Or again:

"To engage oneself, or to give one's formal consent, by signing any pledge, contract, deed, document, or written statement of any kind *; to pledge oneself, especially by writing, to pay a given amount of money. To authorize the entry of a name on the list of those who agree to receive and pay for an article, as a periodical, an engraving, or a book sold by securing purchasers in advance of delivery." (Standard Dictionary.)

To become a subscriber to a newspaper includes some voluntary act on the part of the subscriber, or something which is in effect an assent by him to the use of his name as a subscriber." (Ashton v. Stoy, 96 Iowa, 197, 201, 64 N. W. Rep. 804.)

Thus, a subscription to the capital stock of a corporation implies an agreement to take and pay for it. But if the steps taken, although informal, are treated by the corporation and the subscriber as sufficient, they will be treated as binding. (Crissey v. Cook, 67 Kansas, 20, 23; Nugent v. Supervisors, 19 Wall. 241. )

The distinction between circulation among paid subscribers and the casual or uncertain distribution to other purchasers has been recognized by the Post Office Department in its Regulations (edition of 1907, sec. 469), where, after pointing out that the news agent's right to mail second-class publications at the pound rate of postage, under the provisions of the act of March 3, 1885 (chap 342), extends only to actual subscribers thereto and to other news agents for sale, the Regulations state that

"Actual subscribers to second-class publications are persons who personally order the same for a period of at least three consecutive issues."

Subscribers, therefore, are clearly those who have by agreement undertaken to receive and pay for the publication for some specified period of time, as distinguished from casual purchasers who come under no obligation to take and pay for the publication in advance of its delivery. It is immaterial whether this subscription is for one or many copies. Subscriptions may be direct or through an agent, but the delivery to agents for sale or distribution,

unaccompanied by agreement to pay for any definite number would not be included within the term "subscribers."

With respect to publications seeking the privilege of the second-class mail rate, as shown below, the Postmaster General is required to determine certain matters of fact upon which depends the enjoyment of that privilege, among which is the question whether or not there is "a legitimate list of subscribers" to the publication. (See 20 Op., 384.) But the clause in the act of 1912 under consideration devolves no such duty upon you. It makes it the duty of the editor, publisher, business manager, or owner to file a sworn statement containing among other things the matters above specified, on blanks furnished by the Post Office Department. These blanks should call for the information required by the statute-no more, no less. If the statement is not filed as required by law, or if the information required is not what the statute demands, the publication may be denied the privilege of the mail if it fail to comply with the provisions of the law within 10 days after notice by registered letter of such failure. While the statute does not expressly make it the duty of the Postmaster General to give such notice, yet I think it may be fairly implied from its provisions that it would become his duty to give the notice in all cases where (1) the editor, etc., of any publication of whose existence the Postmaster General has knowledge shall fail to file the statement required by law; or (2) the statement on its face shall not conform to the statute; or (3) information shall be laid before the Postmaster General which satisfies him that the information furnished in the statement is inaccurate or untrue. In either event, if the privileges of the mail should be denied because of failure to comply with the statute, the burden would be on the Government to establish such failure.

The provisions of the statute under consideration should not be confused with those of the statutes relating to second-class mail matter, and they in no respect limit or affect the power of the Postmaster General to require full information to be furnished to him to enable him to determine whether or not a given publication is entitled to the privileges of the second-class mail rate.

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The act of March 3, 1879 (R. S. First Supp. p. 246), provides that mailable matter of the second class

"Shall embrace all newspapers and other periodical publications which are issued at stated intervals, and as frequently as four times a year, and are within the conditions named in sections twelve and fourteen."

Among the conditions which by section 14 must be met before a publication is admitted to the privilege of the second class are those of subdivision fourth, namely:

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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 legitimate list of subscribers: Provided, however, That nothing herein contained shall be so construed as to admit to the second-class rate regular publications designed primarily for advertising purposes, or for free circulation, or for circulation at nominal rates."

The act of August 24, 1912, extends the benefits of the second-class mail rate to certain publications to which it has not heretofore been granted. But the provisions of that paragraph, which are found under the head of "Office of the Third Assistant Postmaster General," do not otherwise conflict with the provisions of the act of March 3, 1879, or the amendment to it approved March 3, 1885 (chap. 342), except that with respect to some of the publications issued by or under the auspices of benevolent or fraternal societies or orders, or trades unions, or by strictly professional, literary, historical, or scientific societies, as second-class mail matter, they are limited—

"To copies mailed to such members as pay therefor, either as a part of their dues or assessments, or otherwise, not less than fifty per centum of the regular subscription price; to other bona fide subscribers; to exchanges, and ten per centum of such circulation as sample copies: Provided further, That when such members pay therefor as a part of their dues or assessments, individual subscriptions or receipts shall not be required * *

Independently of this amending act, in order that the Postmaster General may determine whether or not a publication applying to be admitted to the second class has a

legitimate list of subscribers, and is not designed primarily for advertising purposes, or free circulation, or for circulation at nominal rates, the Postmaster General is entitled to require full and complete statements showing the character of the business of the publication, and by section 436 of the Regulations (edition 1902) he has required postmasters to secure satisfactory evidence that publications so offered for entry have

"A legitimate list of subscribers, approximating 50 per cent of the number of copies regularly issued and circulated, by mail or otherwise, made up not of persons whose names are furnished by advertisers or by others interested in the circulation of the publication, but of those who voluntarily seek it and pay for it with their own money, although this rule is not intended to interfere with any genuine case where one person subscribes for a definite period of several issues for a limited number of copies for another."

And by section 438 the postmasters are directed to require the proprietor or duly authorized representative, on applying for second-class mail privilege, to furnish detailed information of a character deemed reuqisite by the Postmaster General to enable him to determine whether or not the publication falls within the requirements of the acts of Congress. The right of the Postmaster General to exact this information is in no respect impaired or affected by the provisions of the statute under consideration. Those provisions are inserted as a part of the act of 1912, which is apparently designed to insure publicity as to the ownership and control of the publication. This particular clause was inserted by amendment just before the passage of the act, and bears no very ascertainable relation to the subject matter of the paragraph in which it was inserted. It is a provision of statute law which should be complied with to the extent which its language requires, but it should not be extended beyond that language. (See Payne v. National Railway Pub. Co. 20 App. D. C. 581; People ex rel. Opdyke v. Brennan, 39 Barbour 651.)

Answering specifically your inquiry, therefore, in my opinion, (1) it is immaterial whether or not the subscrip

tions are individual or in bulk. The statement should include the average of the number of copies of each issue of such publication sold or distributed to all persons who have subscribed; that is, have agreed to take and pay for one or more copies of the publications for a definite period of time, and have paid for such subscriptions; and (2) in my opinion the provision covers the number of copies of such publication distributed to such paid subscribers by any means, whether by the mails or otherwise.

Respectfully,

GEORGE W. WICKERSHAM.

The POSTMASTER GENERAL.

LIBRARY OF CONGRESS-ASSISTANT IN DIVISION FOR THE BLIND.

The provision in the legislative, executive, and judicial appropriation act of August 23, 1912, for an assistant in the division for the blind in the Library of Congress, creates a particular position but does not designate the particular person who is to fill it; the phrase "formerly in free Public Library" is merely descriptive of the character of the duties of the position created.

DEPARTMENT OF JUSTICE,

September 30, 1912.

SIR: I have Mr. Thompson's letter of the 20th instant, inclosing one from the Librarian of Congress, stating that the legislative, executive, and judicial appropriation act of August 23, 1912 (37 Stat. 360), contains among other provisions for the Library of Congress the following:

Reading rooms (including evening service) and special collections: Superintendent of reading room, $3,000; assistants-two at $1,800 each; five at $1,200 each, including one in division for the blind (formerly in free Public Library)"

and asking whether this clause merely provides for the appointment of an attendant in the reading room whose duties shall be performed in the division for the blind, or whether it also designates the particular person who is to fill it.