public the benefit of information contained in the documents. See Debates on H.R. 2650, 25 Cong.Rec. 1463 (Sept. 13, 1893); 25 Cong.Rec. 2626 (Oct. 17, 1893); 25 Cong.Rec. 2667 (Oct. 18, 1893); 27 Cong.Rec. 34, 35 (Dec. 4, 1894).
Subsequent amendments to the 1895 Act did not change its substance. By the Act of June 18, 1934 ch. 606, § 2, 48 Stat. 1018, the franking privilege was extended to Resident Commissioners in Congress, and the date of expiration of the privilege was extended from December 1 to June 30 following the expiration of the respective terms of office of the Congressmen and other officials encompassed under the Act. Then again in 1958, Congress extended the franking privilege for public documents to the Secretary of the Senate. Act of July 25, 1958, Pub.L.No. 85-560, § 3(a), 72 Stat. 420. The legislative history, as far as can be ascertained, indicates no substantive change whatsoever as to the scope of the public document franking privilege. 1958 U.S.Code & Cong.Adm. News, p. 3155.
In 1960, Section 85 of the 1895 Act as amended in 1934 and 1958 was codified as 39 U.S.C. § 4162. Act of Sept. 2, 1960, Pub.L.No. 86-682, 74 Stat. 758. Although the precise wording of the provision was modified, there was no intent to change its meaning. 1960 U.S. Code & Cong.Adm.News, pp. 863-67. For example, because "Members of Congress" was defined in 39 U.S.C. § 4151 to include Senators, Representatives, Delegates and Resident Commissioners, explicit reference to these persons was omitted. Id. at 925.
The final amendment to the public documents franking provision occurred in the Postal Reorganization Act of 1970. Act of Aug. 12, 1970, Pub.L.No. 91-375, § 3211, 84 Stat. 719, in which the franking privilege was further extended to the Sergeant at Arms of the House of Representatives. Again, the legislative history reveals no substantive change as to the scope of the public documents franking privilege. See 116 Cong.Rec. 20445 (June 18, 1970) (House Debate on H.R. 17070); See also 1970 U.S.Code & Cong.Adm.News, p. 3469.
The final version of the public documents franking provision as it now appears in 39 U.S.C. § 3211 is thus identical with the original statute of 1895 as respects public documents sent out by Congressmen during their terms. Since no change in substance or Congressional intent has occurred since the 1895 enactment, the original Congressional intent and purpose behind the statute is controlling.
The government publications, "The Yearbook of Agriculture" and "Capitol Symbol of Freedom" distributed by defendant clearly come within the purview of the 1895 Act, and thus within the scope of 39 U.S.C. § 3211. Each has been printed by express Congressional authorization and thus comes within the category of "public documents printed by order of Congress."
As to "Consumer Product Information," it appears that this document was printed by Executive Order.
It may well be that the Executive has been empowered by Congress to effectuate the printing of this publication, but I so far have not been able to discover the source of the Executive's authority here nor have counsel afforded me information in this regard. However, in view of the fact that I find today that the 50,000 copies of "Consumer Product Information" printed by Executive Order and allotted to defendant have already been distributed, and in view of the disposition I shall reach as to possible damages, I need not and do not decide whether distribution of documents printed by order of the Executive comes within the scope of 39 U.S.C. § 3211.
Definitely not included, however, under § 3211 is the 156,000 copies of "Consumer Product Information" which defendant had reprinted from the Government publication at his own expense, and which he is in the process of distributing by a mass mailing throughout his district and throughout the municipalities which are in the district in which he is presently a candidate. I find that since these particular documents were not printed "by order of Congress" but rather at defendant's own expense and initiative, they cannot be distributed under authority of 39 U.S.C. § 3211. Although it may be argued that distribution of such unauthorized reprints containing the identical information as authorized Government publications serves the broader purpose of informing the public, this view does not accord with the restricted scope given to the public documents franking privilege by the framers of Section 85 of the 1895 Act. Whether or not such reprints may be frankable under another section of the franking statutes is a matter which will be taken up shortly.
Plaintiff contends that even though public documents may be distributed under the frank, such distribution must be limited to a Congressman's constituency. Plaintiff thus seeks to enjoin public documents sent to municipalities in the new district which are not in defendant's current district. I find that the 1895 Act makes no such distinction between a Congressman's constituency and any other persons. Thus, a Congressman can distribute Section 3211 documents under his frank to any person.
With respect to the Agricultural Yearbooks, an additional reason exists for finding that their distribution is not in violation of the Congressional franking privilege. Such publications of the Department of Agriculture, contrary to the plaintiff's contentions, do come within 39 U.S. § 3213, which provides that Agricultural Reports emanating from the Department of Agriculture may be mailed "until the thirtieth day of June following the expiration of their terms of office, as franked mail by Members of Congress."
Plaintiff's last contention with respect to Section 3211 is that although Government documents may be distributed under the frank, defendant's inclusion of "cover" letters in the Agricultural Yearbooks and other publications renders the mailings unfrankable under 39 U.S.C. § 3211. I find that the inclusion of letters that serve to identify a Congressman and explain briefly the reason for the distribution of the particular document accords with the spirit of the requirement in the original statute of 1895, namely that distributors of such documents stamp their name and offices upon them. See n. 6 supra. Such a cover letter also is permitted under 39 U.S.C. § 3210, as discussion of the statutory history of that provision will soon reveal. Since Congressional intent, as the statutory history of § 3211 demonstrates, has not varied from that expressed in the 1895 Act, the inclusion of such letters does not disqualify defendant from sending out public documents under 39 U.S.C. § 3211.
I shall next consider the propriety of defendant's distribution of materials included in GROUP II, i.e., reprints of "Consumer Product Information," the newsletter, the voter survey questionnaires, and the brochures on the drug problem. Defendant contends that such distributions are authorized by 39 U.S.C. § 3210 which provides in pertinent part:
"The Vice President, Members, and Members-elect of Congress, Secretary of the Senate, Sergeant at Arms of the Senate, Clerk of the House of Representatives, and Sergeant at Arms of the House of Representatives, until the thirtieth day of June following the expiration of their respective terms of office, and the Legislative Counsel of the House of Representatives, may send as franked mail --
(1) matter, not exceeding 4 pounds in weight, upon official or departmental business, to a Government official; and