# Motion to Dismiss Appeal — New Yorker Magazine, Inc. v. Gerosa > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1082%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss Appeal - **Published:** January 1, 1958 - **Citation:** 356 U.S. 339 ## Text oS ‘ . . * pt? 3 . ‘ aes oT amen: : ° [Reem Sets 2 A mm — 2 ly rae apm he Med es Ocroser TERM, 1957 _ No. 816 ne THE NEW YORKER MAS AZINE, INC, | ae Se eee ae Apron, LAWRENCE E. GEROSA, as“Comptroller of, the-City of New York, and GEORGE -M. P AGALINI, as Treasurer of the City of new York, , | _ Appellees. ae * eo lise Ey | ; On APPEAL FROM THE Court oF APPEALS OF THE STATE OF, NEw York. e F fi a 7 n5 : ra === npn _4¢ MOTION TO. DISMISS APPEAL ~ — = an PETER CAMPBELL Brown, Corporation Counsel of the City of New York, ‘> | y, Attorney for Appellees, * © ‘Municipal Building, _New York 7, New York. | wy 6 2 somewhat. - Appellant 's cifculation Tuanager testified that copies of the magazine are mailed ty subscribers and news. stands both at the New York Post Office and at the Green. wich, Connecticut Post Office (fols. 719-720). Vv" Appellant publishes and sells only ‘one magazine, “The: New Yorker.’’ The. magazine circulates throughout the country, including the City of New York where it has ap-. proximately 20% of its circulation. All copies of the maga- zine are identical, except that the copies which circulate in the New York City metropolitan area (called the ‘‘city”’ _ edition) contain a few additional pages of advertising and some additional editorial mattér not found in the copies circulated eisewhere (fols. 145-148, 172-174, 471-472, 941. 943). The additional editorial matter appears’ to be con- fined to a listing, on approximately. one page, of the motion _ pictures being shown ‘in New York ‘City ‘neighborhood motion picture theaters. | The additional advertisements inserted in the copies of the magazine that circulate in the New York City area are those of local stores. and other advertisers desiring: to reach only this marketing area (fols. 394-395). But, except for these relatively few advertisements, every advertise-_ " ment in the magazine appears in identical form in every copy of the magazine, including the copies circulated in the City of New York (fol. 901), See eae For its own convenience, and to fix advertising rates, * the copies of The New Yorker magazine that circulate in | the New-York City metropolitan area are designated by appellant as the city or metropolitan edition; the copies that circulate outside this area are referred to as the star or out-of-town edition (they bear a small star on the front cover); and the total number of copies is known as the entire or complete edition (fols, 146-148, 394-395, 941-943). However, in selling the magazine no such distinctions are 7 made. Atl copies are ula as copies of The New Yorker magazine and are identical in price, appearance and format. Except for the star on the cover, it is impossible to tell one copy from another, short of a careful page by page - comparison. Appellant itself, in reporting its circula- tion to the Audit Bureau of Circulations, characterizes ‘the differences. as a ‘‘slight difference in editorial content and arrangement, and a small difference in advertising content’ ’ (Appellant’ s Exh: 14, par. 28, p. 391 of the record). . Appellant did not accept advertising solely in the s0- called star ‘or out-of-town edition ; i.e., the copies of. the magazine: which were circulated outeide the New York City metropolitan area. An advertiser could advertise in the so-called ‘‘entire’’ edition (obtaining national cover- age, including New York City) or in the ‘‘city’’ edition - (obtaining coverage of the metropolitan New ‘York City area only). It was given no third choice (fols. 1162-1163). Hence, every advertisement accepted by appellant cireu- lated in the City of New York, either as printed in the city edition copy of the. page, or in both the city and star edition bas ce — . — VI-- . ot @ c. Publishing ae The claim that the magazine is ‘‘published’’ in Con. _ ” necticut is directly contradicted by the jegend contained On the index page of ‘The New Yorker magazine itself, which reads as follows (p. 2 of Appellant’s Exhs. 3 and 4): *‘The New Yorker, published- weekly by the F.. R. Publishing Corporation, 25 W. 43rd St, New York “18, N. ¥. * * * Entered as second-class matter, | Feb- ruary 16, 1925, at ™ -™ office at New York, N. Y. lecits Printed. in U.S: a as 13 = ' The contract with the aniiiee dalled for shipment to the | public from New York (‘Roll wrap and deliver to Grand | Central and General Post Offices N. Y. C.’’, City’s: Exh. - A, p. 4; City’s Exh. B, p. 5). And all circulation instruc- tions were issued. from appellant’ 8 office in’ New York (fols. 729-730). , The New York ene is ; given as appellant’ 5 office on: the rate cards (record, PP. 385-386), in ‘official announce- ments (i., pp. 387-388), in statements and reports to the Audit Bureau of Circulations (id., p. 391; Pet’s Exhs. 15, 16, 17, 29, 30) ‘and in promotional material, (record, pp. | 407, 409, 411; .Appellant’s: Exh. 39). ‘Surely the independent Connecticut printer is not the. publisher. It seems equally ‘clear that place of publica-. tion does not shift from New York to Connecticut- simply because the printer mails some of the copies of the maga- zine from the fatter state. Iv .. Just as in the.Western Live Stock case, there .is no danger of multiple taxation of the- advertising ‘receipts in the present case. Any risk of multiple taxation arising * from the possibility that a state where the appellant has an office for the solicitation of advertising might tax such - Teceipts has been tliminated. All receipts from the one . ‘guch office maintained by the appellant have been excluded from the measure of the tax.” Nor can the mere: fact that the magazine circulates in other states furnish such states. with a basis for taxing. the advertising receipts (303 U.S. at. p. 260). Similarly, there is no danger of taxation of the advertis- ing receipts by Connecticut. On. this point it -suffices to quote ‘the well reasoned statement of the intermediate: court below (2 AD 2d at p. 604) : 14. *- this. case . the fact that‘ taxpayer’s printing is done in the State of Connecticut does not create that danger, because the. printing is done under independent con- tract, and there is no localized ownership (and there- fore activity) of an integral part of the unitary opera- tion of publishing, editing and printing a- magazine. — The localized activity there, then, becomes that. of the printer, rather than of this taxpayer. To the point — urged by the- taxpayer here, that it warehouses large ' quantities of paper in Connecticut in order to serve — ‘its printer ‘and may, ‘therefore, be subject to local - taxation in Connecticut, it must be assumed that | any @ «such local taxation, to be valid; could not be a privi- lege-of-doing-business tax, although it might be a _-s- property tax, or tax based” on use, or other non- 3 —— local tax.” ay Appellant’s use of so-called’ ‘‘editions’’ in selling its magazine does not establish a circulation pattern essen- - tially any- different from that in the Western 2 Stock - ease. In that case all copies of the magagine Were the same. Here, the copies of the New Yorker that circulate within New York City are essentially the same as the — copies circulating elsewhere. In editorial content there is only a very slight difference. And in advertising con- tent there is no difference whatsoever except that the copies circulating within New York City contain a4 number of advertisements omitted from the copies circulated else- where. | ; Nor den te appellant’s national tintin canse this case to differ from Western Live Stock. In that'case this Court proceeded on the assumption’ that the ‘advertising. contract stipulated ‘‘that the advertisements shall be sent. to subscribers out of the state, or is so framed that the 15 compénsation would not: be earned if subscribers outside the state should cancel their subscriptions’? (303 U. S. ete «© a Bas, ee , B. Western Live Stock v. Bureau of Revenue, 303 U. S. - 250. (1938) is still sound.law. , * During the twenty years since the Western Live Stock case was decided this. Court has referred to it in thirty different, decisions : twenty-five times.in majority opinions; three times-in dissenting opinions; and twice in dismissing appeals for. want of a substantial federal question. In ~ none of these cases has the authority of the decision been overruled or questioned. In every instance it is cited with approval. -_—* , Appellant appears to rely principally on the three cases 3 of Lorain Journal Co. v. United States, 342 U. S. 143 (1951) ; Gwin, White é Prince, Inc. v. Henneford, 305 U. S. 434 (1939) and Fisher’s Blend Station v. State Tax Com- mission, 297 U. S, 650 (1936). ~~ capes uit "The. Lorain Journal case involved a Sherman Antitrust - Act prosecution against a newspaper publisher to enjoin _ it from monopolizing commerce. In sustaining the Federal . Government’s jurisdiction this Court relied on cases which. specifically state that federal regulation may extend to activities which are, beyond dispute, subject to state. taxa- tion. a Binderup J Pathe Exchange, 263 U. S. 291, 311 (1923); * tie i" Stafford v. Wallace, 258.U. S. 495, 525-528 (1922) ; ‘ Swift & Co. v. United States, 196 U. 8. 375, 399- 400 (1905). ‘ ? ' In fact, the Sherman Act may be applied to competitive - practices which, for tax and other purposes, are regarded as wholly intrastate. « er : 16 United States v. Wrightwood Dairy Co., 315 U. S. 110, 120 (1942); om - Mandeville Farms v: Sugar Co., 344 U. Ss. 219, F 234 - a ‘Most significant i is the fact that the Court i in the — Journal case decision made no reference to the Western ‘Eave Stock: case, although counsel for the publisher reliéd “upon it in his brief. And the Subsequent references by this Court to the Western Live Stock case in two 1954 de- © cisions (Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157, 165-166, 169-170 and Braniff Airways.v. Nebraska ~ State Board, 347 U. S. 590; 597-598) indicate that its | au- _ thority has not been limited. : " , Gwin, White & ‘Prince, Inc. v. i Means, sie Ss. 434 - (1939), involved a Washington privilege tax, measured by — - gross receipts, applied to.a Washington concern selling ‘ produce in other states and in foreign countries. The tax, as measured by the receipts from such sales, was held to _be invalid on the ground that it was an inapportioned tax - on activities extending beyond the limits of the state. . | The case might be relevant if the present tax were im. - posed .on appellant’ 8 receipts from the circulation of its magazine in states other. than New York. But the appel- lant’s receipts from circulation have been taxed, without challenge, only to the extent of the receipts from circila- . tion of the magazine within the City of New ‘York. The only dispute relates to the tax on appellant’s | separase and distinet local advertising receipts. In the Gwin White decision the Court expressly dis-. Yinguished the situation in that case from the Western Live Stock case. It said that the states to which the commerce extended were. in a position to impose a tax similar to the - Washington tax on the activities carried on in those states, thus exposing the business to the risk of multiple taxation, _ whereas such a risk was absent in the Western Live Stock ease (305 U. S. at pp. 439-441). ‘17 - With ‘nll to the Fisher’ 8 Blend mite case, a ob- ‘ vious’ answer is that it Was considered in the Western Live Stock case~and distinguished on the ground that broadcasting is ‘‘itself interstate communication” (308 ieadees tee Sos ant POINT. tt a x The es due process ond equal protection | contentions are completely without merit. The ‘appellant’ 8 argument is that it is heing discrimi- nated against because other businesses have’been taxed on | an allocation basis while all of its advertising receipts from its New York: office have been taxed, The answer is that thé allocations were‘all required by the federal constitution under rulings by this Court. The appellant appears to’ concede that this is so, but asserts that there is no ‘‘factual* difference’’ between it and those who pay tax on an allo- cated basis. Its argument comes down to a repetition of — its Commerce Clause cuntention or a claim that one not protected from state taxation’ by the Commerce Clause may -limit’ such taxation on the ground that, it resembles - those. protected from taxation by the Commerce Clause. The appellant argues also that, since the tax law author- | izes the Comptroller to decide the circuinstances in which: ‘allocation of tax is required by the federal constitution, _the'validity of this administrative action.may be judicially reviewed. Such a delegation of powers to the Comptroller is neces- sary and valid. Olive Coat Co. v. McGoldrick, 287 N. Y. 769 (1942); Wheeling Steel Corp. v. Foz, 298 U. S. 193, 215 (1936). So far as the Comptroller’s ‘determination ' affects the ‘ appellant it is reviewable and: has been reviewed: in the present case. On the other hand, the’ appeVant: cannot escape tax, simply hecause, in interpreting this Court’ S ih 18 decisions concerning the Commerce Clause, the Comptroller may have made an error in concluding that another class: of taxpayers cannot be taxed except on an allocated basis. Charleston Assn. v. Alderson, 324 U. S. 182, 190-191 (1945) ; Snowden v. Hughes, 321_U. S. 1, &9 (1944). Moreover, no such error has been shown. | CONCLUSION bee The appeal to this Court from the order of the Court of Appeals of the State of New York should be dismissed. March 17, 1958. . eer, submitted, PETER Canevunts, Brown, Corporation Counsel of the ; City of New Y. ork, - Attorney for Appellees. STranLeY BucussBaum, ‘Morris L. HEatTH, Of Counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385610_1082%3A4. Public record. Not legal advice.