MR. JUSTICE BROWN delivered the opinion of the court.
The first number of Masters in Music was issued in January, 1903, and an application was immediately made to the Postmaster General for its admission to the mails as second class mail matter. The application was denied, and plaintiff immediately, and before the issue of another number, filed this bill. The publication purports to be a "monthly magazine,"
The Postmaster General placed his refusal to allow this magazine to be transmitted as second class mail matter upon the ground that each number was complete in itself; had no connection with other numbers save in the circumstance that they all treated of masters in music, and that these issues were in fact sheet music disguised as a periodical, and should be classified as third class mail matter.
Conceding the principle established in the two cases just decided to be that the fact that books published at stated intervals and in consecutive numbers do not thereby become periodicals, even though in other respects they conform to the requirements of section 14, cases may still arise where the classification of a certain publication may be one of doubt. Such is this case. But we think that, although the question is largely one of law, determined by a comparison of the exhibit with the statute, there is some discretion left in the Postmaster General with respect to the classification of such publications
It has long been the settled practice of this court in land cases to treat the findings of the Land Department upon questions of fact as conclusive, although such proceedings involve, to a certain extent, the exercise of judicial power. As was said in Burfenning v. Chicago, St. Paul &c. R.R., 163 U.S. 321, 323: "Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the Land Department, one way or the other, in reference to these questions is conclusive and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined." (Citing cases.) See also Johnson v. Drew, 171 U.S. 93; Gardner v. Bonestell, 180 U.S. 362.
But there is another class of cases in which the rule is somewhat differently, and perhaps more broadly, stated, and that is, that where Congress has committed to the head of a department certain duties requiring the exercise of judgment
In Marquez v. Frisbie, 101 U.S. 473, which was a bill in equity to review the decision of the Land Department in a preemption case, Mr. Justice Miller remarked (p. 476): "This means, and it is a sound principle, that where there is a mixed question of law and fact, and the court cannot so separate it as to show clearly where the mistake of law is, the decision of the tribunal to which the law had confided the matter is conclusive." In Gaines v. Thompson, 7 Wall. 347, it was held that the court would no more interfere by injunction than by mandamus to control the action of the head of a department; and in United States ex rel. Dunlap v. Black, 128 U.S. 40, it was said that the courts will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, no appellate power being given them for that purpose. See also Redfield v. Windom, 137 U.S. 636.
The rule upon this subject may be summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive; and that even upon mixed questions of law and fact, or of law alone, his action will carry with it a strong presumption of its correctness, and
Upon this principle, and because we thought the question involved one of law rather than of fact, and one of great general importance, we have reviewed the action of the Postmaster General in holding serial novels to be books rather than periodicals; but it is not intended to intimate that in every case hereafter arising the question whether a certain publication shall be considered a book or a periodical shall be reviewed by this court. In such case the decision of the Post Office Department, rendered in the exercise of a reasonable discretion, will be treated as conclusive.
In the case of Masters in Music the question really is whether a pamphlet, complete in itself, treating of the works of a single master, with a greater part of the pamphlet devoted to specimens of his genius, shall be controlled by the cover, which declared that these numbers will be issued monthly, at a certain subscription price per year. Although a comparison of the exhibit with the statute may raise only a question of law, the action of the Postmaster General may have been, to a certain extent, guided by extraneous information obtained by him, so that the question involved would not be found merely a question of law, but a mixed question of law and fact. While, as already observed, the question is one of doubt, we think the decision of the Postmaster General, who is vested by Congress with the power to exercise his judgment and discretion in the matter, should be accepted as final. The decree of the Court of Appeals is therefore
MR. JUSTICE HARLAN (with whom concurred The CHIEF JUSTICE) dissenting.
The Chief Justice and myself are of opinion that the publication here in question is second class mailable matter, and cannot
But there are some things in the opinion of the court in this case to which we shall advert. It is said that the case is one of doubt. Now, it was admitted at the bar by the Government that the publication known as "Masters in Music" would be carried in the mails as second class matter if the question be decided in accordance with the construction placed upon the statute by the Department for more than sixteen years continuously prior to the present ruling of the Department. We had supposed it to be firmly settled that the established practice of an Executive Department charged with the execution of a statute will be respected and followed — especially if it has been long continued — unless such practice rests upon a construction of the statute which is clearly and obviously wrong. In United States v. Philbrick, 120 U.S. 52, 59, which involved the construction placed by an Executive Department upon an act of Congress, this court said: "Since it is not clear that that construction was erroneous, it ought not now to be overturned." So in United States v. Healey, 160 U.S. 136, 145, the court said that it would accept the uniform interpretation by the Interior Department of an act relating to the public lands, "as the true one, if, upon examining the statute, we found its meaning to be at all doubtful or obscure." The authorities to that effect are numerous. Edwards' Lessee v. Darby, 12 Wheat. 206; Hahn v. United States, 107 U.S. 402; United States v. Graham, 110 U.S. 219; Brown v. United States, 113 U.S. 568; United States v. Philbrick, 120 U.S. 52; United States v. Johnson, 124 U.S. 236; United States v. Hill, 120 U.S. 169; United States v. Philbrick, 120 U.S. 52; United States v. Ala. G.S.R.R. Co., 142 U.S. 615; Hewitt v. Schultz, 180 U.S. 139, 157. Some of them are cited in the opinion of the court in Houghton v. Payne. The rule of construction which this court has recognized for more than three-quarters of a century is now overthrown. For, it is adjudged that the practice