
    UNITED STATES v. ATLANTA JOURNAL CO.
    (Circuit Court of Appeals, Fifth Circuit.
    October 7, 1913.)
    No. 2,421.
    Post Office (§ 15) — Postage—Change of Rate — Authority of Postmaster General.
    The regulation promulgated by the Postmaster General December 4, 1907, amending rule 456 of the Postal Laws and Regulations, to the ef- -. feet that sample copies of a publication of the second class shall be ac-. cepted for mailing at the second-class rate of one cent per pound fixed by Act March 3, 1885, c. 342, § 1, 23 Stat. 387 (U. S. Comp. St. 1901, p. 2669), to the extent of 10 per cent, of the total weight of copies mailed to sub-, scribers during the calendar year and requiring a 'higher rate on any. excess above such 10 per cent., is an unauthorized restriction of the right, given the publisher by the statute- to mail both copies to subscribers and sample copies at the one-cent rate without any limitation as to the quantity.
    [Ed. Note. — For other cases, see Post Office, Cent. Dig. § 22; Dec. Dig. § 15.]
    In Error to the District Court of the United States for the Northern District of Georgia; Don A. Pardee, Judge.
    Action at law by the United States against the Atlanta Journal Company. Judgment for defendant on demurrer, and plaintiff brings error.
    Affirmed.
    The following is the opinión of the District .Court (Pardee, Circuit Judge):
    The facts are that in 1908 the Atlanta Journal Company sent through the mails for delivery to subscribers 691,112 pounds of the semi weekly Journal, and also during the same year sent through the mails for transmission and delivery to divers persons, not subscribers or news agents, and as sample copies, 113,706 pounds of the semiweekly Journal; for and on all of which, as publications of the second class, the Journal Company paid the postage of one cent per pound, and as provided in the act of Congress approved March 3, 1885, 23 Stat. 387.
    Now it seems that on December 4, 1907, the Postmaster General promulgated a regulation, taking effect January 1, 1908, amending rule 456 of the Postal Laws and Regulations and pertaining to second-class mail matter, to the effect that sample copies of publications entered as second-class matter shall be accepted for mailing at the second-class postage rate of one cent per pound to the extent of 10 per centum of the total weight of copies mailed to subscribers during the calendar year.
    This rule has many detailed provisions relating to sample copies and the handling of the same, particularly providing that should a publisher offer for mailing, as sample copies, copies in excess of the amount above described, the postmaster shall require on such excess a deposit of money sufficient to cover postage at the transient second-class rate of one cent for each four ounces, etc., and report the matter, with details, to the Third Assistant Postmaster General.
    According to this rule, the Journal Company was entitled to mail as sample copies of the semiweekly Journal, during the year 1908, 69,111 pounds of mail matter. The company actually mailed as sample copies of its publication 44,595 pounds in excess of the 10 per cent limitation. Upon this excess the Journal Company paid postage at the rate of one cent per pound, and the matter was transmitted through the mails; and this suit is brought to recover the difference between that one cent per pound rate and the transient second-class rate of one cent for each four ounces.
    It is inferable from the declaration, and it is admitted at the bar, that the copies of the semiweekly Journal transmitted through the mails for which the excess of postage is claimed, were sample copies in fact, and entitled to be carried in the mails. as sample copies, within the purview of the act of Congress of 1885, unless the regulation promulgated by the Postmaster General in December, 1907, deprived them of that character and made them liable to a postage rate of four cents per pound, instead of a rate of one cent per pound as provided in the act of 1885. The regulation does not specifically define sample copies nor change the actual character of the matter. It restricts the quantity of sample copies publishers of publications of the second class may send through the mails as “sample copies” at one cent per pound. In effect, the regulation restricts the publisher’s rights under the statute, changing to his injury both classification and rate, and this is beyond the authority of the Postmaster General. Adjudged cases to this effect are numerous, but I am satisfied with Payne v. Railway Publishing Go., 20 App. D. C. 581; Review of Reviews Co. v. Hitchcock (C. C.) 192 Fed. 360. And see Houghton v. Payne, 194 U. S. 88, 24 Sup. Ot. 590, 48 É. Ed. 888.
    The demurrer to the declaration is sustained.
    Alexander Ackerman, Sp. Asst. Atty. Gen., of Macon, Ga., for the United States.
    Alex. C. King, of Atlanta, Ga., for defendant in error:
    Before SHELBY, Circuit Judge, and FOSTER, District Judge.
    
      
      For other cases see same,topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes
    
    
      
      For other cases see same topic & § nümbeh in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The judgment of the District Court is affirmed.  