author: Hooker, J. Grant, J.

text:
    EIKHOFF v. GILBERT.

    1. Libel — Candidates for Office — Appeal to Voters — Privilege.
    A circular addressed to voters, requesting them to vote against a certain candidate for representative “because in the last legislature he championed measures opposed to the moral interests of the community,” without stating the measures supported, is not privileged, for it is a statement of a fact libelous jper se, and affords no opportunity to judge whether or not the statement is a proper deduction from the facts on which it is based. .„i
    3. Same — Truth of Charge — Question for Jury.
    In an action of libel for distributing a circular requesting voters to vote against a candidate because he had supported legislation opposed to the moral interests of the community, it is for the jury to say whether the supporting of measures permitting sales of liquors on legal holidays, and on election days after the close of the polls, and authorizing the removal of screens in saloons, was opposed to the moral interests of the community.
    3. Same.
    A circular addressed to voters, charging that a certain person is a self-avowed candidate for liquor dealers, edits a.scurrilous newspaper, is the champion of saloon lawlessness and vulgar theaters, and concluding with the words, “for reasons which we consider equally as good we ask you to vote against ” another candidate, is libelous per se as against such latter candidate.
    Grant and Moore, JJ., dissenting.
    Error to Wayne; Waite, J.
    Submitted February 6, 1900.
    Decided June 5, 1900.
    Case by Henry J. Eikhoff against Edward T. Gilbert and others for libel. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Edward S. Grece (William B. Jackson, of counsél), for appellant.

      Wells, Angelí, Boynton & McMillan, for appellees.

       Rehearing denied December 11, 1900.

   Hooker, J.

The defendants are members of an organization called the “Good Government League,” in the city of Detroit, which professes to have for its object the election of worthy men to office, and the promotion of good order and honest administration of city affairs. The plaintiff, having attended one session of the legislature in the capacity of representative, was a candidate for re-election. This action is for libel, alleged to have consisted of three publications over the names of the defendants. One, for convenience called the “White Circular,” was addressed to the voters, and contained in parallel columns the names of several candidates whom the electors were advised to vote for or against. The portion applicable to the plaintiff was as follows:

“VOTE

“For

Harry C. Barter for representative, because he represents all that is good in his opponent, and-does not represent the objectionable. He is the champion of labor and arbitration.

Against

Henry Eikhoff for representative, because in the last legislature he championed measures opposed to the moral interests of the community.”

Another, called the “Pink Circular,” contained the following :

“Read and Reflect Before You sYo™-

“The executive council of the Good Government League has carefully examined the record of each candidate for office. Where opposing candidates are equally bad or equally good, we make no recommendations. The following suggestions are made in the hope that they may aid you in the discharge of your duty as a citizen, and that righteousriess may prevail in public as well as in private affairs:

“Lou J. Burch is candidate on the Republican ticket for representative. All friends of morality and decency are asked to vote against him for the following reasons; Lou J. Burch is secretary of the Michigan Liquor Dealers’ League. He is editor of the official organ of that league. He is a self-avowed candidate for the liquor dealers, and desires to go to the legislature to work in the interest of the saloon. Lou J. Burch is editor and publisher of a scurrilous sheet, dated Saturday, but always issued Sunday morning. In his paper the ministry is ridiculed, women are maligned, and workers for the cause of righteousness are defamed. Lou J. Burch is the champion of saloon lawlessness and of vulgar theaters. Lou J. Burch has offered insult to every colored man, woman, and child in Detroit. In witness of these facts, read the following statements from his own sheet;

“ ‘The liquor interests of the city are likely to have something to say in the convention. Lou J. Burch, editor of-, is their candidate.’ October 29, 1898.

“ ‘Here and there could be seen the burly forms of chicken-fed preachers, arrayed in long, dark frock coats, with hair pompadour, and smile urbane as the harvest moon, moving about among the female portion of the flock, thinking what a snap they had. It was' a veritable Eden for them, and it was full of ripe, luscious apples, and no snakes. A preacher is never so near his heaven as when in charge of a menless audience or convention.’ January 22, 1898.

“Speaking editorially of one of Woodward avenue’s most prominent and popular ministers, the sheet says:

“ * * He is either crazy, a fool, or both; and that, at best, he is a weak, narrow-minded bigot, without religion or sense.’ May 7, 1898.

“ Referring to deaconesses and other Christian workers, Burch’s paper says:

“ ‘ The front row of chairs was occupied by as interesting a bunch of short-haired, long-nosed women, of doubtful age, as one would meet in a long search.’ October 1, 1898.

‘ ‘ Referring to prominent pastors and church workers who were at police court recently,' Burch’s paper says they were ‘as fine a looking lot of spies and sneaks as ever put powder to a safe.’ October 1, 1898.

“ ‘And still these awful good and pious old ladies can never see anything wrong with hugging and kissing bees and grab-bag bunco games as they are carried on at the regulation church socials.’ October 22, 1898.

‘ ‘ In commenting upon the discharge in the recorder’s court of a saloonist, Burch’s paper says:

“ ‘The outcome of all these cases should be the same as this first one, and probably will be. Mathews was defended by Navin & Sheehan.’ October 15, 1898.

“Burch’s paper spoke as follows concerning the effort to close the Capitol-Square Theater:

* * Agitating against the Capitol-Square Theater with the intention of closing it, but without success, for the simple reason that there is no excuse for such an outrageous procedure.’ April 2, 1898.

“After the evidence upon which the theater was closed was in, Burch’s paper said:

“ ‘As the investigation now stands, there can be but one result, —the complete vindication of Dr. Campbell.’ April 9, 1898..

‘“Republican politicians about town are wondering which side of the fence Charlie Joslyn will be found upon in the Pingree and anti fight this year. Pingree bought Charlie with a §5,000 per year job two years ago, but there is a rumor that the foxy Charlie is looking for a raise this year.’ April 16, 1898.

‘ ‘ ‘ Should Stay Away.

“ ‘ Negroes must Realize that There is a Line.

“ ‘The question of the color line has arisen in Detroit once more. A negro claims that he was discriminated against at Stock’s Riverside Park. This statement is denied, however. He had no business there. Negroes must realize the fact that white people will associate with them more or less in business, but will certainly refuse to be on equal terms with them socially. Knowing the objection there is for their company, why does the negro force it ? No gentleman would. White men would be forcibly ejected from any place where they made themselves half as obnoxious as do most colored people. It has since transpired that the negro, anxious for a case, made no complaint to Mr. Stock, but straightway rushed into court. Mr. Stock is a very fair-minded gentleman, and is willing, and always used Detroit citizens liberally, and there is no doubt they will support him against the arrogance of Detroit’s colored population.’ May 28, 1898.

“‘The ladies of the W. C. T. U. have been having sixteen fits each all the week over a showbill in which a man is depicted in the act of choking a woman. If the man in question had a grip on a half dozen or more men-women who have been making fools of themselves here in Detroit for the past year, the picture would be better appreciated by a large majority of the people.’ October 29, 1898.

“Burch probably desires the repeal of the minor law. Judge from the following:

“ ‘TO Fathers and Mothers:

“ ‘Fathers and mothers of Michigan, has it ever occurred to you that the doors of the saloon are barred against your minor sons and daughters, while they can enter a drug-store with seeming propriety, and sip intoxicating drinks issued from a soda fountain ? Which of the two institutions is the more likely to start innocent youth on the downward path ? Do you think it fair and just to continually persecute the licensed saloonkeeper, who executes a large bond guaranteeing the proper conduct of his place, and wink at the unlicensed whisky-selling druggist ? Pause and consider.’ June 4, 1898.

“For several weeks Burch’s paper has carried the following in display type:

‘ ‘ ‘ Below are the names of the 39 men who not only voted against this particular bill, but used their influence against the liquor interests during the entire session. Don’t wait for the election this fall, but be on hand at the caucuses and the conventions, and see to it that these 39 men get just what they gave you, — the dump.’ September 24, 1898.

“By your vote do you desire to ask the State to bear the expenses and pay the expenses and pay the salary of the saloonkeepers’ lobbyist? That your vote may be effective,- we ask all who may refuse to vote for Burch to concentrate their votes upon Alex. W. Blain.

“For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff, candidate for representative, and for Harry C. Barter.”

There was a third, but it is unimportant. The declaration alleged that the effect and meaning of the pink circular was to charge and impute by inference and intent, upon the plaintiff, all of the wrongful, indecent, immoral, wicked, and scandalous acts charged against said Burch. The court excluded the pink circular as not libelous, and directed a verdict for the defendants upon the other counts.

The question before us is whether the case should have been submitted to the jury upon one or both counts. The first charge is, in substance, that the plaintiff, in his official capacity of representative, championed measures opposed to the moral interests of the community. The undisputed . testimony shows that as representative he introduced, and, to some extent, at least, approved and supported, measures calculated to change the liquor laws of the State by permitting sales on legal holidays, and election days after the close of the polls, and by repealing the act prohibiting screens in saloons. The court charged the jury that:

‘ ‘ The conclusion of the article, and the views as expressed by the defendants in that article, must of necessity, under the circumstances of the case, be termed a deduction from his record in the case. It is a question upon which men may differ. It probably will be very difficult to determine with any unanimity as to whether such measures were against the moral interests of the community. It is a question of judgment, in other words, based, in my opinion, upon his record in the legislature. Whether it is for the moral interests of the community is an open question. In my judgment, it was such a criticism upon his acts as might legitimately be made by any voter to the voting population of the State or of the county from which he asked to receive the suffrage of the people. If it were true that those acts were against the moral interests of the community, he would have no case here. If they were false, then the question of qualified privilege, as we say in law, would arise. There are certain things' which persons, may say under certain circumstances which are called privileged in the law, — qualifiedly privileged, — and it depends upon the occasion as to whether an utterance or publication is privileged. I charge you that in this case this was a privileged occasion. If they had the right to criticise the acts of this man, being a man running for public office, and one who asked to receive the trust and confidence of the people to perform the duties of that public office, they had a right to criticise him; and, though it was false, it would not be actionable, unless it was published with malice or in bad faith. I do not think in this case there is any evidence of malice outside of the publication itself, — -any positive proof, — which, in my judgment, would be required to be shown on the part of the plaintiff. Hence, if the publication was false, if it was such a publication as would require justification to be shown, — which would be true if the occasion was not privileged, — it being privileged and false, if they acted in good faith, and without malice, the plaintiff would have no right to recover. I don’t think there is any evidence of malice, as I said, or ill-will, on the part of the defendants in this case; and on the whole case — on the evidence as it has appeared in this case — I charge ^you to find for the defendants. The verdict is,.‘Not guilty,’ I think. The clerk will take the verdict.”

The language of the white circular, unexplained, unequivocally charged the plaintiff with having championed legislation opposed to the moral interests of the community. This charge is an attack upon his moral character, and would be likely to bring him into public contempt and disgrace. It is, therefore, libelous per ■ se. The defense made was: First, that the statement was true; and, second, that, if it cannot be said to be true, the proven acts were subject to criticism, and defendants had the right to express their opinion as to their effect, — in other words, that the language was privileged.

The defendants had a right to discuss the fitness of the plaintiff for the office to which he aspired, and might lawfully communicate to the electors any facts within their knowledge concerning his character or conduct, and express their' opinions upon them, and their inferences deduced from them, so long as they stated as facts only the truth, and as opinions and inferences therefrom only honest belief. The fault here, if there be one, is that opinions and inferences were not stated as such, but as facts. The defendants sought to justify the statement made, viz., that the plaintiff championed measures opposed to the moral interests of the community, by pi’oving that he supported the two measures stated. To the minds of some, that would be sufficient to establish the truth of the charge. Others would think otherwise. It is manifest, therefore, that we cannot say, as a legal proposition, that the undisputed testimony establishes the truth of the broad charge. Evidently the learned circuit judge took this view. It is evident that the acts proved were sufficient to induce in the minds of some the opinion that plaintiff had supported measures opposed to the moral interests of the community. The judge therefore instructed the jury that such persons were privileged to say so, and directed a verdict for defendants. But, admitting that they were privileged to express their opinions concerning certain acts, was this what was done ? .Did they not go further, and do more ? They did not state what measures were supported, and their opinions of that particular conduct, but said generally and unqualifiedly, as a fact, that the plaintiff had arrayed himself against the moral interests of the community, which, if true, should discredit him with any voter who should believe the statement. It appealed alike to all classes, — those who should look upon the legislation proven as not opposed to the moral interests of the community as well as those holding contrary views; and it afforded no one an opportunity to judge whether the statement was a proper deduction from the facts upon which it was based or not. ■ If one states that a candidate is a thief, without qualification, he communicates a fact pertaining to his fitness^but it is a slander if untrue, whether it was made in good faith or not, although, had he stated the exact facts, and expressed the opinion that they amounted to stealing, though they did not technically constitute the offense of larceny, the communication might be privileged.

The difficulty in this case is that the defendants have been permitted to limit their statement by proof of their intended meaning, while the writing itself contained no hint of limitation. The case of Ellis v. Whitehead, 95 Mich. 115 (54 N. W. 757), is in point. It was there said:

“The fourth request should not have been given. It makes the slander depend entirely upon the intention of the defendant, and, in effect, says that vituperation is not slander when provoked, though it transcend the bounds of truth and propriety. It is going sufficiently far to say that a person may without liability call another a thief under circumstances which show he does. not mean it. To hold that he could do so in the absence of qualifying circumstances, and shelter himself behind a provocation, real or imaginary, adequate or inadequate, would carry the rule much too far. In actions for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring ánother’s reputation; but, if he has in fact done so, he must compensate the party. He may have meant one thing and said another. If so, he is answerable for so inadequately expressing his meaning. * * * Slander, like other wrongs, is actionable because injurious; and, while intention may have much to do with the question of damages, it is not necessarily involved in the question of guilt. ”

We are of the opinion that the court erred in saying that the words were privileged. Not being privileged, it should have been left to the jury to say whether the evidence showed that plaintiff’s support of these measures was opposed to the moral interests of the community as a matter of fact; in other words, to determine the truth of the charge.

It is hardly necessary to cite authorities in support of the doctrine that a candidate for office has a right of action for aspersions upon his character, and cannot be subjected to unwarranted and untruthful charges. In New York no distinction seems to be made between a public man and a private citizen. Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613, 4 Wend. 113 (21 Am. Dec. 102); Hamilton v. Eno, 81 N. Y. 116. A leading case will be found in Com. v. Clap, 4 Mass. 163 (3 Am. Dec. 212). See, also, Curtis v. Mussey, 6 Gray, 261; State v. Schmitt, 49 N. J. Law, 579 (9 Atl. 774); Hunt v. Bennett, 19 N. Y. 173; Pierce v. Ellis, 6 Ir. C. L. 55; Simpson v. Downs, 16 Law T. R. (N. S.) 391; Duncombe v. Daniell, 8 Car. & P. 222. In this last case Lord Den-man said: “However large the privilege of electors may be, it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate.’’ Bailey v. Publishing Co., 40 Mich. 254; Bronson v. Bruce, 59 Mich. 467 (26 N. W. 671); Wheaton v. Beecher, 66 Mich. 310 (33 N. W. 503); Belknap v. Ball, 83 Mich. 587 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Wolff v. Smith, 112 Mich. 360 (70 N. W. 1010); Austin v. Hyndman, 119 Mich. 615 (78 N. W. 663); Clifton v. Lange, 108 Iowa, 472 (79 N. W. 276); Field v. Magee, 122 Mich. 556 (81 N. W. 354).

The court excluded all proof in relation to the “Pink Circular,” upon the ground that it was not libelous. After charging that Burch is a self-avowed candidate for the liquor dealers, and desires to go to the legislature to work in the interest of saloons, that he edits a scurrilous newspaper, that he is the champion of saloon lawlessness and vulgar theaters, and quoting at length from his writings, as already shown, the pink circular concludes as follows, viz.: “For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff.” The count alleges under innuendoes that the meaning of this circular was that the plaintiff was an indecent and immoral man, and equally as unworthy of support as "Burch. We are "of the opinion that this comparison with Burch cannot mean less than that the plaintiff was a man as unworthy of support as Burch, for reasons not given, except as they may be implied by the charges made against Burch. Some of the charges against Burch were libelous per sej e. g., that he is the champion of saloon lawlessness and vulgar theaters. Thus the pink circular itself furnishes implications throwing light upon the meaning of the words used about plaintiff, and justifying the claim made, viz., that he was represented to be a man of bad morals, and unworthy of support for that reason. We think this also was libelous per se, and should have been admitted, leaving the defendants to prove the truth of the charge.

The judgment is reversed, and a new trial ordered.

Montgomery, O. J., and Long, J., concurred with Hooker, J.

Grant, J.

(dissenting). I cannot concur in the opinion of my Brother Hooker. The right of citizens to criticise the character, acts, and record of a candidate for public office is involved. The principles of law governing such cases are not in dispute. They have often been stated in the decisions of this court, and the distinctions between justifiable criticism and charges of criminal and degrading conduct pointed out. Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Dunneback v. Printing Co., 108 Mich. 75 (65 N. W. 583); Owen v. Dewey, 107 Mich. 67 (65 N. W. 8); Howard v. Dickie, 120 Mich. 238 (79 N. W. 191). The other cases will be found cited in the above, and cover the entire field of discussion upon the question now before us.

1. I think the court correctly ruled out the “Pink Circular.” This circular makes grave charges against Burch, and urges the electors to vote for his opponent, Mr. Blain. It then says: “For reasons which we consider equally as good, we ask you to vote against Henry Eikhoff, candidate for representative, and for Harry C. Barter.” If the circular had read “for reasons which we consider good,” it would not be contended that the words would be libelous. Citizens certainly have the right to declare that they have good reasons for .opposing a candidate, though they do not state them, without subjecting themselves to an action of libel or slander. • It follows that this article is not libelous per se, and cannot be made libelous by innuendoes, unless it can naturally be construed into charging plaintiff with the same or similar acts as charged upon Burch. It does not charge plaintiff with the offenses charged upon Burch. They do not imply that plaintiff is guilty of the same or similar offenses. On the contrary, the plain inference is that the reasons are not the same, but, in the opinion of the writers, “equally as good.” The language speaks for itself. There is no occasion for an innuendo to explain it. When we read the other circular, we find that those reasons are his championship of certain measures in the legislature of which he was a member. When we read the evidence, we find it conclusively establishes that these measures provided for the removal of certain restrictions in the present liquor law of the State which have been upon the statute book for about 20 years.

2. The “White Circular ” reads: “Take this to your voting booth, and, whatever your party preferences may be, remember that you should vote against Henry Eikhoff for representative, because in the last legislature he championed measures opposed to the moral interests of the community.” This statement refers to the public record of plaintiff as a member of the legislature. It does not charge him with crime, or criminal or scandalous conduct. It means no more than this: That, in the opinion of the writers, measures were introduced into the legislature which were opposed to the moral interests of the community. These measures were designed to accomplish the removal of some restrictions now placed upon the liquor traffic by providing for the repeal of the provisions of the law for the removal of screens and blinds from saloon fronts, and for closing on certain holidays, and during certain hours on election days. It may be true, as the circuit judge said in directing a verdict: “It probably will be very difficult to determine with any unanimity as to whether such measures were against the moral interests of the community.” But the defendants certainly had the right to condemn them as opposed to the moral interests of the community, and to urge electors to vote against candidates who would support them. The evils of the liquor traffic are matters of common knowledge. How it is regarded by the courts will appear in Kurtz v. People, 33 Mich. 279, in an opinion written by Justice Campbell, and concurred in by the entire court; and in the case of Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13), in an opinion written by Mr. Justice Field, and concurred in by the entire court. In the former opinion the court uses the following language:

“The continuance of lounging and drinking into the late hours of the night is equally known as peculiarly dangerous. Men or boys can escape observation more readily by night than by day. When they have once become engaged in the pleasures and temptations of such resorts, it is but too sadly manifest to all who do not shut their eyes to what is going on around them that, after drinking has once begun by those who are in danger of excess (if there are any that are not), it is apt to be kept up much longer than may have been thought of or intended. ‘Midnight revels’ would never have become a popular phrase unless they had been a well-known reality. Unless the annals of crime are strangely distorted, the amount of mischief due to the indulgence of late drinking is much beyond its proportion in any other part of the day.”

In the latter the following language is used:

“ It is urged that, as the liquors are used as a beverage, and the injury following them, if taken in excess, is voluntarily inflicted, and is confined to the party offending, their sales should be without restrictions; the contention being that what a man shall drink, equally with what he shall eat, is not properly matter for legislation. There is in this position an assumption of a fact which does not exist, — that, when the liquors are taken in excess, the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But, as it leads to neglect of business, and waste of property, and general demoralization, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dramshop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in. this way has therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and the days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the State is fully competent to regulate the business, — to mitigate its evils, or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it .is not a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils.”

If the eminent men and jurists then composing those courts may thus characterize the liquor traffic, declare that its evils are matters of common knowledge, and recognize the propriety and necessity of sustaining stringent regulations in the conduct of the business, it certainly is not very far from the truth to say that measures designed to open the saloon at night or on holidays, when men are idle, are opposed to the moral interests of the community. There are those whose lives are otherwise above suspicion, who advocate the wide-open saloon, and who even advocate the licensing of houses of prostitution. The prevailing sentiment, however, among respectable people is against them. If to say of a member of the legislature who supports such measures that he is supporting measures opposed to the moral interests of the community is an attack upon his moral’character, it is an attack for which the law provides no remedy; otherwise,citizens and newspapers would be prevented from criticising any act of the legislature, or any proposed measure, as injurious to the moral interests of the community. I Isubmit, however, that such criticisms are not attacks (upon a man’s moral character. The statement that a man I supports measures which may generally be conceded to be against the moral interests of the community is not charging him with immorality. But he assumes the risk of all criticism upon his acts, however severe or unjust it may be. One of the defendants (Mr. Service) testified:

“My opinion in regard to the opening of the saloons on holidays is that the tendency would be to an increase of drunkenness, and consequent immorality. In regard to the screen law, I think the taking down of the screens keeps out of the saloon very many young men who would be led by shame not to expose themselves publicly.”

The people of this State, through their legislature, have for 20 years held that it was for the moral interests of the people to restrict the liquor traffic. The law could not be sustained on any other basis. When, therefore, any member of the legislature introduces or champions a bill for the removal of any of these restrictions, citizens have a right to condemn his conduct as antagonistic to' the moral interests of the community, and to urge that as a reason for preventing his election. Such right is unquestioned. This is all there is to the “White Circular.” Had defendants specified the measures referred to, it is not claimed that the article would be libelous. If one publishes of a candidate that he is or has been a gambler, may he not allege and show in his defense specific acts of gambling ? or that he has been convicted of crime, may he not in defense allege and prove a record of conviction ? or that he is immoral, may he not allege and show specific acts of immorality ? I find no authority which holds so technical a rule as to require one to state the facts upon which he makes the charge, even in communications not privileged. In Samuel v. Bond, Litt. Sel. Cas. 158, the slander was, “Bond is a thief, and has stolen corn;” plea, “The plaintiff is a thief, and this defendant is ready to verify.” Held insufficient; he should have specified the acts upon which he based the charge that he was a thief; citing Craft v. Boite, 1 Saund. 244, note 6; 2 Chit. Pl. 503. See, also, Wright v. Lindsay, 20 Ala. 428, where the slander consisted in charging plaintiff with stealing whisky. Vaughan v. Havens, 8 Johns. 109; Newell, Slander & L. (2d Ed.) pp. 651-664; Smith v. Richardson, Willes, 20. “If the charge is made in general terms, the particular facts relied upon as constituting the charge must be set forth specifically.” 13 Enc. Pl. & Prac. 82, 83; Sunman v. Brewin, 52 Ind. 140.

The measures and his support of them were matters of public record upon the journals of the legislature. When one becomes a candidate for public office, his previous official record is before the electors for criticism. There was no misrepresentation of any act of the plaintiff. The article necessarily referred readers to his record. It made no charge outside of that. Parties had the right to critiicise his public conduct generally or specially. No case is / cited holding that it is libelous to say that one supported I measures opposed to the moral interests of the community. * Would it have been libelous to publish of a member of Congress who supported the fugitive slave law and other proslavery measures that he supported measures, in Congress opposed to the interests of humanity and the moral interests of the country ? So long as the criticism is based solely upon his official record, the article is privileged. When the facts are truthfully stated or referred to, criticisms thereof and inferences drawn therefrom are not libelous. Parties upon the hustings, in newspapers, or private speech may freely criticise a candidate’s official acts, either generally or specially, without subjecting themselves to an action of libel or slander. The occasion was privileged. The publication was also within the rule of qualified privilege. In these cases the onus probandi is upon the plaintiff to show both falsehood and malice. Edwards v. Chandler, 14 Mich. 475 (90 Am. Dec. 249); Howard v. Dickie, 120 Mich. 238 (79 N. W. 191); State v. Balch, 31 Kan. 465 (2 Pac. 609); Marks v. Baker, 28 Minn. 162 (9 N. W. 678); Neeb v. Hope, 111 Pa. St. 145 (2 Atl. 568); Chaffin v. Lynch, 84 Va. 884 (6 S. E. 474); Briggs v. Garrett, 111 Pa. St. 404, 414 (2 Atl. 513, 56 Am. Rep. 274); Clark v. Molyneux, 3 Q. B. Div. 237. Baron Parke said:

“The occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defense, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” Toogood v. Spyring, 1 Cromp., M. & R. 181.

Plaintiff admits he supported these measures. There is no distortion or misstatement of facts. How, then, is he libeled ? There is no intrinsic evidence of malice upon the 'face of the publication. There is no extrinsic evidence. On the contrary, the record shows that the defendants acted in the utmost good faith, and without any malice towards the plaintiff. Only one of the defendants had ever met him. They are honest, .reputable, and influential citizens of Detroit. Their purpose, namely, the enlightenment of electors as to the character of a candidate for public office, was laudable. It is certainly the right, if not the duty, of good citizens to enlighten not only themselves, but their neighbors, as to the qualifications of candidates. In doing this, freedom of speech cannot be confined within narrow limits. I find nothing in this record to show that these defendants exceeded the privilege which must be accorded to every citizen of the State, if honest and reputable men are to be elected to office.

Briefly stated, the plaintiff’s contention is this: If defendants had set forth in their circular these measures which plaintiff had introduced and championed, and had denounced them as against the moral interests of the community, and denounced him for supporting them, there would have been no libel. But in an action of libel based upon the general statement that he had supported such measures, without specifying them, it is no defense to set out in the plea what those measures were, and prove them, and that he supported them, without submitting to the jury the question whether the measures were in fact opposed to the moral interests of the community. So, in one case the opinion of the defendants prevails as to the character of the measures, while in the other the opinion of the jury prevails. I find no authority for such a rule.

I think the judgment should be affirmed.

Moore, J., concurred with Grant, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    KILBOURNE v. WILEY.
    Vendor’s Lien — Enforcement by Third Person — Attorney’s Fee.
    An agreement that a lawyer shall have a lien on land for a specific amount, representing the value of his services in clearing up the title, is enforcible in equity against a purchaser who takes with knowledge of the arrangement, and who promises, as a part of the consideration, to pay the lawyer’s claim.
    Appeal from Ingham; Person, J.
    Submitted April 3, 1900.
    Decided June 5, 1900.
    Bill by Samuel L. Kilbourne against Washington G. Wiley, Harry G. Wiley, James B. Judson, Nathan Judson, Frank D. Weller, and Adelia M. Weller to enforce a vendor’s lien. From a decree for complainant, defendants Wileys and Judsons appeal.
    Affirmed.

      Samuel L. Kilbourne (R. C. Ostrander, of counsel), in pro. per.

      Thomas, Cummins & Nichols, for appellants.
   Moore, J.

The record shows the following state of facts: Prior to June, 1893, Frank D. Weller and his mother, Adelia M. Weller, claimed to be the owners of a two-thirds interest in certain lands described in the bill of complaint. The title to the lands was in litigation. They were parties to the litigation. Harry G. Wiley claimed to be the owner of the other one-third interest in the lands. The Wellers were unable to carry on the litigation, and made an arrangement with the complainant, who is a lawyer, to take charge of it. If he established their rights in the land, he was to be paid $1,000, and was to have a lien upon the land until he was paid. The complainant took charge of the litigation, and conducted it to a successful issue. All of the defendants knew of the arrangement between Mr. Kilbourne and the Wellers, and of the rendition by him of the service, and the amount he was to be paid therefor. Possessed of this knowledge, Wiley, for Judson, Wiley & Judson, entered into negotiations for the purchase of the two-thirds interest belonging to the Wellers, and finally bought the same. Pending the negotiations, Mr. Wiley, who conducted them for Judson, Wiley & Judson, informed Mr. Kilbourne they understood exactly what the agreement was between the Wellers and him, and that, if they bought the property, they would buy it subject to his right to be paid out of the property, and would see that his interests were protected. Mr. Wiley afterwards completed these negotiations, and a deed of the property was made, according to his direction, for Judson, Wiley & Judson. As a part of the consideration for the conveyance of the land, it was agreed that Judson, Wiley & Judson would pay the claim Mr. Kilbourne had against the Wellers, and to secure the payment of which they had agreed to give Mr. Kilbourne a mortgage upon the land. After the deed was made, Mr. Wiley assured Mr.- Kilbourne they had bought the land subject to the payment of the $1,000 which the Wellers had agreed should be paid to Mr. Kilbourne, and promised to pay him as soon as the decree which had been rendered in the circuit court in favor of the Wellers should become a finality. The $1,000 was not paid, and this proceeding-was brought. The complainant filed an amended bill, making both, the Wellers parties thereto. The Wellers do not contest the claim of complainant, but allowed an order pro confesso to be entered before decree. Mr. Frank D. Weller, who represented his mother as well as himself in the arrangement made with Mr. Kilbourne, was a witness upon the trial of this case. His testimony indicates his desire to have Mr. Kilbourne receive his pay. His testimony substantiates Mr. Kilbourne’s claim in nearly all essential particulars. The circuit judge rendered a decree in.the cause in favor of complainant for the $1,000 and interest, and gave him a lien upon the two-thirds interest in the land sold by the Wellers to the defendants.

It is the claim of the defendants Judson, Wiley & Judson that there is no privity between the complainant and them; that he cannot assert a vendor’s lien, because he was not the owner of the land, and did not make the sale; that there can be no lien, because, at the time of the agreement between Weller and Wiley, there was no certain amount fixed upon to be paid in any event, nor at any particular time. It is asserted the complainant has mistaken his remedy; that he should have secured a lien upon the land when he made the agreement with Mr. Weller, but, failing in this, he should have attached the land when he knew Mr. Weller was trying to dispose of the land. It is true that, upon the cross-examination, Mr. Weller says Mr. Wiley did not agree to pay Mr. Kilbourne $1,000, but agreed to settle with him. Another portion of his examination shows Mr. Wiley was informed the claim of Mr. Kilbourne was for $1,000, and that he agreed to pay that claim. It also shows that, in making up_ the aggregate of the consideration to be paid, this claim was figured at the sum of $1,000. Mr. Wiley testified that he knew the claim was $1,000. So that, taking the record as an entirety, we do not think there can be any reasonable doubt as to the amount which was to be paid.

The question of whether the complainant is in a condition to enforce the agreement, and assert a lien upon the real estate, presents serious difficulties, but, unless they are insurmountable, the equities of the complainant are so strong they ought not to prevail. It has been repeatedly held that the vendor of real estate has an equitable lien upon it for the purchase money, where no ‘security for its payment has been taken. Carroll v. Van Rensselaer, Har. Ch. 225; Dnnton v. Outhouse, 64 Mich. 425 (31 N. W. 411). It is also a well-established rule of law that a vendee who has paid prematurely purchase money for real estate has a lien against the vendor analogous to that of a vendor in an opposite case. Payne v. Atterbury, Har. Ch. 414. In Michigan State Bank v. Hastings, 1 Doug. (Mich.) 258 (41 Am. Dec. 549), this language is used:

“No principle is now better settled than that the vendee of lands becomes a trustee to the vendor for the purchase money, or so much as remains unpaid. 2 Story, Eq Jur. 463-465. In such a case the trust is implied, and arises from what are called ‘equitable liens,’ of which courts of equity alone take cognizance. Such liens exist independently of any express agreement, and courts of equity enforce them on the principle that a person, having gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not pay the consideration money. The Roman law declared the lien to exist in natural justice, and this principle, which is now ingrafted in the equity jurisprudence both of England and this country, was borrowed from the civil law. By that law the rule was equally applied to the sale of movable and of immovable property. 2 Story, Eq. Jur. 408.”

Sears v. Smith, 2 Mich. 243.

In Huxley v. Rice, 40 Mich. 73, this language is used:

“It is the settled doctrine of the court that, where a conveyance is obtained for ends which it regards as fraudulent, or under circumstances it considers as fraudulent or oppressive, by instant or immediate consequence, the party deriving title under it will be converted into a trustee, in case that construction is needful for the purpose of administering adequate relief; and the setting up the statute against frauds by the party guilty of the fraud or misconduct, in order to bar the court from effective interference with his wrong-doing, will not hinder it from forcing on his conscience this character as a means to baffle his injustice or its effects. 2 Comp. Laws 1871, §§ 4692, 4693; 1 Story, Eq. Jur. §§ 330, 333; 2 Story, Eq. Jur. §§ 1254, 1265; 1 Spence, Eq. Jur. 511; 2 Spence, Eq. Jur. 194, 294, et seq.; Hill, Trustees, 144; Mestaer v. Gillespie, 11 Ves. 621; Pickett v. Loggon, 14 Ves. 215, 234; Barnesly v. Powell, 1 Ves. Sr. 284, 289; Young v. Peachy, 2 Atk. 254, 257; Brown v. Lynch, 1 Paige, 147; Hutchins v. Lee, 1 Atk. 447; Wolford v. Herrington, 74 Pa. St. 311 (15 Am. Rep. 548); Gregory v. Williams, 3 Mer. 582.”

See, also, Miller v. Aldrich, 31 Mich. 408.

In the case of Tysen v. Railway Co., 15 Fed. 763, it is said :

“When the consideration for conveyance of property is the payment by the vendee of the debt of a third person, a lien exists upon the property conveyed for the benefit of such third person. Nichols v. Glover, 41 Ind. 24; 2 Story, Eq. Jur. § 1244; Clyde v. Simpson, 4 Ohio St. 445; Vanmeter’s Ex’rs v. Vanmeter, 3 Grat. 148; Harris v. Fly, 7 Paige, 421; Hallett v. Hallett, 2 Paige, 15.”

In Lee v. Newman, 55 Miss. 365, this language is used:

“Nor is an obligation to pay the debts of the vendor to a third person, though in parol, obnoxious to that provision of the statute of frauds which requires all undertakings to pay the debts of another to be in writing. Such assumptions are not within the statute. The contract is, not to pay the debts of another, but to pay the party’s own debt to some person other than his own creditor.

“ ‘It maybe stated as a general rule that wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although, the performance of it may incidentally have the effect of extinguishing the liability of another.’ 3 Pars. Cont. (5th Ed.) 24

“The statute of frauds was intended to protect from the enforcement of parol contracts to be answerable for the liabilities of others, but not to shield a party from the performance of his own contracts, though the effect of such performance would liquidate also the liabilities of another. Nor will it make any difference that the liability of the original debtor continues after the assumption by the new one. The contract not being within the statute, this cardinal test of whether it is a collateral or an original undertaking (see Sweatman v. Parker, 49 Miss. 19, and Bloom v. McGrath, 53 Miss. 249) does not apply. It is not the debt of another, but his own debt, which he has promised to pay; and neither the fact that the payment is to be made to a third person, nor the fact that in paying his own debt he extinguishes that of another, nor the fact that- the liability of that other continues the same after as before his undertaking, brings it within the statute. * * * Especially will this right to bring suit in his own name exist in behalf of him for whose benefit the promise was made where the consideration of it was money or property simultaneously delivered or sold to the promisor. In such case the property is received under a trust, which will itself form a good consideration, inuring to the benefit of him to whom the payment is due; and, if the purchaser has received credit for the sum thus contracted to be paid to such other person, the law will treat it as money had and received to his use. 1 Chit. Pl. 5; Arnold v. Lyman, 17 Mass. 400 (9 Am. Dec. 154); Hall v. Marston, 17 Mass. 579; Dunlop v. Silver, 1 Cranch, 429 (Append.); Barker v. Bucklin, 2 Denio, 45 (43 Am. Dec. 726); Hendrick v. Lindsay, 93 U. S. 143; Lawrence v. Fox, 20 N. Y. 268; 1 Pars. Cont. (5th Ed.) 466-468.

“In Dearborn v. Parks, 5 Greenl. 81 (17 Am. Dec. 206), and in Whitbeck v. Whitbeck, 9 Cow. 266 (18 Am. Dec. 503), the exact question here involved was presented. The purchasers of real estate had assumed (in one case in writing, and in' the other by parol) to pay a portion of the purchase money to creditors of the vendor. Though these creditors were not parties to the contract, it was held that they could recover the amounts so promised to be paid them by direct action in their own names. A personal recovery in such a case would not be permissible, as before remarked, under the construction of the statute of frauds announced in Marqueze v. Caldwell, 48 Miss. 23, but, as we have seen, the vendor could assert his lien against the land. There can be no good reason for denying the same remedy to him for whose benefit the assumption was made. By reason of the assumption, the purchaser has obtained a diminution in the amount paid to the vendor, and has taken the land charged with an equity in favor of a third person. A court of equity, in analogy to that principle which in a court of law would enable such third person to maintain an action of assumpsit if there was a personal liability incurred by the vendee, will permit him to assert against the land that trust which was fastehed on it for his benefit; and this he can do both against the vendee and against all deriving title through the conveyance, which gave notice upon its face that the purchase money was unpaid, and was to be paid to him.”

In Barrett v. Lewis, 106 Ind. 120 (5 N. E. 910), the court uses the following language:

‘' The lien which arises in favor of the vendor of land, or of the person to whom purchase money is due, is peculiarly of equitable cognizance. Equity has regard in such cases, as in others, for the substance, and not the mere form, of the transaction. Disregarding form, a court of equity will not permit substantial equities, which are clearly established, to be defeated by the interposition of merely nominal or technical distinctions. If, upon looking through the transaction, it appears that a debt is in fact part of the purchase price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien will be declared upon the land so acquired in favor of the person to whom such debt is due. This is clearly the result of the well-considered case of Dwenger v. Branigan, 95 Ind. 221, and the authorities there cited. * * * It is the unpaid purchase money which creates the lien, and it is of no consequence to whom the money is due, so that it can be regarded in equity as purchase money. The lien results from the transactions between the parties, and is manifested by all the circumstances attending each particular case. Boyd v. Jackson, 82 Ind. 525; Nichols v. Glover, 41 Ind. 24.”

In 2 Jones, Liens, § 1094, it is said: “The lien exists in favor of a third person to whom the vendee, at the vendor’s request, has agreed to pay a portion of the purchase money;” citing a long list of cases. See 2 Sugd. Vend. 376, note; 1 Perry, Trusts (5th Ed.), §§ 232-238.

The services rendered by the complainant converted a title about which there was a question into a valid title. For the payment of these services he was to receive a mortgage. Before he received it, the land was conveyed to the contesting defendants, who had knowledge of the agreement, upon their promise to pay as a part of the consideration this claim of complainant, which was recognized by the Wellers. The land has been deeded. Refusal of payment is now made. Does the claim that the title to the land can be held, and the vendees be relieved from the payment of the consideration, appeal to one’s conscience? We think not, and we think the equity power of the court is sufficient to prevent such a wrong, and do not doubt, under the authorities cited, the circuit judge was fully authorized to make the decree he did.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    SMURTHWAITE v. NEWS PUBLISHING CO.
    1. Libel — Candidates for Office — Newspaper Criticism.
    While newspapers are allowed a great deal of latitude in the discussion of matters involved in an election, and of the fitness of candidates for office, the law of libel requires them to observe in their statements of fact an honest regard for the truth.
    2. Same — Provocation—Evidence.
    In an action for libel, defendant may show that the publication was in reply to previous publications of plaintiff charging defendant with disreputable conduct, and may have the provocative publications admitted in evidence.
    3. Same — Malice.
    Where a published article is libelous and untrue, and is not justified by the circumstances of the case, the publication is actionable, irrespective of the question of malice.
    4. Same — Law of Retort.
    Where, in an action for libel, defendant claims that his publication was provoked, and was written in self-defense, to make such defense available his retorts must have been necessary to his defense, or such as fairly arose out of the charges made.

      Error to Manistee; McMahon, J.
    Submitted January 31, 1900.
    Decided June 5, 1900.
    Case by Thomas Smurthwaite against the News Publishing Company for libel. From a judgment for defendant, plaintiff brings error.
    Reversed,

      J. Byron Judkins and Charles A. Withey, for appellant.

      Dovel & Smith, for appellee.
   Moore, J.

In April, 1898, the plaintiff, who was then mayor of Manistee, was a candidate for re-election. The campaign engendered a good deal of feeling. It was claimed that certain of the citizens of Manistee desired to sell to the city the plant owned by a waterworks company for a large price. The question of increased valuation of property was also made an issue. It was claimed the ticket with which plaintiff was affiliated represented one side of these questions, and that the defendant company was controlled by the men who represented the other side of the controversy. The plaintiff had access to the columns of a newspaper, and contributed a number of articles to the bitter newspaper war which was waged. After the election was over, he sued defendant in an action of libel. The case was tried before a jury. The charge of the court, so far as it is material to state here, was as follows:

“It is claimed on the part of the plaintiff here that a certain publication made by the defendant in a newspaper called the Daily News attributed to the plaintiff conduct which tended to bring him into disgrace and disrepute, hatred, contempt, and ridicule, and which article was libelous, and forms the basis of a right of action. That part of the article which is complained of is as follows:

“‘Isn’t Mr. Smurthwaite the gentleman who held the office of prosecuting attorney for two terms in Manistee county, under a Republican administration, and received §4,800, when he was not a citizen, and as a lawyer knew that he was illegally holding the office and receiving compensation for the same ? ’

‘ ‘A couple of days later this appears:

“ ‘ We are patiently awaiting an answer from Mayor Smurthwaite in regard to his receiving salary as a public official while hot a citizen of the United States.’

‘ ‘And a couple of days later still:

“ 'We are pleased to see Mayor Smurthwaite sign his name to one of his editorials, and must acknowledge that his explanation is very fluent, and to the point. The News made a simple statement of facts. He has answered it, and acknowledged its truth.’

“Now, the part of this article which I regard as libelous, if it was printed of and concerning the plaintiff, and is false and malicious, is as follows: ‘ And as a lawyer knew that he was illegally holding the office and receiving compensation for the same.’ The first part of the article, ‘Isn’t Mr. Smurthwaite the gentleman who held the office of prosecuting attorney for two terms in Manistee county, under a Republican administration, and received $4,800, when he was not a citizen?’ — that part standing alone,— I do not think is libelous. It is a mere question, and there was a question as to Mr. Smurthwaite’s citizenship. To say the least, it was open to doubt; and the mere speaking of the words or the publication of the words contained in the question as to whether he is the same person who held the office and received the salary when he was not a citizen, — I say the publication of that part of the article, — I do. not think would be libelous. It would not necessarily tend to bring him into disrepute and disgrace. But the -last part of the question, which intimates that Mr. Smurthwaite knew that he was illegally holding the office and drawing the compensation, if it is false and maliciously published, is libelous, in my judgment. The two articles published on subsequent days, standing alone, in my judgment, are not libelous, and they are admitted as being a part of the general charge, and explanatory of the attitude of the defendant towards him. Now, if the plaintiff is entitled to recover at all at your hands, gentlemen, it is for the publication of this one article, and no other. Other articles have been introduced here, but they are collateral, and explanatory of the main charge, and cannot of themselves form any basis for a recovery in the case. The whole case rests upon this article,— upon the charge of Mr. Smurthwaite holding the office of prosecuting attorney for four years, and that he drew this salary, when he knew that he was not a citizen of the United States, and not entitled to hold the office. The plaintiff introduced this article. It was received in evidence as being possibly, at least, libelous, and the foundation of a right of action. * * *

“Now, on the other hand, the defendant, when it came to the defense in the case, introduced certain articles, several of them, for the purpose of showing that the plaintiff provoked the controversy in question. These articles have nothing to do as a foundation for a right of action, and this one article is the foundation of the case. Still, gentlemen, these articles were introduced for the purpose of showing that the plaintiff was the aggressor; that he commenced the controversy by articles written prior to this one of which he complains, of a provoking nature, and calculated to engender the dispute which subsequently arose. This much, gentlemen, for the purpose of clearing the atmosphere, and impressing upon you that these other articles which were introduced by the respective parties are not a part of the cause of action, but are explanatory of the attitude of the parties, and their state of mind, and their rights in the case. * * * This article which I have read to you, and which forms the basis of this action, is a libelous article if it is false and published with malice, —published falsely" and maliciously. So, though it does not, perhaps, impute to the plaintiff the commission of a crime, yet it does charge him with a discreditable and disreputable act, if he knowingly, intentionally, and purposely held the office of prosecuting attorney of this county for four years, and drew the salary of the office, knowing that he was not entitled to it, that he was not a citizen, and was guilty of an act which was disgraceful in its nature, immoral, and subversive of good order and law; and therefore, if the defendant published this article, and it was false, and published it with malice, it was a libel, and, unless it was excused by some other fact, it would form the basis of the plaintiff’s right of action to recover damages in this case.

“The defendant, therefore, is liable for all damages which may have been occasioned by this article, unless it was excused by some other facts which I shall comment upon hereafter. Now, what is the defense? In the first place, the defense claims that the article was privileged. Now, a privilege, in this connection, is something which excuses the publication of that which would otherwise be libelous. Let me illustrate. What goes on in this courthouse daily is absolutely privileged. Suppose that I, in the course of this charge, say something which reflects injuriously upon some person here; suppose I attribute to such person a disreputable character, — no one could sue me for libel. Judicial proceedings in the courts are absolutely privileged, and what is said there cannot form the basis of an action for libel or slander. The attorneys, in the course of their arguments, are privileged. And this is because it is our duty to speak. We have no option in the matter. We are bound to discuss these things, and we do it in pursuance of our official duties, and cannot be held liable. Therefore, this is what is known as privileged. * * * Legitimate criticisms of public matters and public men, in which the public generally are interested, are qualifiedly privileged; and, unless they are spoken falsely and maliciously, without due rdgard for the rights of others, and with a bad and wicked purpose, they can form the basis for no action for slander or for libel. And this privilege, in a general way, applies to the discussion of the character of candidates for public office. When a man declares himself a candidate for a public office, one to which the people are asked to elect him and choose him, the people have a right to know what manner of man he is, — whether he is capable of filling the office with credit, honestly, and efficiently. Every one has'an interest, and the public newspapers, which are organs of public opinion, and are justified in a large degree by the enlightenment which they furnish to the public, have a right to discuss such candidates for office, and discuss their qualifications, and to tell the people fearlessly what manner of men they are, and whether they are fit candidates for the office which they seek. In carrying out and performing this public duty, a newspaper may comment severely and caustically upon the candidate. It may frankly express its opinion as to the candidate’s qualifications for the office, his fitness for it, so long as these discussions are confined to frank and fair statements of opinion. But the newspaper must not publish false and malicious statements of fact. It has no right to state that a man is a thief falsely, when he is a candidate for office, even though the paper may be opposed to him politically and otherwise; but it has a right to candidly and fairly discuss his qualifications, and to tell the truth about it in a fair and legitimate way. But it must not make false and malicious statements of fact. It must not vilify him generally, and without regard to truth. It must confine itself to a legitimate discussion of his qualifications and of his character so far as that relates to his capabilities and qualifications for the office. In this case, any article published by the defendant which was a fair discussion of Mr. Smurthwaite’s qualifications and fitness for the office of mayor of this city would be privileged, and, if it was spoken without malice, could form the basis of no action in this court for libel; but statements which are false, and made maliciously, are- not justified by the privilege, and no man who makes a false or malicious statement can claim that it is privileged. The privilege only extends to that which is true and to matters of opinion.

“ The defense further claims that the article in question was provoked, and was written in legitimate self-defense. One who introduces a newspaper controversy, and himself provokes it, cannot be heard to complain in a court if he gets the worst of the bargain. That is subject to this limitation, gentlemen: When a man enters the arena, and challenges all comers, so to speak, in a newspaper controversy, and he subjects himself to replies and retorts to what he writes, he cannot complain of an article which is not false and malicious, written in reply to that which he has written and published himself. If Mr. Smurthwaite, the plaintiff here, wrote articles in the Herald charging this newspaper, the Daily News, with dishonesty and disreputable conduct, and charging its stockholders and directors with disreputable and disgraceful conduct, the Daily News would have a right.to reply to such articles, and reply somewhat severely. No exact measure can be made of a man’s right of self-defense, either as to his person or reputation., He may hit back, and defend himself; and when he is forced to it, even if he goes further than the strict necessities of the case require, he is not liable; he has a right to make his defense sufficient and complete. But the publication by the plaintiff of provocative articles would not justify general defamation, and would not justify any false or malicious statements against him. It would justify legitimate replies to his article, and legitimate criticism thereon. The defense claim that Mr. Smurthwaite began the controversy. They assert that in the month of March the articles appeared in the Herald written by Mr. Smurthwaite, reflecting severely upon the Daily News, and upon its stockholders and directors; and that those articles which have been introduced here as tending to show malice, and the article which is here as the foundation of the plaintiff’s claim for damages, were provoked or drawn out by Mr. Smurthwaite’s articles in the Herald, and were legitimate replies thereto. Now, if that be so, and the article in question here is not malicious, it is a defense, and your verdict should be for the defendant. One may defend himself in good faith, and may criticise the statements of one who invites newspaper controversy. But no amount of provocation will .justify a falsehood and malice. If you find the article complained of was both false and malicious, the defendant can claim no privilege; but if it was called out by the articles written by the plaintiff himself, and published in the Herald, and was a reply thereto, or if the article was true as a matter of fact, then the plaintiff is not entitled to recover.

“I have spoken about this term ‘malice’ several times in the course of this charge. Malice in law, for the purpose of this case, perhaps, would mean any improper or wrongful motive, hatred, ill-willj vindictiveness, recklessness, or disregard for the rights of others. These attitudes of mind are what the law means by malice. Now, malice is either express or implied, as the law says. Express malice is that malice which may be proven by extrinsic evidence, as if they should prove in this case that Mr. Lee actually hated Mr. Smurthwaite, and had a grudge against him, and was writing about him for the purpose of injuring him, maliciously and angrily, and in a spirit of hatred and vindictiveness. Implied malice is malice which is implied from the character of the article. Now, a false and malicious statement of fact is presumably malicious in law. Malice may be rebutted by proof, but, on the face of it, any statement which is false, and tends to injure the aggrieved party, is malicious. * * * This article, on its face, if it is not true, is libelous. It imputes to the plaintiff disreputable conduct. If it is true as a matter of fact, the defendant, acting in good faith, had a right to publish it; if it was false, it had not, unless it was called out by due provocation, and was written in self-defense. The article may be privileged as a matter of law if, in your judgment, it was written in good faith, without malice, and was a legitimate criticism of the plaintiff as a candidate for public office; the article may be justified if you find it was a legitimate matter of self-defense, and was provoked by adequate provocation on the part of the plaintiff; otherwise, the article is libelous, and carries with it the right to recover damages.”

The jury returned a verdict in favor of defendant. The case is brought here by the plaintiff.

A great many of the assignments of error relate to the refusal of the court to permit certain publications to be offered in evidence, the circuit judge holding they were not libelous. These publications were discussions of the matters involved in the election, and of the fitness of the candidates for the offices for which they sought election. A good deal of latitude must be allowed to newspapers and individuals in discussions of this character. The rule is so fully stated in recent cases that we content ourselves with calling attention to them. Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Dunneback v. Printing Co., 108 Mich. 75 (65 N. W. 583); Eikhoff v. Gilbert, ante, 353 (83 N. W. 110). See, also, Odgers, Libel & S. pp. 32, 41; Bronson v. Bruce, 59 Mich. 467, 471 (26 N. W. 671, 60 Am. Rep. 307).

A large number of assignments of error relate to the admission in evidence of articles written by plaintiff which had been published with his consent, relating to the defendant newspaper and some of its stockholders. Defendant had the right to show by way of defense that the publications made by it were in reply to these communications. Their admission was not error.

A large number of the assignments of error relate to the charge of the court. The charge of the learned judge, in the main, was a correct exposition of the law of libel, but we think it contained some errors which might mislead the jury, like the following language:

“This article which I have read to you, and which forms the basis of this action; is a libelous article if it is false and published with malice, — published falsely and maliciously; * * * and therefore, if the defendant published this article, and it was false, and published it with malice, it was a libel, and, unless it was excused by some other fact, it would form the basis,” etc.

Our understanding is that if the published article is libelous, and is untrue, and is not a proper reply to the articles published by the plaintiff which provoked its publication, the publication would be actionable, irrespective of the question of malice.

We think, too, the judge stated the rule too broadly as to what may be published by way of self-defense in an action of libel, when the plaintiff provokes the controversy. In the recent case of Brewer v. Chase, 121 Mich. 526 (80 N. W. 575), the rule is clearly stated by Justice Hooker as follows:

“ It is contended that these statements were privileged, because made in self-defense, upon the theory that they discredit the plaintiff, and show him unworthy of belief. The law justifies a man in repelling a libelous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false. The court will determine whether the occasion is one which justifies such publication, but the question of good faith — i. e., malice — is for the jury. It must not be supposed that, when a libelous article is published, the person libeled is at once authorized to publish any and all kinds of charges against the offender, upon the theory that they tend to degrade him, and thereby discredit his libelous statements. If this were so, every libel might be answered in this way, and the most disgraceful charges made; the person making them being able to shelter himself behind his belief in their truth. The thing published must be something in the nature of an answer, like an explanation or denial. What is said must have some connection with the charge that is sought to be repelled. The claim is made that anything which tends to induce a disbelief of the charge is privileged. • In support of this proposition, defendant’s brief quotes the following:

‘“In some cases, so we have seen, the plaintiff’s conduct towards the defendant may be a bar to the action. If the plaintiff has attacked the defendant in the newspaper, and the defendant replies without undue personality, and without wandering into extraneous matters, then such reply, if made honestly in self-defense, is privileged.’ Odgers, Libel & S. 306. ‘Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties which he owes to himself and to his family. Therefore communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, where such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.’ Id. 228.

‘‘ In this it is observable that the rule limits the privilege to retorts which are ‘necessary to the defense, or fairly arise out of the charges made.’ ”

The discussion in that case is so full and complete, and the collation of authorities so ample, we cannot do better than simply refer to it.

The judgment is reversed, and a new trial ordered

The other Justices concurred.


author: Long, J.

text:
    MENOMINEE WATER CO. v. CITY OF MENOMINEE.
    Municipal Corporations — Water Supply — Charter Provisions — Contractual Limitations — Repeal of Statute.
    The waterworks act (1 How. Stat. chap. 84), permitting municipal authorities to contract with companies organized thereunder for a water supply on such terms as they may agree upon, is a substantive and independent enactment, which becomes a part of the charter of a municipality availing itself of its provisions; and a general provision of a local charter subsequently enacted, limiting the taxing power of the municipality, will not work a repeal of the earlier act with respect to such municipality, so as to prevent it from entering into a contract thereunder involving an annual expenditure beyond the limitation prescribed in the later act.
    Case made from Menominee; Stone, J.
    Submitted April 3, 1900.
    Decided June 5, 1900.

      Assumpsit by the Menominee Water Company against the city of Menominee for rent of certain fire hydrants. There was a judgment for defendant, and plaintiff assigns error.
    Reversed.

      Brown & Trudell (William A. Lynch, of counsel), for appellant.

      L. D. Eastman (George G. Greene, of counsel), for appellee.
   Long, J.

This action was brought by the plaintiff to recover from the defendant city a balance due for rent of certain public fire hydrants, and for the supplying of water therefrom, from May 1, 1897, to November 1, 1897, in the sum of $1,920.84, and from November 1, 1897, to May 1, 1898, in the sum of $1,925, and interest. The action is based upon a contract between the city and plaintiff, arising out of certain ordinances of the city and the acceptance thereof by the plaintiff. The declaration contains a single special count upon the contract. The plea is the general issue, with notice under it, which, after stating that the assessed valuation of all the taxable real and personal property in the city for the year 1897 was $2,616,706, and for the year 1898 $2,419,629, proceeds to state—

“That, under the limitations of defendant’s charter, it is, and for several years last past has been, impossible for said city to levy and raise an annual tax sufficient, with all other revenues of said city, to pay more than $10,000 annually for a water fund or for the supply of water for said city, and at the same time levy and raise taxes sufficient to pay the other current and general expenses of said city, required to be levied and raised to meet its expenses and liabilities.”

The notice further states that the sum of $10,000 had been appropriated for water supply for each of said years, — ■

“And that there is now no money in the treasury of said city, or in any fund thereof, from which it can pay the claim of said plaintiff, or any part of it, or any claim for water or the supply thereof for the years 1897 and 1898; that the defendant city has prescribed by resolution and ordinance the sum of $10,000 as a reasonable and proper water rent or compensation for the supply of water to be furnished to defendant city, and as the most it can raise by taxation or pay under the limitations and duties imposed by its charter.”

The facts found by the court, and the admissions of counsel, so far as necessary to the questions here involved, are as follows: The city of Menominee was incorporated by the legislature in 1883. On the 5th day of May, 1884, the council of the city, by its resolution adopted on that day, declared that it was expedient to have constructed works for the purpose of supplying such city and the inhabitants thereof with water, but that it was inexpedient-for such city, under the power granted in its charter, to build such works. Thereupon and thereafter, on or about said day, the persons named in the declaration duly organized the plaintiff corporation for the construction of such works, under and pursuant to an act of the legislature entitled “An act to authorize the formation of companies for the introduction of water into towns, cities, and villages in the State of Michigan,” approved April 3, 1869 (Act No. 113, Laws 1869), and the acts amendatory thereof and supplementary thereto. By the ordinances of the defendant city'j approved May 7 and September 9, 1884, set forth in the declaration, and the acceptance thereof by the plaintiff as therein stated, a contract was entered into between the plaintiff and the defendant city for the supplying of said city and the inhabitants thereof with water. Subsequently, by ordinances of the defendant city approved November 26, 1890, and December 15, 1891, set forth in the declaration, and the acceptance thereof by the plaintiff as therein stated, the original contract between the parties was modified, and additional public fire hydrants provided for. Plaintiff constructed its said works in said city in the year 1885, and.at all times since the construction thereof has furnished water to said city and its inhabitants as prescribed and required by the terms of said ordinances, and has duly performed each and every term and condition of each of said ordinances by it thereby to be performed. _ /Ai the date of said ordinance approved November 26^/1890, it had 135 public fire hydrants in place and ijY'use by said city upon its water-pipe system, as recitedf in section 6 of said ordinance, and thereafter, and PYior to the 1st day of May, 1897, pursuant to said orcjJnance, it had, by direction of said defendant, erected Ml additional public fire hydrants, which were located by said defendant, and it then had, and has ever since maintained ready and in good order and condition, 276 public fire hydrants; and on the 1st day of June, 1897, the plaintiff, at the request and under the direction of said defendant city, erected 1 additional fire hydrant, and has ever since maintained the same ready and in good order and condition for immediate use. The defendant city has used, occupied, possessed, and enjoyed said 276 public fire hydrants ever since the 1st day of May, 1897, and the 1 public fire hydrant thereafter located, to wit, June 1, 1897, ever since said last-mentioned day, and still continues to use, occupy, possess, and enjoy the same. If the defendant city is bound by said ordinances and any contract or contracts formed by their acceptance, it became indebted to plaintiff November 1, 1897, in the sum of $6,920.84, and May 1, 1898, in the sum of $6,925, as alleged in the declaration. On February 17, 1898, defendant paid plaintiff $5,000 on account of water supplied by it to defendant between the 1st day of May and the 1st day of November in the year 1897, and on June 20, 1898, the further sum of $5,000 for water supplied by it to defendant from the 1st daj^ of November, 1897, to the 1st day of May, 1898, .and has not paid, and refuses to pay, any further sum or sums for water so supplied by plaintiff to defendant' during the periods aforesaid. The city enjoyed the use of the fire hydrants and the water supplied therefrom, and paid therefor according to the contract, without objection, down to June, 1897. On the 7th of June, 1897, the council adopted the following resolution : •

“Resolved, that the city clerk be,\avnd he is hereby, instructed to notify the Menominee WateivCompany that the city does not consider itself bound by the\terms of the ordinance constituting the alleged contract forXjSupply of water to the city and its inhabitants, and that ft can no longer comply therewith, as the rates fixed therein ^or hydrant rental have become excessive, and the am&jpt required to be raised therefor, with the other necessai^T running expenses of the city, is in excess of what the city can raise on its taxable property under the charter, and request the water company to meet in conference with the council or its representative, and arrange for such rates as will be just and reasonable, and within the power of the city to pay. Now, therefore, resolved, that the city pay the water company no further hydrant rental under its contract, but that it, offer to pay the water company for hydrant rental such compensation for the supply of water furnished by the company to the city as it shall deem just and reasonable, and as has been or may be appropriated therefor.”

The plaintiff was immediately notified of the passage of the foregoing resolution, and the same resolution appears to have been re-adopted March 7, 1898; and at a meeting of the council September 19, 1898, the report of the committee appointed under this resolution was adopted, of which report the following is a copy:

“Your committee, to whom was referred the water supply, respectfully report that they have had the same under consideration. This committee, together with a special committee, have held" several meetings with the Menominee Water Company, and have agreed with Mr: Lynch, president of the water company, that this council would appropriate $10,000 for payment of hydrant rental; $5,000 to be paid to the Menominee Water Company at the first meeting of the council in May and November, to be received by the Menominee Water Company without prejudice to either party; the Menominee Water Company to bring a friendly suit to test the validity of its contract; each party to pay its own costs. ”

The value of all the taxable real and personal property in the defendant city in the years 1897 and 1898, as shown by the assessment thereof for said years, was as follows: 1897, $2,616,706; 1898, $2,419,629. This was only 40 per cent, of its true cash value, as found by the court in the ninth finding of fact. For nine years, commencing with the year 1890, the taxable property in the city of Menominee was assessed at 40 per cent, of its true cash value. On these valuations the council ordered a tax of 1 per cent, to be levied, as follows: 1897, $26,167.06'; 1898, $24,196.29. This tax was ordered pursuant to section 5 of chapter 26 of the charter, and reached the limit of 1 per cent, provided for in that section. The third and eighth findings of fact are as follows:

“ (3) That prior to said ordinance passed May 7, 1884, there had been no appropriation made or tax levied by the council of said city, or otherwise, for a water fund, or for providing or paying for any supply of water, of for any expense or liability for the supply of water, pursuant to said ordinance, or otherwise; that prior to said ordinance approved November 26, 1890, there was an appropriation of $12,000, and no more or other, for the fiscal year in which said ordinance was passed, for a water fund, and for the expense and liability for the supply of water, pursuant to said ordinance.”

“(8) That no proposition to make any appropriation or to use or raise any sum or sums to pay the hydrant rental or price for water payable by either of the ordinances and water contracts mentioned in the. declaration, or any part thereof, or to approve or sanction said ordinances and contracts, or either or any of them, was ever submitted to or voted upon by the electors of said city; nor was any amount ever authorized to be raised by tax or loan or otherwise for such payment, or for the payment of any water supply, by any vote of the electors of said city, pursuant to sections 14, 20, or 21 of chapter 26 of the charter of said city, enacted in 1883, or otherwise.”

The population of the city of Menominee in the years named was as follows: 1889, 5,557; 1890, 10,630; 1894, 12,532.

The court found certain conclusions of law, which were severally excepted to, and error was assigned thereon. The tenth, eleventh, and twelfth assignments of error are as follows:

“10. The court erred in rendering judgment in favor of the defendant and against the plaintiff in this cause, for the reason that the facts found by said court do not support said judgment, and, further, because, upon the facts found by said court, the plaintiff was, as a matter of law, entitled to judgment in its favor.

“11. The court erred in not rendering judgment for the plaintiff, because, upon the facts found by the court, the plaintiff was, as a matter of law, entitled to judgment in its favor.

‘ ‘ 12. The finding of the facts by the court does not support said judgment.”

The court made no finding of law upon the affirmative defense set up in the notice under the plea hereinbefore mentioned.

It is the claim of the plaintiff (1) that by the ordinances of the defendant city, and their acceptance by the plaintiff company, a contract resulted; (2) that, if this is not true, then the ordinances constitute a continuing offer of compensation for the prescribed service under section 15, chap. 84, 1 How. Stat., known as the “ Waterworks Act,” so long as the ordinances remain in force.

The waterworks act makes alternative provisions for the supply of water. Section 12 provides:

“It shall and may be lawful for the municipal authorities of any city, village, or town in which any company is or shall be formed for the purpose of supplying such city, village, or town, and the inhabitants thereof, with water, to contract and agree with such company for the supply of water for public, municipal, or other purposes, and for the time and mode of payment, and may issue their obligations therefor.”

Section 15 provides:

“Whenever any such company shall have been duly organized, it shall be the duty of the common council of any such city or village, or the proper authorities of any such town, by ordinance,- to grant to such company such right to the use of t-he'streets, alleys, wharves (if any), and public grounds of said city, village, or town as shall be necessary to enable such company to construct the proper works for the supply of water for the use of such city, village, or town, and its inhabitants; and the said common council may, in such ordinance, prescribe such just and reasonable terms, restrictions, and limitations upon such company in reference to the manner of using streets, alleys, wharves, and public grounds, to the charging and collecting of tolls, water rents, or other compensation for the supply of water to be furnished by such company to such city, town, or village, and its inhabitants, as it may deem proper to guard against the improper use of such streets, alleys, wharves, and public grounds, and to protect said city, town, or village, and its inhabitants, from the imposition of undue or excessive rates or charges for the supply of water; but no such restriction shall be imposed which will prevent such company realizing upon its capital stock an annual income or dividend of ten per cent., after paying the cost of all necessary repairs and expenses, interest on all moneys borrowed, and five per cent, per annum into sinking funds for the extinguishment of funded debts.”

It is contended by counsel for the city: (1) That the city had no power to make the contract sued upon, for the reasons (a) that the city charter prohibits it; (b) that the contract is not saved from the prohibition by chapter 84, 1 How. Stat. (2) That there can be no recovery without the contract. It is also contended by the city that there is a conflict between the waterworks act and the charter, and that, the charter being the later expression of the legislative will, it must prevail. On the other hand, it is claimed by counsel for plaintiff that the act, ex proprio vigore, does not affect any city in the State; that it is permissive, and not obligatory; that it becomes effective in such cities, and in such cities only, as shall choose to avail themselves of its provisions; and that, therefore, within the contemplation of the legislature, the act was to have the same application to cities thereafter organized as to cities existing at the date of its passage.

It is admitted by plaintiff’s counsel that, under the provisions of section 15 of chapter 26 of the original charter (Act No. 228, Local Acts 1883), a contract could be made only for a period not exceeding one year, and only in pursuance of a prior appropriation. It is said, however, that the city was embarrassed by that restriction, and in this emergency the legislature, speaking to it in the waterworks act, said:

“If you deem it expedient to have waterworks constructed, but inexpedient to build such works under the power granted you by the charter, then you may avail yourself of the provisions of this act. You are not bound to do it. The act does not touch you or affect you unless you so elect. But, if you would enlarge your power so that you may contract for a supply of water from the one year prescribed by your charter to any number of years less than thirty, you are privileged to do so.”

But the court below was of the opinion, and so stated:

“That chapter 84, 1 How. Stat., enacted in 1869, and the provisions of the charter of Menominee, enacted in 1883, are in pari materia, and cover the same subject-matter ; that a subsequent legislative act repeals all prior acts repugnant to it; that the last expression of the legislative will must be carried into effect as the law of the land. * * * Here the later law is the local, special act, and the prior law a general one. * * * Chapter 84 relates to all the cities of the State, as they existed at the time of its enactment. Defendant’s charter relates to the defendant city, and was enacted 14 years later than said chapter 84.”

The court therefore held that chapter 84 did not save the contract from the charter prohibition.

Counsel for plaintiff contend, however, that the court below was in error in its conclusion. It is their contention that it is inaccurate to say that the prior law is a general one, in the sense in which that phrase is commonly applied to ordinary legislation, operating by force of its own terms throughout the State or a limited district of the State; that the act comes into being, and thereupon becomes local and special, as to every city which avails itself of its provisions; that it speaks from the date of its adoption; that the charter deals with the ordinary conduct of the affairs of the city; that the waterworks act deals solely with the subject of waterworks and a water supply, and that therefore these special provisions in regard to this particular subject should prevail over "the general provisions of the charter; that this view of the subject is consistent with, and leaves untouched, section 5, chap. 26, of the charter, which reads as follows:

“The aggregate amount which the council may raise by general tax upon the taxable real and personal property in the city for the purpose of defraying the general expenses and liabilities of the corporation, and for all purposes for which the several general funds mentioned in section three of this chapter are constituted, exclusive of taxes for school and school-house purposes, shall not, except as herein otherwise provided, exceed in any one year one per cent.”

We think the court below was in error in its conclusions. The Constitution of this State, by section 13, art. 15, provides for the organization of cities and villages, and provides that the legislature shall restrict their • powers of taxation, borrowing money, contracting debts, and loaning credit. Subject to such general restrictions, the powers to be granted cities aró left to the discretion of the legislature. The discretion of the legislature may as well be exercised in an independent statute as in the charter itself, and'it was properly exercised in relation to the subject of this contract under the waterworks act. The waterworks act is a substantive and independent enactment. The city having availed itself of its provisions, the act stands a part of its charter, as a separate chapter dealing with the specific subject of a water supply.. When so read, the case comes directly within the principles laid down in Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234). The court below, however, was of the opinion that the contract was invalid under the rules laid down in Putnam v. City of Grand Rapids, 58 Mich. 416 (25 N. W. 330); Niles Waterworks v. City of Niles, 59 Mich. 311 (26 N. W. 525); Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558). The case of Putnam v. City of Grand Rapids, however, turned upon the construction of the charter of that city. In Niles Waterworks v. City of Niles it appeared clearly that the contract was under. the charter. It was treated so, and there was no claim in the case that any reliance was placed upon the waterworks act as giving the contract validity. In Ludington Water-Supply Co. v. City of Ludington this court found authority in the charter to sustain the contract, and the question here raised was not presented.

The judgment below must be reversed, and a judgment entered here in favor of the plaintiff for the amount of its demand, with interest.

The other Justices concurred.