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FMMEHS' SCHOOLS WILL
STOP RUSH FOR THE CITY
Governor Eberhart Gives Plans
by Which Farms Can Be
Built Up
ST. PAUL. Minn., Jan. fl—The deeer
tion of the farms, the rush to the cities,
the need for better, more capable brains
on the (treat tracts of land where a na
tion's food supply is produced have been
mighty interesting problems to Adolph
Olsen Eberhart, governor of Minnesota.
He has thought much of those problems,
and out of it all he has devised a plan,
which, he believes, will relieve the con
ditions of today and build the farms up
to the place they should be.
“The repopula*ion of the rural dis
tricts and th* presence or the prospect
of the abandoned farm is a subpect of
interest in almost every state tn the
country,” Governor Eberhart says. ‘The
farmer is the foundation of all our pros
perity. and we should devote more at
tention to him and his surroundings. W e
must bring to the rural common school
the vocational and industrial training
that is so freely offered in the cities, but
which actually reaches only a very
small percentage of our population We
cannot force people baea to the country
unless we make country life attract
ive and make it an advantage for peo
ple to live away from the towns.
MINNESOTA’S LESSON.
“In Minnesota fce are attempting to
build up consolidated schools. We have
outgrown the district school with from
S to 30 pupils. The only way to give the
rural community the educational ad
vantages of the city is to centralise a
school district by uniting these small in
stitutions into one big one, and there
provide teachers of practical agriculture,
manual training, household economics
and ways of making the country home
attractive and to transport pupils who
live at a distance >to and from the
schools.
"There is little in family life on the
average farm today that is attractive.
Many youngsters go to the city to en
joy educational advantages they cannot
get at home and the numerous attrac
tions of the city wean them away from
th* farm. These consolidated school
houses could be made the center of so
cial life for a community. Music and
home decoration could be taught in
them. Farmers could meet there for all
their co-operative organisations and it
could be used for clubs, lectures and en-’
tertainmenis.
TO LOWER LIVING COST.
"The plan would ultimately mean a
lot in stopping the increasing cost ot
living, because th* principal cause of
the latter is the decrease in the num
ber of producers as compared with the
increase i the number of consumers. It
would m e the country attractive
enough t people to stay Ln It.
"We ha * suffered, too. by migration
to Canada. The cause has been the ruin
ing of the soil. In Minnesota many farm
ers have been mining the soil instead
of tilling It. We have to get the soil
back to where It was, for it should yield
from SO to 100 per cent more than it
does. One aim of the consolidated school
would be to teach the care of the
and how to stop the reckless waste that
has been going on for years.”
Rome Registration
ROME. Ga., Jan. 38.—Registration
books for the city primary on February
2«, opened this morning. There will be
3» candidates in the field for seven ai
dermen's places, and a lively campaign
la in prospect.
When The
Stomach Stops
Working Properly, Because There
Is Wind In It, Use Stuart’s
Dyspepsia Tablets to Set
It Going Again.
A Trial rackagv Tree.
The doctors call it flatulency, but un
professional folks know it as ”wind on
the stomach.” and a most distressing
state of things It la It is a serious con
dition of this great motor organ. Al
ways annoying and painful In the ex
treme, at times often leading to bad and
fatal results The siomach embarrassed
and hampered with wind, cannot take
care of its food properly and Indigestion
follows, and this has a train too ap
palling to enumerate. The entire sys
tem is implicated—made an active or
passive factor In this trouble and life
won becomes a questionable boon.
All this is explained in doctor books;
how undigested food causes gases by
fermentation and fomentation in which
process some essential fluids are destroy
ed—burnt up—wasted by chemical action,
followed by defective nutrition and the
distribution through the alimentary tract
of chemically wrong elements and as a
consequence the stomach and entire sys
tem is starved. Plenty of food, you see,
but spoilt in preparation and worse than
worthless.
A deranged stomach is the epitome of
evil; nothing too bad to emanate from
it, but the gas it generates is probably
its worst primary effect and the only
way to do away with this Is to remove
the cause. Stuart’s Dyspepsia Tablets
go to the root of this trouble. They at
tack the gas-making foods and render
them harmless. Flatulency or wind on
the stomach simply cannot exist where
these powerful and wonderworking little
tablets are in evidence
They were made for this very purpose
to attack gas-making foods and convert
them into proper nutriment. This is
their province and office. A whole book
could be written about them and then
not all told that might be told with
profit to sufferers from this painful dis
ease. dyspepsia. > It would mention the
years of patient and expensive experi
ment in effort to arrive at this result—
of failures innumerable and at last suc
cess It would make mention of the
different stomach correctives that enter
into this tablet and make it faithfully
represent all.
Stuart's Dyspepsia Tablets are not
alone intended for the sick, but well
folks as well; for the person who craves
hearty foods and wants to eat heartily
and run no risk of bad effects, they act
like a charm and make eating and diges
tion a delight and pleasure. They keep
the stomach active and energetic and
able and willing to do extra work with
out special labor or effort. Don’t forget
thia Well people are often neglected,
but the Stuart Dyspepsia Tablets have
them in mind /
A free trial package will be sent any
one who wants to know just what they
are. how they look and taste, before
beginning treatment with them. After
this go to the drug store for them;
everywhere, here and at home, they are
50 cents a box and by getting them at
home you will save time and postage.
Tour doctor will prescribe them; they
•ay there are 40,000 doctors using them,
but when you know what is the matter
with yourself, why go to th* expense
of a prescription? For free trial pack
age address F. A. Stuart Co., 215 Stuart
Building. Marshall, Michigan.
THE JOURNAL IS SUSTAINED;
INDICTMENT THROWN OUT OF
COURT BY JUDGE’S DECISION
(Continued from page One column 2 and 3.)
records freely offered them from top to bottom. Finally the grand jury was
summoned. It took up The Journal cae first. Urged by Mr. Akerman it indict
ed The Semi-Weekly Journal without ever hearing from a single individual con
nected with The Journal who knew anything about the questions involved, with
out even summoning a single one.
Without giving the officials of the paper the slightest c*?**c* co show the ab
surdity of the charge, which could have been made manifest by ths examination
of anybody acquainted with the facts, the paper was indicted for the heinous
crime of “conspiracy to defraud the government.”
Whether or not the gentlemen who composed the grand jury regretted al
most immediately the hasty action they had been led into, cannot be stated,
but certain it is that when the time ca me to indict the Constitution they de
manded that the matter be approached in an entirely different way, and that
when they did dispose of that matter, the charges fell to the ground, just as
The Journal charges fell when they w ere subjected to the light of day. ,
GEORGIA WAITS FOR
COLLEGE ON WHEELS
( Continued from Page One )
era and others interested may attend.
I feel that all fa’rmers and business
men of Stillmore and vicinity will be
interested in your work and will gladly
avail themselves of the opportunity of
hearing your lectures and seeing the
exhibits.”
E. H. Clay, mayor of Marietta,
writes: “The city of Marietta ap
preciates very much the fact that the
agricultural train will stop in Mari
etta on the !3rd of March. I will
immediately take up the matter with
the city council, board of trade, news
papers and superintendent of our pub
lic schools, and I assure you that
Marietta will give you a hearty wel
come.”
J. F. GRAT INTERESTED.
J. F. Gray, secretary of the Savan
nah chamber of commerce, offers co
operation and support.
“Tou are doubtless aware of the ef
forts which have been made in Chat
ham county for the past few years to
wards agricultural development,” says
he. ’’We feel that the coming of this
train to Savannah would not only ac
celerate this development but would
be of Incalculable advantage to those
who are already engaged in agricul
tural pursuits in Chatham ana con
tiguous counties.’ 1
Mayor Wesley Shropshire, of Sum
merville. writes: “We gladly receive
the message and trust nothing may
prevent your coming. Our people will
take care x>f your coming.”
Hon. N. H. Ballard, superintendent
board of education, Brunswick, says:
'lt will be my pleasure to co-operate
tn every way in making your visit
to Brunswick successful and pleas
ant.”
County School Commissioner B. B.
Bush, of Miller county, writes:. ”1
can assure you that the information
of your proposed visit through my
town is a source of pleasure to me.
Kindly advise me the exact date of
your appearance in Colquitt as early as
possible as I want a large turnout of
school children to meet you.”
Mayor D. A. Carmichael, of Union
City, writes: “It affords me great
pleasure to lend you every assistance
possible in having a good audience for
you at Union City. We will have the
school children from the sixth grade
up with their teachers to meet the
train.”
TO OSLERIZE ANIMALS
MEETS WITH PROTEST
NEW TORE, Jan. M.—The Society for
ths Prevention o* Cruelty to Animals
has met a rebuff from the New Tork
city authorities In ijs effort to have
all wild animals in the city zoos chloro
formed when they reach the age of 25
years. The park commissioner in his re
ply to the society’s petition, declares
that he is convinced after an investiga
tion that no such rule should apply in
all cases. He would sooner see the Os
ler theory of man's years of usefulness
adopted, he adds. •
In support of his position, the com
missioner cites a 38-yegr-old rhinoceros,
“Old Smiles," who is in the Bronx zoo
and is regarded as still in his prime,
while Nellie, a Cap* Buffalo with pink
skin and white hair, has been in the
park more than 30 years, and is still
well preserved. There are several ani
mals in the menageries which have
passed the 8. P. C. A.’s average and are
considered sound and healthy. To kill
them, the commissioner thinks, would be
wanton destruction as their longevity
is proof that they are contented under
good treatment.
ARRESTED~FOR theft
OF $2,000 OF SILVER
MACON, Ga. Jan. 38—Bert Vicery,
alias Bert Peoples, of Jacksonville, Fla.,
was arrested in Jacksonville last night
on information furnished by Macon po
lice, charged with the theft of $2,000
worth of silverware from the home of
Walter Porter, of Jacksonville.
Some time ago Vlckwy and one Fred
Johnson were arrested here on suspicion,
after selling. It Is claimed, much silver
ware to women in the restricted district.
Nothing could be proved at the time and
both were released.
The silverware sold here was taken
from the purchasers and has since been
identified as the property of Porter, of
Jacksonville. The drag net is out for
Johnson, but be has not- been located
aa yet.
AUGUSfA~WILLrHAVE '
FLEET OF AEROPLANES
AUGUSTA. Ga., Jan. 28-That a fleet
of three aeroplanes will be stationed in
Augusta, Including the one used by
Frank Coffyn at the Wright School of
Aviation, within three weeks, is now as
sured. Starling Burgess and George
Manner, Boston millionaires, and pupils
of the Wrights, having ordered their
machines shipped to this place as soon
as they can be made ready
Both machines will be of the Wright
biplane type and made especially to the
order of these individuals. Mr. Burgess
is studying the Wright machine with
a view to its manufacture under a li
cense. Another Boston pupil. Greely 8.
Curtiss, will arrive in a short time.
TENNESSEE IS SUED
BY ARKANSAS STATE
MEMPHIS. Tenn., Jan. 26.—Carruthers
Ewing, of Memphis, has announced that,
acting as solicitor for th* attorney gen
eral of Arkansas, he has filed suit in
the United Statee supreme court against
the state of Tennessee involving the
right ot jurisdiction ove? 12,000 acres of
land, the purpose primarily being to
have the boundary line between the
two states definitely established.
UNIFORM SIDEWALKS
FOR THE ENTIRE CITY
NEW LONDON, Conn.. Jan. 26.-As a re
sult of action taken by the common coun
cil New Ixindon will be one of the first
cities of the United States to have uni
form sidewalks throughout. The council
will lay 30 1-2 miles of granolithic walk
at an expense of $144,000. Work will be
gin shortly and two years will be re
quired before it is completed.
THE ATLANTA SEMI-WEEKLY JOURNAL, ATLANTA, QA„ TUESDAY, JANUARY 31, 1911..
PIEDMONT AND GORDON
TO HAVE ANNUAL DEBATE
DEMOREST, Ga.. Jan. 27.—The third
annual debate between the Academy de
partment of Piedmont college, Demorest,
and Gordon institute, Barnesville, will
take place in Barnesville March 24. The
subject of the debate is: "Resolved,
That United ♦ States senators should be
elected by popular vote.”
Gordon will sustain the affirmative side
of the question, and will be represented
by W. D. Brannen, of Statesboro, and
G. H. Hays, of Covington. Piedmont
will be represented by Ed Keener, Dem
orest, and Herbert Green,/ Anderson,
S. C.
Piedmont has been successful in the
two preceding debates, and much inter
est is felt in both schools as to the
result of this which, if won by Pied
mont, will give them three out of five
debates planned.
HE MUST PAY DUTY~
ON PANAMA HATS
NEW ORLEANS, Jan. 27.—Dana
G. Putnam, of Los Angeles, ran afoul
of the United States custom officers
here yesterday and the experience will
probably cost him $257.55.
Putnam arrived on the steamer
Atenss from Colon, and failed to de
clare six Panama hats which the in
spector discovered in the pocket of
Putnam’s rain coat.
When the inspector drew the hats
from their hiding place Putnam de
clared he did not know goods from
Panama were dutiable. The explana
tion was not satisfactory to the in
spector, who placed the case before
the United States commissioner. If de
clared, the duty on the bats would
have been $17.85.
BARNESVILE CHAMBER
HAS NAMED SECRETARY
BARNESVILLE, Ga„ Jan. 27.—Wil
liam Wakefield, of Boston, has been se
lected as the permanent secretary of the
Barnesville Chamber of Commerce, and
has accepted the position. He is strong
ly recommended as a suitable man for
the place and has made a good impres
sion here. The committee authorized to
carry on negotiations took time an!
considered a number of gentlemen be
fore deciding (*x>n Mr. Wakefield.
The business men of Barnesville have
put up the money for supporting the
organization for the next twelve months
and a persistent effort will be made to
boost his city and section.
HITCHCOCK ARRESTED
FOR CHICAGO THEFT
MOBILE, Ata., Jan. 27.—Sharp Hitch
cock, strike-breaking garment worker,
whose home is in this city and who
was arrested yesterday in Chicago, 111.,
on the charge of burglary following a
desperate battle on an elevated train
when he attempted to shoot Walter
Wright, of that city, his captor and ac
cuser, has a long police record here.
Five years ago Hitchcock was convict
ed and sent up for four years at Atlanta,
Ga.. prison for robbing a postoffice and
breaking open United States mail boxee,
and while serving sentence confessed to
robbing a Mobile jewelry store of thou
sands of dollars' Worth of diamonds.
CHINESE COOLIES DEATH
FROM NATURAL CAUSES
WASHINGTON, Jan. 27,-The Chinese
coolie whose death was believed to have
been caused by violence and which was
the direct cause of the riots at Han
kow on Sunday, died from natural caus
es, according to the findings of the in
quest held by the Chinese officials over
the body.
This fact has been reported to the
state department in a cablegram from
American Consul General Mosher, at
Hankow. Chinese residents suspected the
coolie had been killed by the police. This
led to the riots, which resulted in the
death of seven persons, and the wound
ing of 30.
“PONfOON”PEACdCK/’
WAR, VETERAN DEAD
CHICAGO, Jan. 27.—Robert Peacock,
known among veterans of the civil war
aa "Pontoon Peacock,” died here yester
day, after a year's illness.
Mr. Peacock was a member of the
famous “Sturges Rifles.” He had charge
of the force which laid the corduroy
road and built bridges across the Chiea
hominy swamps, which enabled General
Franklin to cross and fortify Malvern
Hills. The feat earned for the construc
tor the nickname of “Pontoon Pea
cock.”
OLIVER P. SMITH CAUGHT
IN INDIANAPOLIS, IND.
CINCINNATI, Jan. 27.—Oliver P.
Smith, for whom the police have been
searching since the murder of his wife
at their homo in this city last Wednes
day night, has ben arrested in Indianap
olis, Ind., according to information re
ceived by J the local polfce today. Mr.
Smith was a lodging house keeper and
mission worker. .Immediately after the
klling Smith disappeared. A warrant
for his arrest on the charge of murder
was sworn out yesterday.'
' FLORIDA’S
DINSMORE FARMS
Are being «o|<! by old-time, well-known
Florida people, not speculators. These farms
are almost within the suburbs of Jackson
ville, H«.—only 10 miles. Two (2) rail
roads, with stations, on the property; water
transportation and two paved automobile
roads. On the main line of the "New York
to Florida Limited.” Best lands and best
location In the State for fruits, nuts and
vegetables. The price is not padded; you
get in on the ground floor. Therefore, we
will sell you a farm at first cost. S3O an
acre, and on the easiest of terms: $lO cash
and $lO per month, without interest; posses
sion given at once; write us. The Dinsmore
Company. J. B. Dunn. Secretary and Gen
eral Manager. Jacksonville. Fla.
A g Aft MONTHLY and expenses to trust
aS IUU wor tby men and women to travel
“ ■ "we „nd distribute samples; big min
ufseturer. Steady work. S. Scheffer, Tress.,
W.L. 106, Chicago.
HECimcrn WILL BE
HURRIED THRDUGH Bl TIFT
Will Call Extra Session If Pre
sent Congress Does Not
Take Action
WASHINGTON, Jan. 28.-To carry into
effect the terms of the reciprocity agree
ment concluded by representatives of
Canada and the United States last
Thursday, and which was placed before
congress that day by President Taft with
a special message urging legislation on
the subject, the first move was made to
day when Representative McCall, of
Massachusetts a member of the ways
and means committee of the house, pre
sented the administration bill on the sub
ject. The bill was referred to the com
mittee on ways and means, which will
take it up next week.
M’CALL TO DIRECT.
The introduction of the bill by the
Massachusetts member, instead of Mr.
Payne, of New York, chairman of the
ways and means committee, occasioned
some comment. It is interpreted in many
quarters to indicate that Mr. McCall will
take a prominent part in steering the
bill through the committee *nd in en
gineering its progress upon the floor of
the house.
While members of the committee which
has the first consideration of the new
trade agreement decline to discuss their
prospective attitude upon the measure,
it has become fairly well established
that the bill to put the new rates into
effect will pass through the commitee
and come upon the floor of the house
within a comparatively short time.
The first move of the committee will
be to take up the bill at the meeting
early in the week and determine if any
hearings will be held upon the measure.
It is the opinion of several members of
the committee now that if certain dele
gations representing industries seriously
affected by the lowering of tariff rates
wish to be heard by the committee, gn
opportunity will be afforded them before
any final action is taken.
SHORT HEARINGS.
There will be no extended hearings,
however, and no opening of the bars to
all the tariff arguments that might be
introduced for and against the terms
of the new commercial arrangement.
Members of the committee believe that
the facts bearing upon the various items
would be fully elicited In the hearings
held during the preparation of the
Payne-Aldrich bill; and that to renew ex
tensive hearings upon the reciprocity
agreement would needlessly and danger
ously delay Its consideration by the
house.
FUTURE UNCERTAIN.
The form of the bill introduced by Mr.
McCall Is such that its future considera
tion in the house is a matter of uncer
tainty at the present time. As a bill
*to raise revenue it will be subject to
amendment and change, unless a rule of
cloture is first put through the house
prohibiting amendments and forcing the
house to vote upon the reciprocity agree
ment as a whole.
Thme negotiations with Canada result
ed in a definite and concrete arrange
ment which can not be changed in any
particular without upsetting the balance
and the effectiveness of the whole agree
ment.
For this reason It is the opinion of
those wiio favor the approval of the Can
adian pact that the ways and’ means
committee aad the rules committee will
have to prepare ’g rule to precede the
bill into the house, providing for its
consideration as a whole and without
amendment.
The Impression has been strengthened
that President Taft’s determination to
secure action upon the reciprocity meas
ure at this session is such that he will
resort to an extra session if it becomes
necessary to bring the matter to final
consideration, in both houses of con
gress. The extra session talk has caused
no little worry at the capitoi.
TRADE FIGURES
Figures of the 1910 trade movements
between Canada and the United States
in the more important of the articles
named in the pending reciprocity agree
ment were completed today by the bu
reau of statistics of the department ot
commerce and labor. They are:
IMPORTS
Article, boards, deals and planks,
value $17,429,124; flaxseed or linseed,
$6,430,509; wood pulp, $4,966,536; coal,
$4,508,120; fish, $3,613,688; printing pa
per, $1,983,972; cream, $1,884,173; laths,
$1,707,069; shingles, $1,470,893; hay, sl,-
464,429; flour, $850,246;. horses, 8815,
819; sheep, $357,190; oats, $249,859;
fruit and nute. $176,273; coke, $169,529;
butter, $137,562; cattle, $121,303; wheat,
$119,898; potatoes, $29,000.
EXPORTS.
Coal, $32,515,003; boards, deals and
planks, $7,610,201; fruits and. nuts, $183,-
012; corn, 35,567,199; automobiles and
parts of, $6,006,725; agricultural imple
ments, $4,321,198; horses, $3,262,740; coke,
$2,876,700; traction engines, $2,186,588;
timber, $1,638,742; pork, pickled. $1,296,-
193; cottonseed oil, $1,111,443; lard. $1,086,-
635; whettjt, $1,063,403; clocks and watches,
$969,837; tinplates, $881,719; barbed wire,
$766,491; fish, 567,949; hams, $480,095; print
ing paper, $446,614; cattle, $318,072; bacon,
311,192; staves. $234,489; flour, $192,043;
hay, $161,435; potatoes, $155,814; butter,
$59,064; windwills, $55,635; woodpulp, $49,-
486; fresh beef, $14,085.
' IS EPILEPSY CONQUERED?
New York Physicians Have
Many Cures to Their Credit
NEW YORK, Jan. 30.—Advices from
every direction fully confirm previous
reports that the remarkable treatment
for epilepsy be'.ng administered by the
consulting physicians of the Dr. Water
man Institute is achieving wonderful re
sults. Old and stubborn cases have been
greafly benefited and many patients
claim to have been entirely cured.
Persons suffering from epilepsy should
write at once to Dr. Waterman Insti
tute, 122 East 25th St., Branch 16, New
York, for a supply of the remedy which
is being distributed gratuitously.
OPEN SESSION HELD”
ON LIQUOR MEASURES
MONTGOMERY, Ala., Jan. 26.—The
temperance committee of the house of
representatives will hold an open ses
sion a$ the capitoi tonight to hear all
persons who may desire to speak on the
administration local option bill, intro
duced in the legislature this *ek. In
dications are that the session will be a
rousing one, with pro and anti-llquor
forces well represented.
Chairman John V. Smith, of the com
mittee, announces that it is desired to
give the discussions the widest public
ity in order that everyone might know
what is being done.
Dufour Withdraws
NEW ORLEANS. Jan. 26—Judge H. L
Dufour, of the state appellate court, late
last night Issued a statement withdraw
ing his name as a candidate for the
Democratic nomination as associate 'jus
tice of the state supreme court, to suc
ceed Judge Nicholls, resigned. Judge W.
B. Somerville is the only remaining can
didate for the honor. The primary' is
set for February 7.
HERE IS JUDGE NEWMAN’S DECISION;
IT VINDICATES SEMI-WEEKLY JOURNAL’S
RIGHTS AS AN PAPER UNDER LA W
Continued from Page 1, Columns 4, 5 and 6.
sent from a news agency to actual subscribers thereto, or to other news agents shall entitled to
transmission through the mails at two cents per pound, or a fraction thereof, such postage to be
y prepaid, as now provided by law.
Sec. 14. “That the conditions upon which a publication shall be admitted to the second
class are as follows:
First. It must regularly be issued at stated Intervals, as frequently as four times a year,
and bear a date of issue, and be numbered consecutively.
Second. It must be Issued from a known office ot publication.
Third. It must be formed of printed paper sheets, without board, cloth, leather, or other sub
stantial binding, such as distinguish printed books for preservation from periodical publications.
/ Fourth. It must be originated and published for the dissemination of information of a public
character or devoted to literature, the sciences, arts or some special industry, and having a legiti
mate list o£ subscribers;
Provided, however, that nothing herein contained shalL.be so construed as to admit to the sec
ond-class rate regular publications designed primarily for advertising purpose, or for free circula
tion, or for circulation at nominal rates. -
Subsequently in the act of congress approved March 3rd, 1885 (25 Stat, at Large, 387) it was enacted:
all publications of the second-cluss, except as provided in section twenty-five of said act,
when sent by the publisher thereof, and from the office of publication, including sample copies, or
when sent from a news agency to actual subscribers thereto, or to other news agents, shall on and
after July Ist, 1885, be entitled to transmission through the mails ato neent a pound or frac
tion thereof, such postage to be prepaid as now provided by law.”
in the act of congress approved June 9th, 1884 (23 Stat, at Large, 40) there is this provision:
“That the rate of postage on newspapers and periodical publications of the second-class, when
sent by other than the publishers or news agents shall be one cent for each four ounces or frac- f
tional part thereof, and shall be fully prepaid by postage stamps affixed to said matter.”
These three acts, so far as I am aware, are the only laws, that is, the only acts of congress, material to the
question involved here. „
AS TO POSTAL REGULATIONS.
It will be seen that the only substantial difference between the act of 1879 and that of 1885 is that
the postage, which was two cents per pound under the former act, was reduced by the latter act to one cent
per pound.
A rule was promulgated by the postmaster general, taking effect, as I undrestand It, January Ist, 1908
(see the postal laws and regulations pertaining to the second-class of mall matter. Corrected to March Ist,
1910, page 20), which is as follows: .
“Sample copies of publications entered as second-lass matter shall be accepted for mailing at
the second-class postage rate of one cent a pound to the extent of ten per centum of the total
weight of capies mailed to subscribeds during the calendar year, etc., etc.”
This is the regulation referred to in the indictment, which, as has been stated, it is conceded is not of
great materiality here, and Is only set out in the indictment as a matter of inducement. It is unnecessary,
therefore, to determine whether the regulations of the postmaster general, changing the number of sample
copies which may be mailed as seeond-class matter at one cent a pound from one hundred per centum, as was
formerly the rule, to ten per centum, as provided in the mote recent rules. Is a reasonable regulation and con
sistent with the acts of congress of 1879 and 1885-
UNNECESSARY TO DETERMINE.
That the postmaster general may make rules and regulations not antagonistic to or inconsistent with
law, that is with the acts of congress, which would be binding and effective, and in some cases, have the
force and effect of law, will be readily conceded. Whether this regulation changes the law to an extent whfch
would be beyond the power of the postmaster general it will be unnecessary now to determine in view cf
what is conceded by counsel for the government.
The distinct question Is, therefore, whether, under the facta set out in the indictment, copies of Ths
Semi-Weekly Journal, which it was proposed to mail, and which were mailed, were entitled to the one qfent
per pound rate. 4
The copies of The Semi-Weekly Journal jailed, it is not, and there is no charge to the contrary, were
additional copies of the regular Semi-Weekly Journal. , This publication had all the qualifications necessa
ry to admit it to the mails* as second-class matter, un d it had been so admitted.
INDICTMENT CHARGED NO VIOLATION. •
Under the acts of 1879 wnd 1885, all publications of the second class (as this was), when sent
from the office of publication, are entitled generally to transmission through ths mails at 1 cent a pound.
The act of 1879 expressly provides that nothing therein contained ’ sh«ll be so construed as to admit to
the second class rate regular publications designed primarily for advertising purposes, or for free circu
lation or for circulation at nominal rates.” There is nothing whatever In the indictment that charges
expressly, even if it could be construed to charge the same interentlally, any of the three requisites tb
exclusion from the second class rate contained in this proviso. It does not charge that this publication
,wa» “designed primarily for advertising purposes” or that it was “for free circulation” or “fdr circulation
at nominal rates.” The only thing that Is charged, fio far as it can 'be said to hint at this matter at all,
is that these papers were not sent to regular subscribers. It has not been contended here, as I under
stand it and it certainly could not be plausibly contended, that under the acts of 1879 and 1885 papers
which may be sent by the publisher from the office of publication under the second class rate are
to subscribers only. It is only provided “that when sent from news agencies to actual subscribers, etc.,
and not when sent by publishers from the, office of publication. ||
I have been handed, by Mr. Akerman, specal assistant to the attorney general in the prosecution of J
this case a pamphlet published by authority, and containing a letter from the third assistant postmastefl
general to Senator Bacon, with the statement on his . part (concurred in by defendants’ counsel!
It could be properly referred to and considered as a public document by the court in this case. In his lettoM
the Hon A L Lawshe, third assistant postmaster general, says: “It has long been the policy of tbV
department and in my opinion very properly so, to regard as a component part of a legitimate list oM
subscribers’ copiss sent as bona fide gifts from one person to another, copies sent to advertisers to
the insertion of their advertisement and copies sent as exchanges with other publications of the second ]
class and copies sent as complimentary by the publisher to his friends, and there has been no cnange in 1
policy in that regard where such practices are not for the purpose of forcing circulation. Further
more, copies ma.lled in fulfillment of so-called campaign and political subscriptions will continue to be
accepted at the publishers* usual second class rate.” .
It seims perfectly clear, therefore, that there are many ways in which, taking the views of the third
assistant postmaster general in charge of these matters, publications could £o through the mails to others
; han regular subscribers and* be entitled to the 1 cen t a pound rate.
THE POSTMASTER GENERAL’S OPINION.
At another place in the publication to which I have referred, containing the letter to Senator Bacon,
Is an address hy Mr. Lawsh*. third assistant postmaster general, published and issued by the postoffice
department in which he uses this expression: “Speaking for the postmaster general, as well a<s for
myself I may say that legitimate publishers have nothing to fear from the present administration of the
Dostoffi’ca department. By legitimate publishers I mean that class of publishers who conduct a clean
business in a clean way, and do not attempt, by questionable practices, unlawful subterfuges, and covert
methods to evade a reasonable construction of the law excluding from the pound rate publications designed
nrimarlly for advertising purposes for free circulation or for'circulation at nominal rates.” So that the
purpose of the postoffice department, as thus shdwn, is to apply the proviso to the act of 1879 and
exclude from the second class rate "publications designed primarily for advertising purposes, for free
circulation or for circulation at nominal rates." • it is manifest, therefore, that if to deprive the
oublisher of the right to the 1-cent a pound rate, it must be issued and circulated for one of the
numoses named, there Is no real offense charged tn this indictment. It would certainly not be a con
spiracy to defraud based on a scheme which sought only to do that which the law allowed, and that is
conceded by the able counsel for the government here.
I think we are all agreed that if, under the facts set out In this indictment, it does not appear with
reasonable certainty and clearness that'this publication was not entitled to the pound rate, that is the
rate of 1 cent per pound, no offense is statA under
and "schemes to defraud” are not sufficient unless the facts set out in connection therewith Justify such
charges. / ' •. L- ‘ t
FAILS TO CHARGE AN OFFENSE.
I do not pass upon any of the other questions ip this case, which it is unnecessary to decide. I
do hold however, that this indictment is insufficient because it fails to charge an offense under the proviso
to the act of 1879 that is, that the scheme set out contemplated the sending of papers through the mail*
not only to others than regular subscribers, but also that they were designed primarily for advertising
numoses or for free clrcutMlon, or for circulation ait nominal rates. These are the only instances, under
the acts of congress, In which a publication having the other requisites and admitted to the second class,
would violate the law by mailing under the second class rate.
In a case like this charging a criine under section 5440 of the revised statutes, it should not be nec
essary to aether the cape from mere inference, but it should charge, with reasonable certainty, that
which would constitute ah offense under the law. Many authorities might be cited in support of this. In
United SWtes vs. Mann, 95 United States 580. this is said by Mr. Justice Clifford, speaking for the
supreme court (p. 583):
Offenses created by statute as well as offenses at common law consist, with rare exceptions,
of more than one ingredient, and the rule is universal, that every Ingredient of which the offense ,
is composed must be accurately and clearly expressed in the indictment or information, or the
pleading will be held bad on demurrer. United States vs. Cook, 17 Wall, 168; 1 Bishop, Cr. /
Pro (2d ed.), sec. 81; Archb. Cr. Pl. and Ev. (18th ed.), 54.
In Pettibone vs. United States, 148 U. S. 197, Chief Justice Fuller, delivering the opinion of the court, says
this, which is pertinent here:
The general rule with reference,to an indictment is that all the material facts and circum
stances embraced in the definition offense must be stated, and that, if any essential ele
ment of the crime is omitted, such omission cannot be supplied by intendment or implication. The
charee must be made directly and not tfterentlally or byway of recital. United States vs. Hess,
124 U S 482 486 And in United States vs. Britton, 108 U. 8. 199, it was held in an indictment
for conspiracy’ under section 5440 of the revised statutes, that the conspiracy must be sufficiently
charged, and cannot be aided by averments of acts done by one or more of the conspirators in fur
x therance of the object of the conspiracy.
NO EVIDENCE OF CONSPIRACY.
The attention of the court has been called to a regulation In "the postal laws and regulations pertaining
to second-class of mail matter,” referred to above. In which it is said, in concluding a rule, (p. 21: ‘'The
regular mailing of large numbers of such copies tends to show that the publication is ‘designed primarily
for advertising purposes or for free circulation or for circulation at nominal rates.’ There is nothing
whatever in this Indictment to show .that The Semi-Weekly Jourpal “regularly” did what they are charged
with or that the defendants conspired to do so regularly. Only three Instances are set out in the overt acts.
This regulation seems to be notification to publishers as to what would exelude them from the second-clais
rate, or at least, would cause inquiry as to whether they were entitled to it. It clearly evidences, however,
the fact that the postofftce. department will test the right to the second-class rae by the proviso to the act
of 1879, which lias been several times referred to, and that they will not give the second-class rate unless
they come within the terms of this proviso.
I have gone over the rules and regulations of the postofice department and all the literature which has
been handed me, and which it is agreed may be properly used in passing upon this demurrer, and it appear*
very clearly that the main purpose of the postoffice department is to exclude from the second-class rate what •
are sometimes called “fake” publications, that is, publications designed primarily and mainly for advertising
purposes of for free crculation or for circulation at nomnal rates, and not to exclude well recognised news
papers, regularly published and Intended for the dissemination of news, or for the discussion of current top
ics and intended to contain interesting reading matter, and I v think it may be seriously doubted whether
the proviso to the act of 1879 wag Intended for real newspapers of the class Indicated, or to additional copies
of such newspapers, sent to other thin regular daily, weekly or semi-weekly subscribers. It is unnecessary
to determine this latter proposition, however, because, as I have said, it certainly does not apply to addi
tional copies of a real, genuine newspaper unless the same were intended primarily for advertising pur
poses, or for free circulation, or for circulation at nominal rates.
In my Judgment the Indictment fails to state a case under the law, and the demurrer to it must be usa>
tained for the reasons above given.
This 30th day of January, 1911.
_y.. U. S. Jud ge. f .
3
