest purpose of advertising the merchandise of those who pay for publishing them. I believe, however, that there are fewer of such fake periodicals enjoying the mail service at second-class rates today than there were ten or fifteen years ago. The Postoffice Department, it must be said to its credit, has “disciplined” a large number of them out of existence or, at any rate, out of the second-class mail rate privilege.

But even if there are more of such fraud and fake periodicals today than formerly, any fair-minded man must agree that it is a very rank injustice to punish--to penalize by harsh restrictions and increased mailing rates--the thousands of legitimate and highly serviceable periodicals for the sins of a comparatively few alleged publications which have abused or are abusing the second-class mail rate privilege.

The department, with its large force of inspectors and investigators, should be able to weed out and exclude such “fixed” periodicals. If it cannot do so it appears to The Man on the Ladder that it would not require a very large amount of industrious, strenuous thinking on the part of six robust, competent legislators to frame a law that would reach the _guilty_ without punishing or crippling the innocent.

2. This commission was also, it would appear, a stickler over _compliance_ with the postal statutes--statutes (those now largely governing) enacted in 1879 and 1885, therefore so antiquated in their wording in several particulars as to be a misfit when attempt is made to apply them to the vast business and varied character of periodicals today.

The statute of March 3, 1879, in its definition of what the law would recognize as a periodical says, among other things, that a periodical must be “_originated and published for the dissemination of information of a public character, or devoted to literature, the arts, sciences, or to some industry_.”

This portion of the statutory definition the Commission seems to have entertained a special grudge against. At any rate it expatiated at considerable length in its report, against the inadequacy, lack of definiteness, etc., of the definition as given. The commission’s chief objection seems to center around the fact that space in periodicals should not be devoted to “commercial ends.”

On page 35 of the report the commission says:

“What was in the mind of the author (of the 1879 statute), is
clear enough. He wished to prohibit the misuse of the privileges
for _commercial ends_ as distinguished from the devotion to
literature, science, and the rest.”

It is possible that they knew what was in the mind of the author of that ’79 statute better than I know it, or than Jim Smith or Reuben Peachtree knows it. It is also possible that they did _not_ know the mind of that lawbuilder any better. While the ’79 statute does not, in many particulars, meet present conditions as they should be met, in defining a publication that should be recognized as a periodical, it requires a supercritical or finicky mind to find much fault with it.

A periodical must be “originated and published for the dissemination of _information_ of a public character, devoted to _literature_, the _arts_, sciences or some _special industry_.”

Now, when one considers the broad application of the word “literature,” the word “arts,” comprehending as it does not only the mechanical and liberal or polite arts, but also _business_, commercial, mercantile and others, including the science of business management, and the term “special industry” and the broad field covered by it--when one considers the broad application of those words, it is a fairly legitimate inference that it was “in the mind” of the writer when drafting that ’79 statute _to give a broad meaning_ and range of service to the publications he intended should be classed as periodicals.

In this connection it is pertinent to ask why periodical publications should not serve, either in their advertising pages or in their “body pages,” devoted to fiction and articles on political conditions, economics, history, the lives and deeds of men, forests and forestry, mills, mines, factory, farm and a vast array of other features, phases and conditions--why, I ask, should our periodicals not give aid by giving space to the great mercantile, manufacturing, financial, agricultural and other interests in this country--_interests which, collectively, have built up a commerce more vast today than that of any other nation of earth_?

Why should not this vast commerce of ours--a commerce in which every man, woman and child of our people is directly or indirectly interested--be aided and served in every legitimate way by our periodicals? Will some _politically_ living member of that Penrose-Overstreet Commission rise and answer? Answer, not in hypercritical nothings, but _straightly and bluntly_?

Another immediately pertinent thing should be stated and another asked here. Among the instruments which have contributed to build up the great commerce of the nation, the American periodical must be recognized--_is recognized_--as one of the most efficient.

Why, then, this recent attempt to cripple, to curb, to lessen, its influence and effort? And why, again, try to curtail its circulation and usefulness by prattle about a postal “deficit” as reason for restrictive departmental rulings and laws when, should such restrictive measures be made effective, a shrinkage of postal revenues and a consequent increase of deficit would, necessarily, result?

Will some one whose thought-dome and _pockets_ are not full of ulterior motives and postal service “deficits” please rise and answer?

Returning to the 1906-7 commission’s agony over the definition in the act of 1879 of what should be considered a periodical and, therefore, entitled to mail entry as second-class matter, it appears that the commissioners, in an apparent _anxious_ anxiety to prove their charge against the author of the act for careless, ambiguous wording, quote a lawyer’s opinion, or part of such opinion, in support of the carefully framed-up “arguments” which it presents in didactic order, both before and after the quotation.

The quotation, it should be noted, is from the brief of the Postmaster General’s counsel in Houghton vs. Payne, 194 U. S. 88, or so the commission’s report designates it.

The point of the commission’s argument appears to be: (1) that owing to its loose, indefinite wording, the act of ’79 was of easy evasion when it came to passing upon the kind and character of matter which might be published in periodical form and mailed at second-class rates, and (2) that, by reason of such loose and indefinite wording, periodical publishers _have_ evaded the intent and purpose of the act--have abused their second-class rate privileges--_have violated the law_.

That, at any rate, I read as the point and purpose of the commission’s somewhat labored, if not strained, argument. They quote (pages 37-38) this counsel in support of that argument. I shall here reprint that quotation as evidence that the publisher of “the universally recognized, commonly accepted, and perfectly well understood periodical of everyday speech” (see fifth paragraph of quotation) _have not violated the law nor sought to do so_.

The quoted opinion presents some italicized words, phrases and clauses as it appears in the report. I have taken the liberty to further italicize in reprinting it:

“The next words only strengthen the same idea--originated and
published _for the dissemination of information of a public
character_. Not, it will be observed, that it shall _contain_
information of a public character, but shall be published _for
the dissemination of_ such public information. Each of these
words is significant, and each gathers significance from its
neighbors. _Dissemination_ is here a word of strong color and
tinges all the rest. It indicates a dynamic process, an agency
at work carrying out a purpose for which it was originated and
set in motion. But strong as the word dissemination is, it is
fortified by the use of the word _information_. An agency for the
dissemination of knowledge for example, might better consist with
the idea of a library of books. But the word is not knowledge,
but _information_. The distinction is obvious. One has the sense
of accumulated stores; the other of _imparting the idea of things
for current needs_. One is, as it were, human experience at rest;
the other, human experience in action. One may be as stale as you
please; the other must be new, fresh, vital. A book, a volume, is
the medium of one; a journal the medium of the other.

“Information,” says the Century Dictionary, “is timely or
specific knowledge respecting some _matter of interest or
inquiry_.” It is, as it were, vitalized knowledge; knowledge
imbued with life and activity. Nor when we come to the next phase
do we find any change in the idea--or devoted to literature,
the sciences, arts, or some special industry. _Devoted_ to
literature. Mark you, not that the publication shall be
literature or contain literature, but that it shall be devoted
to literature. What is meant by devoted? The Century Dictionary
puts it thus: To direct or apply chiefly or wholly to some
purpose, work, or use; to give or surrender completely, as to
some person or end, as to _devote_ oneself to art, literature,
or philanthropy. There again we have the idea of a permanent
continuing entity, a thing existing for a given purpose,
appearing regularly at such intervals (not greater than three
months), as may most effectually meet its needs, in the interest
of art, of science, or literature.

Do we say that a book--a novel, a history, a drama--is devoted to
literature? It is not devoted to literature; _it is literature_,
and it would be an absurdity to speak of it as devoted to itself.
Such a locution would be merely a willful perversion of language.

On the other hand, a review or a magazine may be said to be
devoted to literature with perfect naturalness and propriety.
For we rightly conceive of the review or magazine as one
definite recognizable entity--a continuing whole, originated for
a given purpose, and made up of similar parts having a common
object--literature, for example, or art, or science, or whatever
else it is to which the whole is devoted.

Taking these words, originated and published for, dissemination,
information, devoted to, they all point to one conclusion.
They are, we repeat, strong and pregnant words. There is but
one concept consistent with them all. We confidently submit
that an attentive reading of the statute will leave no doubt
that what Congress constantly had in mind in the creating of
this privileged class of publications was the _universally
recognized, commonly accepted, and perfectly well understood
periodical of everyday speech_.

In establishing the rate for newspapers and other periodical
publications Congress was not seeking to discriminate between
good literature and bad literature or to establish a _censorship
of the press with prizes for merit_. The thing it had in mind
was not the goodness or badness of the information disseminated,
but the _instrumentalities by which that dissemination might
be accomplished_. It was not thinking of all the accumulated
stores of sound and pure literature in the vast libraries of the
world, _but it was thinking of how the mind of an inquiring and
progressive people might be kept abreast of the times in all
departments of human thought and activity_. Congress did not
stand hesitating between a good book and a bad newspaper.

Another position taken by the Penrose-Overstreet Commission, and one which The Man on the Ladder strongly opposes, is that a periodical may not or “must not consist wholly or substantially of fiction.”

The words just quoted are exactly the words used in the sixth paragraph of Section 2 of the bill the enactment of which this commission recommended.

Now, whatever their wit or wisdom, their eloquence or adroitness of speech, their beauty of shape and apparel, or their loftiness of position, that “recommendation” should recommend the personnel of that commission, it seems to me, to some “wronghouse” for a long rest. Their conclusion, their _lex_ recommendation and their “argument” in support, taken collectively, are as thrilling, likewise amusing, as the point in a story “where the woman is turned on and begins to short circuit the hero,” putting it as near as I can remember in the language of Sewell Ford, Bowers, or some other “enlivening writer.”

Lest the reader think my adverse criticism of the commissioners too harsh, or not in keeping with the dignity of the gentlemen composing that 1906-7 commission, I shall here quote a few of the paragraphs it presents as basis for its recommendation. The reader will oblige by carefully noting the italics. They are mine, and, following the quotation, I shall comment on some of those italicized phrasings and statements:

“Not only does the element of fiction constitute the (1)
_propulsive force behind the expansion of second-class matter_,
but it serves at the same time (2) _to undermine the main
statutory check upon the commercial exploitation of the second
class_. Being free to make up a periodical which contains nothing
but fiction, publishers find ready at hand the very thing with
which to interlard and _disguise the advertising matter_, for the
sake of which the publication is really issued. This they could
not do if the advertisement carrying text was required to be news
matter or critical matter of a current nature. (3) _Deprive the
mail-order journals of the right to cloak_ their advertising with
fiction and require them to publish something in the nature of
a newspaper or review with expensive news-gathering apparatus
and an editorial staff and (4) the _mail-order advertising
journal will completely disappear_. It lives only by reason of
two things, the cheapness of its fiction, with which it cloaks
its advertising, and the cheapness of the postal rate which that
fiction cloak enables it to obtain.

“The distinction between the fiction-carrying periodical and the
nonfiction-carrying periodical (5) _is precisely the distinction
between a periodical fulfilling the purposes of the act and the
publication which, although periodical in its form, has no true
periodicity in its essence_.

“Another consequence of the expansive power of fiction is
found in the confusion of the newspaper and magazine types and
the unhealthy exaggeration of the modern newspaper, as shown
especially in its Sunday editions.

“The newspaper is rapidly being extended into the magazine field
at the sacrifice both of the postal revenue and the (6) _true
mission of the newspaper. The miscellaneous matter contained
in the Sunday issue of a newspaper must of necessity lack the
quality to make it socially and educationally valuable._” (Page
37.)

“No fiction necessarily involves the element of periodicity
or time publication which is involved in the very idea of a
newspaper or periodical. It follows, then, (7) _that the real
purpose of the act of March 3, 1879, namely, the diffusion in the
quickest possible way at the smallest possible cost of timely
information among the people, is perverted when the right to
that quick and inexpensive diffusion is extended to the form
of fiction_. But the periodical form devoted to fiction, or in
which fiction constitutes the predominant feature, is the very
form of periodical which serves to swell the second class. The
popular demand for fiction seems to be practically unlimited.
The temptation offered by the low postal rate to supply that
demand through the periodical form is a temptation impossible to
resist.” (Page 39.)

I shall make my comment on the foregoing in the order that its italicized _assertions_ are numbered.

(1) The “element of fiction” has not and does _not_ constitute “the propulsive force” stated. Was it “fiction” that propulsed the circulation of _Everybody’s_? of _Pearson’s_? of _The Cosmopolitan_? of _The American_? of _McClure’s_? of _The Saturday Evening Post_? of _The Inland Printer_? of _The Progressive Printer_? or of scores of other monthly and weekly periodicals whose publishers are independent enough to do their own thinking and courageous enough to publish what they and their representatives found to be the truth?

Was “Frenzied Finance” fiction?

Was Anna M. Tarbell’s exposures of Standard Oil fiction?

Was the exposure of the Waters-Pierce Oil Company’s connection with the great Senatorial “I” of Texas fiction? Was the shake-up of the “Big Three” life insurance companies fiction? Were the hundreds of other trenchant write-ups and exposures of wrong practices, of impositions, of crookedness and _crooks_ in official, corporation and private life, “fiction?”

The man who reads and will attempt to answer any of those questions affirmatively needs to have his brain dusted up--that is, of course, on the presumption that he is not _paid for vocal gyrations_.

And yet it was the telling write-ups and exposures of these independents which greatly increased their circulation and, consequently, increased second-class tonnage.

(2) There is no such “main statutory check.” Moreover, the “commercial exploitation” given in the advertising pages of our standard periodicals to merchants, manufacturers, etc., is, as previously shown, not only just and due to the vast commercial interests of the country, but it is safely within both the letter and the intent of the statute.

(3) As previously intimated, a sextet of experienced legislators who could not frame up a law that would put the “mail-order journals” and other abusers and abuses of the second-class mail-rate privilege out of business without ruinously restricting and obstructing the vast legitimate periodical interests of the country, that sextet ought to do one of two things, either send their thought equipment to a vacuum cleaner to get the dust blown off and then try again, or they should turn the task over to some other legislators. There most certainly are scores of legislators in the Senate and the House fully equipped to prepare such a piece of legislation.

(4) In comment under (3) I noted this “mail order advertising journal.” I did so to indicate that the Penrose-Overstreet Commission, as it appears to me, worked the “mail order” print stuff overtime for the purpose of _reaching certain legitimate publications_.

(5) There is no such distinction between “a fiction-carrying periodical and the non-fiction carrying periodical” as that named. Fiction in a periodical is just as permissible under the act as is the series of war stories, or reminiscences, now (May, 1911), running in one of the magazines; as in the series of articles on the civil war now running in one of the Chicago newspapers, or as would be a series of articles on “the Panama Canal,” on the “Development of the Reaping Machine,” on “Treason in Our Senate,” on “The Depletion of American Forests,” on “The Railroads’ Side of the Railway Mail Pay,” or on any other subject of the historical past or active present.

In fact, most of the current fiction, whether in serial or short-story, published in the standard monthly, weekly and other periodicals of large general circulation presents far more of _truth_ than do the stories, reminiscences and “historical narratives about the civil war,” written forty-five years after the events, and, if based on personal experience, written from fading memory of the facts.

(6) While one may agree with the thought expressed by the commission at (6), its wording expresses a desire or tendency to _censor_ the periodical press of the people by legislative restrictions and departmental rulings which not only contravene the Federal Constitution, but which are inimical to the personal rights and liberties guaranteed by that constitution.

Force is added to this objection to the commission’s recommendation by the fact that it specifically delegates to the Postmaster General the power and authority to decide the kind and character of printed matter which shall have the right of entry at second-class rates, and which complies with the requirements the commission would have written into the law.