author: Watkins, J.

text:
    No. 12,115.
    John Fitzpatrick vs. The Daily States Publishing Company, Limited, et al.
    The authorities generally, English and American, hold the editor and publisher of a newspaper to the same rigid responsibility with any other person who makes injurious communications. Malice on his part is conclusively inferred if the communications are not true.
    It is no defence that same have been copied with or without comment from another paper; or that the information upon which an editorial article is based was obtained from the columns of another paper. It is no defence that the source of information was stated at the time of publication, and that the editor or publisher believed it to be true. The freedom of speech and the liberty of the press were designed to secure constitutional immunity for the expression of opinion; but that does not mean unrestrained license, nor does it confer the right upon the editor and proprietor of a newspaper to write or publish whatever he may choose, no matter how false, malicious or injurious it may be, without full responsibility for the damage it may cause.
    The modern rule with regard to the conditional privilege which newspaper publications enjoy is, that when the publication is made in good faith, in the órdi-
    ga nary course of the publisher’s business, with good motives and for justifiable ends, and without any intention to work injury to the reputation or character of the subject of it,theparty injured will be restricted in his recovery to actual damages; but the publisher is liable, not only for the estimated damages to credit and reputation, and such special damages as may appear, but also such damages, on account of injured feelings, as must, unavoidably, be inferred for the publication of such libel.
    As the law looks to the animus of the proprietor in permitting his columns tobe employed for the dissemination of calumny, circumstances may be shown in mitigation of damages.
    The instigating circumstances pointed out by the defendants being, that the administration of the government of the city of New Orleans had become so notoriously corrupt that suspicion, inthepublic mind, rested alike upon all those in any way connected with it, and urgently demanded investigation and reform, they aver, that as faithful and fearless public journalists, they felt in duty bound to direct public attention to this serious condition of affairs; and, consequently, -when Orlopp, an important city contractor, made the disclosures attributed to him in certain other city papers, they deemed it to be tbe discharge of public duty to make upon them the editorial comment that-is complained of: Seld, that while conceding the principle, the conclusion is denied, in the total absence of a plea of justification and proof of the truthfulness of the specifications in the article contained; for the law is justas studious to protect the reputation and character as it is the property of the citizen, and the public official from unnecessary, unseemly and unwarrantable aspersions upon the management and conduct of his office, through the columns of a newspaper.
    While it is undoubtedly true that the preservation of good and pure government, either in city or State, greatly depends upon a free and fearless expression of public sentiment through the columns of the journals of the country, yet it is equally true that same must and can be accomplished through the instrumentality of cogent, temperate and well-reasoned editorials, predicated upon facts, and not by means of hasty, intemperate and opprobrious criticisms and abuse, having no other foundation than the current local items published in some other paper. This rule, if adhered to, will greatly tend to the promotion of truth, good morals and good government.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      E. A. O’Sullivan and .George W. Flynn for Plantiff, Appellee.

      Gus A. Breaux for Defendant, Appellant.
    Argued and submitted May 4, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff demands of the defendants in solido one hundred thousand dollars as damages for a libel upon him personally, and as Mayor of the city of New Orleans, charging the libel to consist of an editorial article which appeared in the issue of the Daily States of July 23, 1894, a newspaper owned and operated by the defendant company, and which was chiefly edited at the time by its co-defendant, H. J. Hearsey.

He alleges that said newspaper article was scurrilous, malicious, defamatory and libelous, and that in writing and publishing said article said defendants were actuated by malice and a desire to injure his reputation and character, as well as to deprive him of the esteem of the public, and to exclude him from intercourse with men of honesty, and to render him odious and detestable. That not only was that article inspired by hatred and malice, but it was absolutely false, and wholly without foundation in point of fact.

The answer of the defendants is a general denial, coupled with a special defence, the substance of which is as follows, to-wit:

That the article entitled “A Den of Thieves,” which is alleged to have been libelous, was intended to and called the attention of the public to the corruption which it was the general belief then existed in the administration of the city government, and with a view to its investigation; that as a public journalist it was its duty, a,s well as its right, to comment upon all matters of public interest, and, as far as possible, direct attention to such facts, as it could ascertain, and that it did so in perfect good faith, and, in so doing, stated only what it believed to be true after careful investigation and inquiry; that respondents deny that they were actuated by malice, but they, on the contrary, aver that the sole motive and purpose of the publication was “to secure the advancement of the public interests, without the slightest care for individuals.”

That respondents asserted in the aforesaid article that the statements were made chiefly upon the representations which a certain designated contractor with the city had made to a contemporary newspaper of the city, and that same were published in the regular course of business, as being of great public interest, and without malice, or personal feeling.

That it is the duty of an American newspaper to keep the public advised of all matters of general interest, and to aid in securing good and faithful government; and that they had the right to publish and comment upon all the events and facts surrounding the administration of the city government in good faith and without malice, and are nob therefor answerable in damages to any person or official.

Summarized, defendants’ answer is an averment that the publication charged to have been libelous was directed against corruption, Which was at the time generally supposed to exist in the administration of the city government, and that the disclosures were made with a view to their investigation, as it was the duty of a public journalist to have done. That, in so doing, they acted in good faith and stated only what they believed to be true after careful inquiry and investigation; and that same was done without malice, and solely for the purpose of securing the advancement of the public interest “without the slightest care for individuals.” Thatinmaking said statement defendants relied upon the statements which a city contractor had contemporaneously made to another daily newspaper of the city, and which they accepted and believed.

In addition, the defendants rest their defence upon the liberty and freedom of the press.

The case was tried and decided by the judge without the intervention of a jury; and from a judgment in favor of the plaintiff for the sum of five hundred dollars, the defendants have appealed; and the plaintiff answered the appeal and prayed for the allowance to be increased to the full amount claimed.

The determination of this cause depends exclusively upon a proper-construction to be placed upon the alleged libelous article, as interpreted by the managing editor of the Daily States, who was the only witness introduced on the part of plaintiff — indeed the only witness, of consequence, who testified in the cause.

In the course of his interrogation, many exceptions were taken and bills of exception reserved pro et con; but the tenor of the judge’s rulings thereon was, that the witnesses’ statements were admissible for the purpose of mitigating damages and not to prove justification, as no plea of justification had been made in defendant’s-answer. We are of the opinion that the ruling was sound and conservative, and in strict conformity to the pleadings.

For it appears from the transcript that during the progress of the trial an effort was made on behalf of the defendants to prove the truth of the charges laid in the alleged libelous article; but objection having been raised to its admissibility, on the ground that no justification was pleaded in thé answer, same was sustained and the testimony rejected; but while thus ruling the judge offered the defendants an opportunity to amend their answer instanter and make the plea — without objection being made by the plaintiff — but the offer was declined.

The article complained of as libelous we have extracted from the paper filed in evidence, and reproduce same in its entirety, as follows, viz.:

“ THE DEN OF THIEVES.
“ Three members of the City Council have been indicted by the grand jury, and charges of equally as disgraceful a nature have been made against others and also against the Mayor. Under the peculiar laws of Louisiana the Criminal District Judge has felt bound to quash these indictments, and there is a general feeling of disgust throughout the community at the possibility, if not the probability, of these rascals escaping punishment for their crimes.
“ It is true that an indictment'is not a verdict of guilty; but the evidence on which these indictments were found is common property, and on that, together with corroborative circumstantial testimony, these men have been found guilty by the people and in the eyes of the people they are guilty, just as though they had been pronounced so by a jury and sentenced to the penitentiary by the judge. They may escape the penalty of the law, but they can not escape the condemnation and contempt of their fellow-citizens. The brand, not of Cain, but of the blackmailer and the sneak thief, is on their brows, so indelibly fixed that it will burn there in lurid letters until the coffin and the grave shall close over them forever, and their names and their acts of infamy have passed out of the memories of men. Go where they may the cry will follow them, ‘ Behold the bribe-takers.’
“ It is distressing to think that, while the judge regards the law under which these rascals were indicted as repealed, the District Attorney and his assistant believe that the act which the judge holds repealed the law under which the indictments were found is utterly insufficient to meet the case, and hence, with a Council of blackmailers and bribe-takers on our hands, there is no law in Louisiana under which they or any one can be brought to justice.
“And while this is the situation as to the Councilmen already indicted, anew and wider view of corruption has been opened before us. We have already printed the statement of Mr. Orlopp, the contractor for building the new court house and jail, showing how he was fleeced by the gang and the friends of the gang.
“ It has been shown by that statement that Mayor Fitzpatrick, after he came into office, pretended to discover that the bond which the previous administration had found was entirely satisfactory was defective, and forced the contractor to make a new and local bond, composed of the Mayor’s friends, and to pay these bondsmen five thousand dollars for their names.
“It has also been shown that the firm of Manion & Co., of which the Mayor, or his wife, which is the same thing, is the chief partner, endeavored to force from the contractor twenty-five thousand dollars for a job which another contractor had offered to do for-ten thousand five hundred dollars, and that, finally, in fear of the power of the Mayor, and with a full knowledge that the Mayor would exercise his power, the contractor did give the Mayor’s firm fifteen thousand dollars, or about five thousand dollars more than the lowest bid for the job, and thus gave up five thousand dollars of' his legitimate profits under the Mayor’s command to ‘ stand and deliver.’
“ It has also been shown that Oity Engineer Brown took from the' contractor the work of paving and gave it to his chum, and, nO' doubt, partner in jobbery, Fritz Jahneke, at a higher price, thus-swindling the treasury in the interest of a favored individual. >
“It has also been shown that at the dictation and under the-threats of Brown the contractor was forced to give the glass work' and interior woodwork to Mr. Henry Wellman’s company, in which Brown is a stockholder, at a larger price than other parties had bid for it, and that inferior glass was put in and inferior woodwork done; that Brown accepted this inferior material and work and the contractor was thus swindled out of a part of his profits and the public swindled in the quality of the work.
“ All these facts have been shown and no serious denial has been made by the parties inculpated in this rascality and these swindling-operations.
“ So far all these grave charges rested chiefly upon the statement-of Mr. Orlopp, the contractor, who had been held up and robbed by the Mayor, the city engineer, Fritz Jahneke and the firm of Henry Wellman, Brown & Co. But another witness has appeared on the scene. Mr. Ligón was the partner and co-contractor of Mr. Orlopp. Mr. Ligón knew all the facts in these transactions and was really better informed than Mr-. Orlopp, since it was through him that the blackmailers chiefly did their bulldozing. Mr. Ligón suddenly disappeared from the city when it was noised about that he was wanted by the grand jury, and much speculation was indulged in as to his-whereabouts and his motive for leaving the city. He was finally located at his old home in Pittsburg, Texas, and our enterprising-contemporary, the Times-Democrat, sent a reporter to find him and interview him. The T.-D.’s representative was successful, and that journal prints a dispatch giving a part of Mr. Ligon’s statement, which the States reproduces in another column. It turns out that a member of the City Council (Mr. Ligón declines to give the name,except to the grand jury) gave him one thousand dollars and the assurance that seven thousand dollars due him and Orlopp on their contract, and which the boodlers were and are holding back, would be promptly paid him if he would escape the deputy sheriffs and leave the city. The one thousand dollars were paid Mr. Ligón, but the promise to pay the seven thousand dollars due on the contract has not been fulfilled; hence, Ligón feels no moral compunction about returning to New Orleans and testifying before the grand jury. He is right. The one thousand dollars is only a small part of the money the Mayor, the City Engineer and their friends and firms have robbed him of, and as the whole of the promise had not been carried out, Mr. Ligón should come forward and expose this whole scandalous business.
“Mr. Ligon’s statement, so far as it goes, corroborates all that Mr. Orlopp has said, and goes even further. He said to the T.-D.’s reporter:
“‘Had Mr. Orlopp or myself refused to do as Brown directed in giving out contracts to his friends and the concern in which he was a director, he would have ruined us both by refusing to approve our work, no matter how perfect it might have been; also by refusing to approve our bill, which would have forced us into endless litigation and financial loss.’
“ He further states that he and Orlopp were compelled to bribe a number of councilmen for peace and to escape wholesale robbery and ruin. and|he corroborates his partner’s statement that had the original plans and specifications been adhered to, the city would have had a much better building than they have now after the revisions and jobs of the Mayor, the City Engineer, Fritz Jahncke and Wellman.
“Is it possible, under our peculiar laws, for the District Attorney and his assistants to find a law that will hold and punish these jobbers and bribe-takers? We trust there may be. The scandals that have grown out of this contract and the other corrupt acts of the City Council have attracted the attention of the whole country, and if the corruptionists can not be punished under our criminal statutes, or are not displaced by impeachment under our civil statutes, New Orleans will wear the stigma of being ruled by blackmailers and bribe-takers without laws to punish them and without a population with the manhood to remove them from office.* The Council is little else than a den of thieves. If we can not send them to the penitentiary, let us impeach them and turn them out.”

The caption of the article is The Den of Thieves; and its opening sentence is that “ three members of the City Council have been indicted by the grand jury and charges of equally as disgraceful a nature have been made against others, and also against the Mayor.” Then follows the statement that these indictments had been quashed, coupled with the statement that “they may escape the penalty of the law, but can not escape the condemnation and contempt of their fellow-citizens. The brand, not of Gain, but of the blackmailer and the sneak thief, is on their brows, so indelibly fixed that it will burn there in lurid letters, until the coffin and the grave shall close over them together, and their names and their acts of infamy have passed out of the memories of men. Go where they may, the cry will follow them, ‘ Behold the bribe-takers!’ ”

In the same connection we find this statement, viz.:

“We have already printed the statement of Mr. Orlopp, the contractor for building the new court house and jail, showing how he was fleeced by the gang and the friends of the gang. It has been shown by that statement that Mayor Fitzpatrick, after he came into office, pretended to discover that the bond which the previous administration had approved as entirely satisfactory was defective, and forced the contractor to make a new and local bond, composed of the Mayor’s friends, and to pay their bondsmen- five thousand dollars for their names.”

• This is succeeded by the statement that the firm of which the Mayor was a member “endeavored to force from the contractor fifteen thousand dollars for a job which another contractor had offered to do for ten thousand five hundred dollars;” and that ‘finally, in fear of the power of the Mayor, and with full knowledge that the Mayor would exercise his power, the contractor did give the Mayor’s firm fifteen thousand dollars, or about five thousand dollars more than the lowest bid for the job; and thus gave up five thousand dollars of his legitimate profits, under the Mayor’s command to stand and deliver.’” (Our italics.)

After having enumerated the various charges, this general allegation is made, viz,:

“ So far, all of these grave charges rested chiefly upon the statemenb of Mr. Orlopp, the contractor, who had been held up and robbed by the Mayor," etc. (Our italics.)

Subsequently, the article makes this specific declaration, viz.:

The one thousand dollars is only a small part of the money the Mayor, the City Engineer and their friends and firms have robbed him of,” etc.

That these are most grave and serious charges against the plaintiff, in his capacity of Mayor of the city of New Orleans, there can be no doubt; and, smarting under them, he filed this suit on the day-after they appeared in the Daily States.

The managing editor of the paper, in the course of his testimony as a witness, makes the following explanation of his editorial article. The Den of Thieves, to-wit:

That, as managing editor of that paper, he wrote the article in question. That he was personalty acquainted with the plaintiff, who-was, at the time, Mayor of the city. Says the average daily circulation of that paper is at this time between 9500 and 10,000, though it was not so great at that time, and that four-fifths of its circulation is within this city.

He states that at that time the condition of the public mind in reference to the status of the city administration was very intense, “ and that the general feeling in the community was that the whole thing was rotten, and that jobs were being perpetrated, and that bribery and corruption prevailed on every hand at the City Hall * * * And the publication of Mr. Orlopp’s interview in the Times-Demoerat, in which these specific charges are made, were generally accepted as true.”

That it was upon that article that his editorial was chiefly predicated. Says he “ would not have made the charges if (he) had not-had that specific statement of Mr. Orlopp to proceed upon.” Says that he “ absolutely believed it to be true. When a man makes such a statement as that in so serious a manner (he thinks) he makes it upon his honor, the same as if he was before the court making a sworn statement.”

That he believed it was true then, and (he) felt it to be (his) duty to act as (he) did.”

He says that in writing and publishing the newspaper article that is complained of he was not actuated by malice toward the plaintiff; that believing “in the truth of the statement published by Mr. Orlopp (he) was absolutely satisfied that Mr. Fitzpatrick was guilty. And (he) therefore felt it to be (his) duty to make this attack in the interest of the public.” That he regarded a newspaper as the notary of the people; and when there is any act of corruption among any public officers (he) considers it the duty of the newspaper to take notice of it. But if a newspaper never was to .attack a rascal, until the truth of the charge was proven in a court of justice, no scoundrel on earth in office would ever be exposed;” and he “ thought (he) would be recreant to (his) duty as a public journalist if (he) did not expose what (he) thought to be rascality.”

He says he had no grievance against the plaintiff. That he never ■did him any harm. “ He never antagonized any interest that (he) had.” That he did it “ from a purely unselfish and patriotic standpoint.” That he thought the facts were proved, and it ought to be impressed upon the authorities; and that they ought to be brought to trial.”

He admits that he never had a personal interview with Mr. Orlopp •on the subjects mentioned in the editorial article which is complained of-; but that he thought the published statements in the Times-Demcorat were true. That he made no investigation as' to the truth or falsity of the charges made in said editorial, but acted in its .preparation and publication upon publications made in other newspapers, and the statements of other people.

The following is by plaintiff’s counsel, viz.:

“ Q,. Then when you wrote this statement, you had nothing to base your plea upon, except what you had read (in) other newspapers?
“A. Only the statement of Mr. Orlopp, and the general course of legislation of the City Council, which rendered it perfectly obvious to every intelligent and investigating mind that the things charged were true.
“ Q. Then the only investigations which you made was the reading of publications in other newspapers.
“ A. Yes; and the action of the Council and the general drift of their legislation.
¡¡t :{s #
“ Q,. Did you read Mayor Fitzpatrick’s denial of this charge?
“ A. I believe I did, but I did not place any particular faith in it.
“ Q. Then you believed the other statement without any investigation except from other newspapers?
“A. And from public opinion.
Q. Where did you get that public opinion?
“ A. From people in the city.
“ Q. I understand you to say that you do’not know Mr. Orlopp?
“ A. I don’t know him personally.
Q,. Before the publication of this article of July 23, 1894, did you ever see any newspaper article charging the Mayor with being a a robber, a holder-up, or a blackmailer?
"A. I don’t remember seeing that particular thing. I saw the facts published on which I based this article in other papers.”

Inasmuch as the testimony turns upon the statements which Mr: Orlopp made to the Times-Democrat, we have extracted same from the issue of that paper of date July 15, 1894, and reproduce them as follows, viz.:

“ When I obtained the contract for the building of the new court house and jail I was called upon by the old Council, then headed by the Hon. Joseph A. Shakspeare, to give a bond of one hundred thousand dollars for the faithful performance of my contract. I furnished a bond which was signed by a Galveston banker and a Galveston merchant.
This bond was a solvent one and perfectly satisfactory to that-body. In giving out the contracts the contract for lime, sand, cement and brick was given to J. J. Clarke. The New Orleans Manufacturing and Lumber Company got the glass work and interior-woodwork. The flooring furnished by this company was not in accordance with the specifications, and I objected to them, as did also-the daily superintendent appointed by Mr. Brown, the City Engineer. Notwithstanding this Mr. Brown accepted the work. Messrs. Manion & Co. obtained the steam-heating, the plumbing, gas fitting and the electrical work of the building, and I don’t think this work is up to the specification. Mr. Fritz Jahncke wanted the Schillinger work at one dollar and eighty cents a yard, but as I could have it done for one dollar and forty cents and one dollar and forty-five cents I would not let him have it. Mr. F. Codman Ford furnished the tiles and terra cotta flooring; Thos. Owens the slating, and P. F. Bailey the plastering. The Crescent City Cornice Works did the sheet iron and metal work, and the Whitney Iron Works did most of the iron work.
“ When the present Council came into existence Mayor Fitzpatrick insisted upon my furnishing a new bond for one hundred thousand dollars with local sureties. I protested, as the bond I had given was a solvent one and had been accepted by the Shakspeare Oouncil. In fact, I consulted some of the old Council and they told me to stand on my rights. But then I saw that I would be plunged into litigation and a world of trouble, and to avoid this I agreed to furnish the bond. City Engineer Brown named three of the bondsmen. He selected Fritz Jahncke, Henry Wellman and J. J. Clarke. I don’t know who selected the other two bondsmen. They were Henry P. Dart and T. W. Maroney. They signed the bond for me of one hundred thousand dollars, and in consideration thereof I was forced to pay them five thousand dollars. In lieu thereof I gave Mr. Henry Wellman five notes of one thousand dollars each, and in addition to this they forced me to give them an indemnity bond of one hundred thousand dollars, which was signed by the Pauley Jail Building Company of St. Louis, Mo.”

The only thing which is discoverable upon the face of this statement is, that when he (Orlopp) obtained the contract to build the new court house and jail from the Shakspeare administration, he furnished a bond with sureties residing in the city of Galveston, Tex., for one hundred thousand dollars; and when the Fitzpatrick administration came into power, Mayor Fitzpatrick insisted upon his furnishing a new bond “with local sureties.” He says he finally consented to this, under protest, and that the persons who signed his bond charged him five thousand dollars tor the service; but, notwithstanding their names are given, that of the plaintiff is not amongst them, and no charge of any sort in connection therewith is preferred against the plaintiff.

With regard to the bid of Manion & Co., with whom the plaintiff is alleged to have had some occult relations, we clip the following statement of Orlopp, from the Times-Democrat of July 18, 1894, viz.:

“ One of the most peculiar transactions connected with the building was the steam heating and plumbing, for which Messrs. Manion & Co. got the contract from me ” said Mr. Orlopp. “When I •was about to let this contract Messrs. Manion & Co. put in a bid for twenty-five thousand dollars. I could not listen to this proposition, as I had in my possession a bid from a Dallas firm for ten thousand five hundred dollars, and a bid from Mr. J. M. Ferguson for twelve thousand five hundred dollars. Manion then put iu another bid for fifteen thousand dollars, and promised me that if he was awarded the contract that he would have P. J. Maroney refund me the one thousand dollars that he had charged me for signing my bond for the faithful performance of my duty. For peace and policy sake, and this one thousand dollars consideration, I gave Manion & Co. the contract, and Manion & Co. gave over the one thousand dollars. Whether 'this work is according to contract and specification an Investigation can very easily establish.”

This statement is, that Manion & Co. obtained the contract from Orlopp for steam-heating and plumbing the new court house and jail. "That they put in a bid at twenty-five thousand dollars, but it was •declined because he had two prior bids at a lower figure. That Manion & Co. then put in a bid at fifteen thousand dollars, promising to rebate to him the sum of one thousand dollars, if same was awarded to them; and that he (Orlopp) accepted their proposition “for the sake of peace and harmony” — the other bids being ten thousand five hundred dollars and twelve thousand five hundred dollars, respectively.

We find quite a similar statement in regard to the one hundred thousand dollar bond in the Daily Picayune of July 16, 1894.

The foregoing is a fair summary of all the evidence ill the record. •Surely there is nothing in the extracts we have made from either the Times-Democrat or Picayune to justify the defendant’s editorial assumption that Mr. Orlopp had, in the matter of the bond, been “fleeced by the gang, and the friends of thegang;” or “ that Mayor Fitzpatrick, after he came into office, pretended to discover that the bond was defective and forced the contractor to make a new and local bond, composed of the Mayor’s friends,” etc.

There is surely no foundation therein for the editorial assumption that Manion & Co. “endeavored to force from the contractor twenty-five thousand dollars for a job which another had offered to do for ten thousand five hundred dollars; and that finally, in fear •of the power of the Mayor * * he did give the Mayor’s firm fifteen thousand dollars,” etc.

Nor do they show that this contractor had, in any sense, been held up and robbed by the Mayor.”

These fierce and unguarded utterances, in an editorial article appearing in a leading and influential public journal of a great and populous city, and directed against its chief magistrate, were destined to attract general attention and comment; and undoubtedly did the plaintiff great injury, personally, as well as officially, in his feelings, reputation and character. And, if untrue, they were libelous, and slanderous, in the extreme.

While admitting the authorship of, and the fullest responsibility for the editorial, the defendants do not aver, in their answer, the truthfulness of the statement and plead justification; but it is alleged to have been directed against corruption in the administration in the city government, and that the disclosures made were necessary in order to stimulate an investigation thereof, and the advancement of the public interest ‘-without the slightest care for individuals.”

That in making said statement, the editor solely relied upon the statement which a city contractor had made to another daily paper, and in the truthfulness of which he placed full confidence without making an investigation on his own account.

But it is shown by the testimony that even if the position of the defendants were perfectly tenable, that they had a right to rely upon the statements found in the local columns of another daily newspaper, and thereupon base an editorial article upon them as facts actually established, they did not conform themselves or the newspaper either to the reproduction of the statements therein made, or to proper and legitimate comments thereon. But, quite to the contrary, the defendants greatly enlarged the statement contained in the articles relied upon, employing the language of personal •denunciation and abuse under a mistaken notion of rendering a service to the city, regardless of the rights of the individuals assailed, and amongst them the plaintiff.

The caption of the article. “ The Den of Thieves,” was an appropriate heading for an editorial of -that character, though it is far from the view we entertain of the liberty of the press” to intimate that it can be excused or palliated on that ground.

While we feel free to admit that the preservation of good and pure ^government, either in city or State, greatly depends upon a free and fearless expression of public sentiment through the columns of the journals of the country, yet we are equally free to affirm that same must and can be accomplished by cogent, temperate and well-reasoned articles, predicated upon facts, and not in hasty, intemperate and opprobious epithets and personal criticism and abuse.

There is a marked and clear distinction to be taken between the liberty and the license of the press.

Judge Cooley states that “it is conceded on all sides that the' common law rules that subjected the libeller to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our Constitution.” Cooley’s Con. Lim., p. 420.

And that author approvingly quotes the rule announced by -Chief Justice Parker in Commonwealth vs. Blanding, 3 Pickering, 313, that “ the liberty of the press was to be unrestrained, bub he who used it was to be reasonable in case of its abuse; like the right to keep firearms, which does not protect him who uses them for annoyance or destruction.”

That author formulates the following rule upon the subject, which has met the unqualified approval of jurists and publicists, v.z.:

“The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the' citizens may please, and to be protected against any responsibility for so doing, except so far .as such publications, from their blasphemy, obscenity or scandalous character, may be a public offence, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. Or, to state the same thing in somewhat different words, we understand liberty of speech and of the press to imply nob only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords.” Id. 421.

And in treating of the right of action by the party injured by any publication, that author very justly observes:

“There are (at common law) many cases, also, where the law presumed injury, and did not call upon the complaining party to make any other showing that he was defamed than such implication as arose from the character of the communication itself. If it accused him of a criminal offence, involving moral turpitude, and siich as-would subject a party proved guilty of it to punishment by imprisonment; * * * if the charge affected the party in his business, office or means of livelihood, like charging a trader with insolvency or the like; or if any injurious charge holding a party up to public contempt, scorn or ridicule were propagated by printing, writing, signs, burlesques, etc., the law presumed injury, and the charge was said to be actionable per se.” Id. 425.

But to that general rule that author states the following exception, viz.:

“There are certain cases where criticism upon public officers, their actions, character and motives, is not only recognized as legitimate, but large latitude and great freedom of expression are permitted, so long as good faith inspires the communication.” Id. 431.

And, having commented on the authorities; he remarks that “recent English cases give considerable latitude of comment to publishers of public journals, upon subjects in the discussion of which the public may reasonably be supposed to have an interest; and they hold the discussions to be privileged if conducted within the bounds of moderation and reason.” Id. 440.

Kelley vs. Sherlock, 1 Law Reporter, 2 B., p. 686.

In confirmation of this opinion, the ease of Wason vs. Walter, L. R. 4, Queen’s Bench, 73, is cited, in which the proprietor of the London Times was prosecuted for criticism of certain debates in the House of Lords, and it was therein held that this was a subject of great public concern, on which a writer in a public newspaper had a full right to comment; and that the occasion was so far privileged that the comments would not be actionable “ so long as a jury should find them honest and made in a fair spirit, and such as were justified by the circumstances disclosed in the debate.”

Having given due attention to the authorities pro and con, that author makes the following summary of the law of privilege, in respect to newspapers, viz.:

“The question, however, is not new, and the authorities have generally held the publisher of a paper to the same rigid responsibility with any other person who makes injurious communications. Malice on his part is conclusively inferred if the communications are false. It is no defence that they have been copied with or without comment from another paper; or that the source of information was stated at the time of the publication; or that the publication was made in the paper without the knowledge of the-proprietor, as an advertisement or otherwise; or that it consists in a criticism on the course and character of a candidate for public office; or that it was a correct and impartial account of a public meeting, or of any proceedings in which the public have an interest,” etc. Id. 455.

Of the foregoing principles we find the following cases to be correct exponents, viz.: Hotchkiss vs. Oliphant, 2 Hill, 510; King vs. Root, 4 Wendell, 138; Sanford vs. Bennett, 24 N. Y. 20; Dole vs. Lyon, 10 Johns. 447; Mapes vs. Weeks, 4 Wendell, 659; Inman vs. Foster, 8 Wendell, 602; Andus vs. Wells, 7 Johns. 260; Huff vs. Bennett, 4 Sandf. 120; Martin vs. Van Schaick, 4 Paige, 479; Commonwealth vs. Nicholls, 10 Metcalf, 259.

. In King vs. Root, supra, the court announced the general rule to be “ to permit editors to publish what they please in relation to the character and qualifications of candidates for office, but holding them responsible for the truth of what they publish.”

Mr. Black, in treating of the “ freedom of speech and of the press,” in his recent treatise on American Constitutional Law, gives this interpretation of the constitutional guarantee, viz.:

“In respect to the privileges secured by this guarantee, and with regard to responsibility for its abuse, there is no difference between ‘speech’ and ‘the press.’ It is a mistake to suppose that there is a liberty of speech and a liberty of the press, which are in any way different or distinct. The constitutional provision is designed to insure immunity for the expression of opinion. And it makes no difference whatever whether.the opinion be expressed orally or in print. It is to be noticed that the constitutional guarantee here considered does not create any new right not previously understood to belong to the people.” Black’s Constitutional Law, Sec. 164.
“ But the freedom of speech,” says that author, “ and of the press, does not mean unrestrained license. It can not for a moment toe supposed that this guarantee gives to every man the right to speak or print whatever he may choose, no matter how false, malicious or injudicious, without any responsibility for the damage he may cause. The guarantee does not do away with the law of liability for defamation of character. On the contrary, that law is not only consistent with the liberty of speech and of the press, but is also one of the safeguards of those who may use, but do not abuse, this liberty.’’ Ibid.

In treating of the law of “conditional privileges,” that author says “a publication is said to be conditionally privileged when the author of it is not to be held accountable for its falsity if it was made for good ends and from justifiable motives’; but otherwise, if it was made with malicious intent to injure individuals.” Ibid.

In applying this precept to the case of a newspaper, that author formulates the modern doctrine thus:

“ It has often been claimed that the publishers of newspapers, in view of the peculiar nature of their business of gathering and disseminating news, should’ have a more liberal exemption from liability to the law of libel than persons engaged in other occupations. But this claim has never been conceded by the courts. The estab- ’ lished rule is, that when the publication is made in good faith, in the ordinary course of the publisher’s business, and without any intention to work injury to the reputation of the subject of it, the party injured by the false statement will not be allowed to recover anything more than his actual damages. Ibid. 480.

The author cites: Cooley’s Con. Law, 2 Ed. 293; Detroit Daily Post and Tribune Company vs. McArthur, 16 Michigan, 447; Perret vs. New Orleans Times Newspaper, 25 An. 170.

In the case first cited the court says:

“The law favors the freedom of the press so long as it does not' interfere with private reputation or other rights entitled to protection. And inasmuch as the newspaper press is one of the necessities of civilization, the conditions under which it is required to be conducted should not be unreasonable or vexatious.”

And they further say:

“When the wrong done consists in a libel — which can never be accidental — the publishing is, therefore, always imputed to a wrong motive, and that motive is called malicious. And, in the absence of any testimony showing the origin and circumstances of the publication, it stands before the jury as a voluntary wrong until palliated or excused; while the actual motive, whether intensifying or mitigating the moral guilt, may be shown to qualify it.”

Again:

“There is no doubt of the duty of every publisher to see at all hazards that no libel appears in his paper. Every publisher is, therefore, liable, not only for the estimated damages to credit and reputation, and such special damages as may appear, but also such damages, on account of injured feelings, as must unavoidably be inferred from such libel, published in a paper of such a position and circulation.” P. 453.

And in the case last cited by Judge Black — Perret vs. New Orleans Times Newspaper, 25 An. 170 — wherein the plaintiff claimed damages on the ground that the defendant had inferentially charged him with having committed a robbery, the court said:

“ We regard the doctrine as no longer controverted, that the publication of any communication * * * which is defamatory and false, subjects the publisher, as well as the author, to damages in favor of the party aggrieved. Circumstances may be shown in mitigation of damages. The law looks to the animus of the publisher in permitting his columns to be used as a vehicle for the dissemination of calumny, whereby the fair character of an individual may be blasted and his business prospects ruined. * * * The law imputes malice in the publisher, from the act of publishing the libel; not malice in the sense of spite, antipathy or hatred toward the party assailed, but the evil disposition, the malus animus which induced him wantonly, or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation, by the potent energy of the public press — written or printed slander being considered as more pernicious than that uttered by words only.”

These decisions are in strict keeping with the opinions expressed in more recent cases.

In Bigney vs. Van Benthuysen, 36 An. 38, this court said that newspaper editors “are held to the same responsibility with any other person, and malice on their part is conclusively inferred, if the publication is false. It is no defence that it has been copied from another newspaper without comment, or that the source of the information is stated at the time of the publication,” etc.

The court, after citing authorities, puts the proposition in this vigorous style, viz.:

“If an editor or publisher chooses to become the retailer of private scandal, without taking the trouble to inquire into the truth of what he publishes, the law, which is as studious to protect character as the property of a man will hold him to responsibility.
“The rule is not only just and wise in itself, but if strictly and inflexibly adhered to and applied by the courts and juries will greatly tend to the promotion of truth, good morals and common decency on the part of the press, by inculcating caution and inquiry into the truth of charges against private character before they are published and circulated throughout the community.”

Very much the same language is employed in Staub vs. Van Benthuysen, 36 An. 467.

Having been at the pains to closely scrutinize all the authorities and text writers, both ancient and modern, we find them consistent and uniform to the effect that the publication of statements selected from other journals that are injurious to the reputation or character of private individuals or public officials; or editorial articles favorably commenting thereon, if false in fact are libelous and defamatory, and are presumed to be malicious, and, tberéfore, actionable. The authorities, English as well as American, have generally held the publisher and editor of a newspaper to the -same rigid responsibility with any other person who makes injurious •communications. Malice on his part is conclusively inferred, if the •communications are false, in fact. It is no defence that they have been copied with or without comment, from another paper; or that the source of information is stated at the time, and the information is believed to be true.

The freedom of speech and liberty of the press were designed to secure constitutional immunity for the expression of opinion; but that does not mean unrestrained license, nor does it confer the right upon the editor of a newspaper to print whatever he may choose, no matter how false, malicious or injurious it may he, without full responsibility for the damage it may cause.

The modern rule with regard to the conditional privilege which newspaper publications enjoy is that when the publication is made in good faith, in the ordinary course of the publisher’s business, with good motives and for justifiable ends and without any intention to work injury to the reputation or character of the subject of it, the party injured will be restricted in his recovery to actual damages.

But every publisher is therefore liable not only for the estimated •damages to credit and reputation and such special damages as may appear, but also such damages on account of injured feeling as must unavoidably be inferred from such libel, published in a newspaper of large circulation and position of influence.

As the law looks to the animus of the publisher in permitting his columns to be employed for the dissemination of calumny, circumstances may be shown in mitigation of damages.

It was upon this ground that our learned brother of the lower court placed his rulings and must have rested his judgment, and the circumstances pointed to as justifying the judgment were that the administration of the government of the city of New Orleans had become so notoriously corrupt that suspicion in the public mind' rested alike upon all those in any manner connected with it and urgently demanded investigation and reform. That the defendant, as a faithful and fearless public journalist, felt in duty bound to-direct public attention to this serious condition of public affairs, and consequently when Orlopp, an important city contractor, made the aforesaid disclosure to other city papers, he deemed it the discharge-of a public duty to make upon them the editorial comment that i& complained of. With all due consideration given to this commendable purpose, we can not hold that the publication entitled “The Den of Thieves” can be considered as' protected by the conditional privilege of the press.

The law is studious to protect the character as it is to protect the-property of a man. This rule is not only just and wise, but if strictly adhered to, and inflexibly maintained and applied by the courts, it-will greatly tend to the promotion of truth, good morals and good citizenship, by encouraging caution, and inquiry into the truthfulness of charges before the damaging publication is made and circulated throughout the community.

In this case no claim is made to the effect that the statements made in the defendants’ editorial were true; but that under the circumstances, he believed them to be true. But he did not personally know the facts related to be true, and instituted no inquiry for the purpose of ascertaining their truth or falsity. The irresistible inference is that the statement was slanderous and libelous and within, the meaning of the law, malicious and, as such, actionable. But we think the defendant is only bound for actual damages, and that they include wounded feelings and a sense of injury and wrong suffered by the plaintiff. We think the judgment appealed from correct and it is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,193.
    State ex rel. James Wilkinson vs. Robert Hengel, Judge of the Twenty-second Judicial District.
    When a District Judge is a party to a contested election suit, and his recusation is suggested on the ground of personal interest, it is his duty to enter in said cause an order, in open court at term time, recusing himself, and for the trial thereof, appoint some judge of an adjoining district to go into his court and try and determine the cause.
    In case said recused case has not been tried within nine months from the date of the judge’s recusation, it shall then be the duty of the judge to order the transfer of the case into the court of an adjoining district for trial.
    There is no law in force which provides for the order of recusation to be entered in chambers, and mandamus will not go to respondent coercing him to do so.
    ^^N APPLICATION for Writs of Mandamus and Prohibition.

      James Wilkinson, in propria persona, Relator.

      E. H. MoOaleb and John Dymond, Jr., Respondent.
    Submitted on briefs June 6, 1896.
    Opinion handed down June 15, 1895.
   Application eor Writs oe Mandamus and Prohibition.

The opinion of the court was delivered by

Watkins, J.

The representations of the relator are that on the 12th of May, 1896, he filed a suit against the respondent in said judicial district and parish of Plaquemines, entitled James Wilkinson vs. Robert Hingle, .bearing the docket number 213 — the original record, and all the proceedings in which are annexed and made part of the proceedings herein for reference — “ contesting his title or right to the office of district judge.”

That there being no term of court for said parish within the five weeks ensuing after the service of his petition in said suit, the then presiding judge of said court granted an order directing a special jury to be summoned for the trial of said cause; and further ordered that said cause be fixed for trial before said jury on the third Monday in June, 1896.

That soon thereafter the respondent was commissioned as judge of said court, and he (relator) called upon him, and formally petitioned him to recuse himself in said cause, and appoint some judge of an adjoining district to try the same.

That the respondent should have recused himself without delay, yet he has, on the contrary, “ failed and refused to recuse himself, stating that he can issue no order, or do anything in this cause save during a session or term of court.”

Thereupon relator represents “ that such failure and x’efusal on the part of the respondent is illegal, and a denial of justice on his part;” and “ that unless the said recusation is had and a judge appointed to try said cause before the said day is appointed for the trial thereof, that the special jury (summoned) to try the same will have to adjou n and be resummoned, or finally discharged and a new jury selected.”

That he is entitled to a summary trial, and to have said application for the recusation of the judge acted upon immediately and in chambers; and to have the respondent enter an order making a summary and immediate transfer of said cause “to an adjoining and impartial forum ” for immediate trial and decision.

Relator alleges that subsequent to the formal tender of his plea of recusation the respondent is without right or authority to grant any order or take any action in the aforesaid cause, save and except to recuse himself and appoint another judge to try the same.

It is on the foregoing averments that the relator prays for a writ of mandamus to compel the respondent to enter an order in chambers and instanter recuse himself, and for a writ of prohibidioix preventing .him from granting any other order, or taking any further action in said cause.

The substance of relator’s plea of recusation in the aforesaid suit is, that respondent has a paramount interest in the trial and decision of said cause, and that same is sufficient “to warp his judgment and prejudice his mind in deciding same.” Thereupon he represents it to be. the duty of respondent “to forthwith recuse himself in this cause and appoint the senior judge of the Civil District Court for the parish of Orleans to try said cause in his place and stead,” etc.

As soon as said plea was handed to the respondent in chambers during the vacation of his court, he made the following counter-statement, substantially, in reply, to-wit:

That considering the provisions of Act 40 of 1880 he would have the right to select the judge to whom the plea of recusation should be referred for trial; and further considering that the provisions of Act 24 of 1894 have materially changed the procedure in contested election cases to one of ordinary form, his conclusion was that there is no law authorizing him to grant an order in chambers recusing himself, but that same can alone be made in open court. Therefore he declined to enter the order in chambers, and deferred action until such time as his court should be in session for the transaction of business.

The relator’s plea of recusation and his answer thereto are annexed to and made parts of his return; and therein are set out with some elaboration the same grounds for the denial of relief in the premises to the relator.

Considering the allegations of the petition and the respondent’s return, the sole question for decision appears to be, whether the law makes it the plain ministerial duty of a judge having a personal interest in a suit pending in his court to at once, and in chambers, enter an order recusing himself upon his recusable interest being suggested by one of the parties thereto; and the result must be that if we do not find that such duty is plainly imposed by law the relief prayed for by the relator must be refused.

Relator relies mainly upon the provisions of Act 129 of the extra session of 1877 as controlling the method of transferring contested election cases, in case the judge of the court wherein same are pending shall be recused. His counsel states that “ by the provisions of the above law the plea to the recusation could be filed at the time of filing the cause, or at any time previous to its assignment, and was to be passed upon and the case sent with the record to the judge of the adjoining district * * * Under the plain letter of this law (the act of 1877) the plea was to be filed and acted upon.immediately.” Brief, p. 2.

On the contrary, counsel for respondent contends that under the provisions of Act 72 of 1884, he was entitled to a delay of thirty days within which to pass upon any matter submitted to his court, and consequently relator’s application was premature.

His contention on the merits is, that there is no law authorizing the judge to grant an order of recusation in chambers — that is, out of term time. That not only is there no law authorizing, but none requiring that such an order be granted otherwise than in open court, at term time; and that in the absence of any such requirement, the respondent can exercise his discretion.

That the former law providing for the summary trial of contested election cases was repealed by Act 24 of 1894, which provides that cases of contested elections for State, parish, district and municipal offices shall be filed and tried as ordinary suits, except that they shall enjoy a preference of trial over other ordinary suits.

And based on that statutory change, the further contention of respondent’s counsel is, that such cases shall be tried at regular terms of court, by juries regularly selected for attendance upon such terms of court — in case jury trials shall be applied for — and consequently there is no occasion for that celerity of proceeding which is suggested in the petition of relator with respect to a chamber’s order of recusation.

They insist that a district judge is a State officer within the meaning of the law in respect to contested elections, citing Wilson vs. Wiltz, 32 An. 691; State ex rel. Attorney General vs. Lamantia, 33 An. 449, and Sheboygan County vs. Parker, 3 Wallace, 93.

Finally, counsel for the respondent insists that Act 40 of 1880 is the law in force with regard to the recusation of judges elected under the Constitution of 1879; and they specially invoke the interpretation which this court gave to that statute in State ex rel. Jones vs. Judge, 41 An. 319.

They also make the point that mandamus is not a writ of right and will not go in any case in which adequate relief can be obtained by appeal, citing State ex rel. Helphen vs. Judge, 38 An. 97; State ex rel. Railroad Company vs. Judge, 36 An. 394.

Per contra relator’s counsel insists that it was equally the duty of the respondent, under the law of 1877 or of 1880, to have made the order of recusation in chambers.

We may preface our examination and conclusion with the statement that, in our opinion the relator’s case must stand upon the law in respect to the time and manner in which an order of recusation must be made by a judge on account of his personal interest in the suit which is depending in his court; and that the equitable consideration suggested by relator can not aid or assist in the least, in the interpretation of matters of our supervisory power.

We may further premise by saying, that in our opinion Act 72 of 1884, refers in terms to “ causes taken under advisemenc by district judges,” exclusively, and not to orders of recusation and the like.

An examination of Act 129 of 1877, extra session, discloses that in a suit to contest an election for a judicial office, wherein the presiding judge of the district has a personal interest, “ on motion of the defendant or of the plaintiff, either may, at any time before the assignment of the case, have the same transferred to and tried by the judge of the District Court whose residence is nearest to the residence of the defendant.” Sec. 1.

It further provides that “ the plaintiff or the defendant may, at the time the suit is instituted or at any time after, apply to the judge of said residence for a rule issued to the judge who can not try the case because recused on his own motion,” or otherwise, to show cause within three days from the date of service of said rule why he should not try the case, and that, in applying for said rule, the said plaintiff shall swear that the defendant is interested,” etc. Sec. 3.

It further provides “ that upon the said application being made, it shall be the duty of the judge applied to to make the said rule absolute if cause of recusation exists and if his residence is nearest to the residence of the defendant, as above mentioned,” etc. Sec. 4.

The substance of the foregoing provisions is that when a district judge is personally interested in a suit contesting his election to such judicial office, either party may at any time before the assignment of the case for trial have the cause assigned to and tried by the judge of an adjoining district, and that at the time the suit is filed, or at any time thereafter, apply to the judge of the adjoining district to whom it is assignable, for a rule upon the judge who has an interest to show cause within three days why the former should not try the case.

That upon said application being made, and sworn to, it shall be the duty of the judge applied to — that is, the judge of the adjoining district — to make said rule absolute, if cause of recusation exists.

From the foregoing analysis of that act, it seems clear, that the purpose of the Legislature was to deprive the judge who was personally interested in a contested election suit, of all power over the question of his recusation vel non, and to confer it upon the judge of the adjoining district, exclusively.

This is not the interpretation which the relator has placed upon that statute. It is just the opposite view of it that he has taken, in asking for a writ of mandamus to coerce the respondent to perform a duty, the power to perform which was expressly taken away from him thereby.

Referring to Act 40 of 1880, we find it is general law upon the subject of the “ causes of recusation of the district judges and the trial of recused causes; ” and it specially provides “ that in cases in which a judge of the District Court shall be recused for the cause of interest, he shall, for the trial thereof, appoint some district judge of an adjoining district, * * * and the order, of the court making the appointment shall be entered on the minutes thereof,” etc. Sec. 3, Act 40 of 1880.

And it is made the duty of the judge thus appoinied “ to go to the court at which the recused case ‘is pending,’ and there try and determine the case.” Ibid., Sec. 4.

It further provides, that if said recused case “ has not been tried in nine months from the date of the recusation, it shall be the duty of the district judge to order the transfer of such ease to the District Court of the nearest parish of an adjoining district, the judge of which is competent to try the cause,” etc. Ibid., Sec. 5.

It further provides, that “all laws or parts of laws in conflict with this act be and the same are hereby repealed.” Ibid., Sec. 8.

It is quite apparent that this law covers the same ground exactly as that which is covered by the Act of 1877. In other words, the mode to be pursued at the inception of a contested election suit, in which a District Judge has a personal interest, is for the recusedjudge to appoint the judge of an adjoining district to try said recused case, whose duty it shall be to go to the court in which the recused case is pending and try the same. It is equally apparent, that the respondent would have violated the provisions of this act, if he had attemped to transfer this cause to a judge of some adjoining district under the Act of 1877, as the relator proposed to have him do, and before the lapse of the period of nine months. Indeed, that act seems to us illogical, in that it proposes to summarily divest a District Judge of all power over a cause pending in his court, and to assign the same to the judge of an adjoining district for the purpose of determining the recusable interest of the judge, upon the simple motion of a party to the suit, and who is directly interested in the result thereof.

Certain it is, that, under the Act of 1880, the respondent had neither power or authority to transfer the cause of Wilkinson vs. Hingle “to an adjoining and impartial forum” for immediate trial and decision, .as relator claims he should have done; and has not made himself amenable to mandamus because he has declined so to do.

The Act of 1880 was examined and construed in State ex rel. Gates vs. Judge, 38 An. 452.

It has been settled by judicial construction, that the act of 1877 was repealed and superseded by the act of 1880.

State ex rel. Jones vs. Judge, 41 An. 319.

From a careful review of all the legislative acts and authorities bearing on the question, it appears that the plea of recusation must be formally filed in the contested election suit, and the judge whose recusation is thus tendered should enter his order recusing himself, and call the judge of an adjoining district to come into his court and try the recused case — if the cause of recusation is couceded, or apparent; but same is alone triable in open court. State ex rel. Segura vs. Judge, 37 An. 253; Hunter vs. Blackman, Man. Unr. Cases, 427; State ex rel. Trimble vs. Judge, 38 An. 247.

The judge thus selected must leave his own court, and go into the court of the recused judge, and try and decide the case conformably to the provisions of Act 24 of 1894, as a district judge is a district officer in the sense of that statute; and they declare that such suits as come within the contemplation of that act shall be tried “in all respects as ordinary suits.” And the provisions of that act are general and sweeping and embrace all officers therein enumerated, whether State, parish, district, or municipal; and in this respect they are an enlargement of those of Act 24 of 1877.

Our conclusion is that relator has not stated a case entitling him to relief, and hence the preliminary restraining order is set aside, and the relief prayed for denied at his cost.


author: Breaux, J.

text:
    Nos. 11,950 and 12,163.
    Succession of Thomas Barry.
    The marriage decreed null produces civil effects when contracted in good faith.
    The wife, who in good faith, marries a divorced man believing that the divorce was legally obtained; if the divorce be subsequently declared a nullity is protected by those laws enacted for the protection of the weak and innocent.

      The effects which the husband and wife, at the time of the dissolution of the marriage, own are presumed common effects or gains, unless it be satisfactorily proved which of such effects they brought in marriage.
    The same rule applies to. a putative marriage in so far as the spouse, in good faith, is concerned.
    The costs of settlement of community interests are charged to each in proportion to the interest of the respective parties.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Louque & Pomes for Mrs. T. Barry, Administratrix and Heir, Appellant in 11,950, Appellee in 12,163.

      Dart & Kernan for Christine Folz et al., Opponents, Defendant Appellees in 11,950, Appellants in 12,163.
    Argued and submitted May 8, 1896.
    Opinion handed down May 18, 1896.
    Rehearing refused June 30, 1896.
   The opinion of the court was delivered by

Breaux, J.

The public administrator applied for the administration of the succession of the late Thomas Barry.

Mrs. Mary Barry opposed the application, alleging that she was the widow of Thomas Barry.

This court held, in the former appeal, that there was evidence of a suit for divorce and of a judgment rendered, dissolving the marriage, but that it was not sufficiently shown that any decree had ever been signed. Succession of Thomas Barry, 47 An. 838, 841.

The administration having been entrusted to Mrs. Mary Barry, she filed her final account.

The heirs of Margaret Barry, averring that she was the wife of Thomas Barry, claim by inheritance her interest in the community which, they contend, existed between her and Thomas Barry.

The District Court maintained their opposition and decreed that they were entitled to a portion of the community.

From the judgment of the District Court the appellant prosecutes this appeal in her individual capacity and as administratrix.

The appellees have accepted the judgment as correct and have made no application to amend the judgment. In so far as relates to the appellees, no issue is presented by them in regard to the amount allowed as their share of the community.

The appellant urges that Margaret Barry never was the wife of Thomas Barry, as the latter Thomas Barry had not obtained a divorce prior to the marriage ceremony, whereby Margaret Barry claimed to have been united in marriage with him.

In the second place it is contended that no community pro pert 3' was acquired by them.

It is not denied that Thomas Barry was married to the appellant in 1874 and that she separated from her husbiind. It is also admitted that proceedings for a divorce were instituted by Thomas Barry against his first wife. The point of difference between the appellant and appellees is whether it was prosecuted or not to a final judgment. While not conclusive there is proof before us that a judgment of divorce was rendered. But we are not concerned with the finality or validity of that decree, as the question is the good faith vel non of the second wife, from whom the appellees inherit.

The second wife was married to Thomas Barry on the 12th of May, 1879. The marriage was duly solemnized; she died without issue in January, 1886.

The evidence discloses that she was industrious and economical. She was a wage earner, and her small earnings became part of the common property.

The first wife, who is the appellant here, lived in this city under the name of Mary Doyle, a name by which she was known after her separation from her husband. She never, at any time, disclosed to any one, as far as the record shows, that she was the wife of Thomas Barry. She, by her silence, lent countenance to statements that he was a divorced man. After his death, a few years after the death of his second wife, the widow Mary Barry, who claims that she is the sole heir of the community, did not attend the funeral, and was indifferent, save as to the property, to recover which, she invoked ties of matrimony long ignored, ties which had been advertised as dissolved as required by law in matter of divorce in the-official journal. A judgment of divorce was advertised as required by law in matter of divorce.

The judgment is lost, or possibly the advertisement was unauthorized and unsupported by judgment. Be this as it may, the second wife and her family, prior to her marriage, had reason to believe that Thomas Barry was a divorced man; a status supported by common report. It is not the case of one who becomes the hasty and thoughtless victim of the merest impostor. He was known, and had, during many years in this city by his industry, accumulated a few thousand dollars.

The evidence at hand, after many years since the divorce proceedings, may not have been sufficient to prove conclusively that the divorce had been decreed, and yet justify the belief, in good faith, that it had been granted.

There was error on the part of the wife; it was not, however, under the circumstances inexcusable. The record discloses that the wife was ignorant of any pre-existing hindrance to her marriage. Her memory, in all justice, should be acquitted from the obloquy of concubinage, for she, we believe, became Thomas Barry’s wife in good faith. She had no cause, in reason, to suspect that he was not the divorced man he represented himself as being. He also seems to have acted in good faith. May it not be that the copy of the judgment was lost or mislaid, and that he did not commit the offence charged. Her good faith, at any rate, is sustained, as we appreciate the evidence.

L’époux qui ignore que son conjoint est engagé dans les liens d’un manage est de bonne foi; cela a été jugé, et, en vérité, il ne faut pas d’arret pour démontrer ce qui est clair comme la lumiére du jour.” Laurent, Vol. 2, p. 636.

As the wife had reason to believe that the tie uniting them was legitimate, the marriage produced civil effects. The marriage contracted on the faith of a divorce, although it subsequently is decreed that the divorce was null, will have civil effect in favor of the spouse who was in good faith.

This being our conclusion in regard to the good faith of the second wife, it follows that the community must be settled as if there had been a community in fact under a marriage in regard to the legality of which there was no question.

But it is contended by the appellant, Mary Barry, that the record does not disclose that there was a profit enuring to the community .at the death of Margaret B .rry, the second wife, in 1886.

The proof upon this point is an act of sale signed by Thomas Barry. A declaration in the act shows thát the property was bought by him during the existence of the community with the second wife. The declaration, unquestioned as to its correctness, proved the date it was bought.

The purchase by him and the sale were made during the existence of the community.

The objection more particularly pressed upon our attention is: If Barry came into possession of the price of the property in 1884, non constat that the money was still in his possession when Margaret Barry died in 1886.

We think a statement of the fact bearing upon this point is a satisfactory answer to the objection.

The credit portion of the sale of the community property was collected by the survivor in community after the death of Che second Mrs.. Barry. It was an asset of the community collected after its dissolution.

With reference to the cash paid at the time that the deed was signed, about nine months prior to the death of Mrs. Margaret Barry:

We do not find that the cash portion of that sale is included in the amount allowed to the heirs of Mrs. Margaret Barry, and therefore the objection is not sustained by the fact.

As to the remainder collected after her death, it was beyond all question community, and as such properly distributed by'the judgment of the District Court.

The article of the Code is plain. Its effects are divided in the equal portions at the dissolution of the marriage, and all effects are presumed common effects, in making this division, unless it be satisfactorily proved which of such effects they brought in marriage. C. C. 2405.

The promissory notes in the possession of the husband at the dissolution of che marriage must be accounted for in the settlement of the community. It is a fair inference that they have been collected by him.

Both appellant and appellee have directed our attention to a clerical error in the judgment; the names of the mother of Margaret Barry, Mrs. Christine Foltz, and the name of a brother, John G. Foltz, were omitted. The amendment of the judgment will, therefore, be made by inserting the names of all the opponents in the judgment.

By consent of counsel, Mrs. Mary Barry’s appeal and the devolutive appeal of the opponents are heard at the same time, and the question of costs, in so far as relates to opponents, is decided.

The appellees ask that the judgmeat be amended by striking out the clause of the judgment decreeing a contribution to the costs and expenses in proportion to the sum allowed to the opponents.

The settlement was for the benefit of both communities, and to enable each to receive its portion; that settlement enters into the settlement of the succession, and the costs were properly taxed by the judge of'the District Court.

It has been said in a case similar to this case that the rule the most reasonable to follow is to consider the property acquired during each marriage as belonging to the community of each marriage (as the result of a partnership such as partnership composed of two strangers) and to divide the acquets and gains, not according to the rules applying to the conjugal community, but according to the rules whereby generally partnerships are governed.

In the case of the settlement of two partnerships the costs would be taxed as thev are here taxed.

We think it just to apply the rule which applies to the settlement of partnerships.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed with the following amendments, making Mrs. Christine Foltz, mother, and John G. Foltz, her brother, parties to the appeal, and to the judgment decreeing that as heirs of Margaret Barry they are entitled to inherit the sum stated in the judgment.

As amended, the judgment is affirmed at appellees’ costs in each case, i. e. 11,950 and 12,163.


text:
    No. 11,945.
    A. Lehman & Co. vs. S. A. Knapp et al.
    The plaintiffs are creditors of the defendants for goods sold them by the latter.

      Burden of Proof — As to whether the store was exclusively kept to supply the employees and was not to sell to all comers, the onus was shifted .by evidence strong enough to establish a prima facie case against the defendants. After the burden had changed to the defendants they did not sustain their defence by proof of particular facts which were more particularly within their knowledge.

      Act Relative to Corporations prior to 1888. — A corporation may, as to its legal existence, be entirely legal and protect its shareholders fully to construct and operate a railroad and to engage in planting, under laws preceding the act of 1888; and yet the shareholders are responsible personally/or carrying on a commercial partnership in addition.

      Corporation Limited. — Where a corporation is created under a general statute which requires that it shall be incorporated as a corporation limited, the limitation must so appear in the act of incorporation, otherwise the private interests of those who signed the act, and were its directors, will become responsible under the terms of the statute.

      Estoppel. — Merchants who sell goods for merchandising to a corporation do not thereby preclude themselves from holding the shareholders personally bound after ascertaining that, as to their mercantile transactions, they are responsible as commercial partners.
    A motion to vacate the appointment of a receiver was not an estoppel of record.

      Not a New Question. — There are general statutes in a number of States, also in England, giving authority to create joint stock companies “limited,” and importance, in these jurisdictions, is given to the use of the word limited, as in Louisiana.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Fournet, J.

      Arsene P. Pujo for Plaintiffs, Appellees.
    D. B. Gorham and T. T. Taylor for Defendants, Appellants.
    Argued and submitted February 10, 1896.
    Opinion handed down February 24, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Breaux, J.

This is a suit by appellee against appellants as co-partners to recover for goods sold and delivered.

Defendants plead the general issue, and in support of their existence, as a corporation, they interpose the further plea of estoppel.

The defendant, with another shareholder, not made a party, procured a charter of incorporation for the Teche Railroad and Sugar Company to build and operate a line of railway from “Huron Plantation” in St. Martin parish to stated points; also to own or lease plantations, to grow cotton, rice and sugar, to deal in securities and merchandise, to operate sugar houses and refineries.

One of the defendants, charter member, was president, another vice president, another secretary, and the last, the treasurer, was not sued.

In the resolutions of the board of directors and in all the dealings and orders of the company the word limited was used. The accounts were made out and rendered to the defendants in the name of the company, “limited.” The plaintiffs were aware that Mr. S. A. Knapp was the general manager and president, and that the store to which the goods were sold was kept on the Huron plantation. The two clerks, under the directions of the president, were to sell (the manager and president testified) only to the employees. These clerks have not testified.

Three (3) witnesses testify that it was a public store for all comers.

About one year after the company had been in operation, it became embarrassed because of failure to negotiate an expected loan in England on mortgage bonds.

On the motion of a foreign creditor it was placed in the hands of a receiver, under appointment of the United States Circuit Court for the Western District of Louisiana. The plaintiffs, with other creditors, filed a motion in that court to vacate the receivership, alleging that there was no ground for the appointment; further, that the corporation, though incorporated as the Teche Railroad and Sugar Company, did business in the name of the Teche Railroad and Sugar Company, Limited. The motion, without action by the court, is of record.

AS TO MERCHANDISING.

The corporate name was, as alleged, the Teche Railroad and Sugar Company. It is a disputed point whether the store was for the use of the plantation, exclusively as a supply store, or a general country store in which goods were sold to the general public.

We will take up and decide the only question of fact in the case before taking up and deciding points involving questions of law.

Goods for the store in question were bought from the plaintiffs and sold at defendants’ counters. That they were sold and delivered by the plaintiffs is not disputed, and it is admitted that they were sold by the defendants as just stated. The defendants’ position is that the corporation, without the word “limited,” could lawfully have been created for the real purposes and business of its organization, viz.: building and operating a railroad, a sugar refinery, and could own a store as incidental for the purpose of supplying the employees engaged by the company. The position, as stated, may perhaps be correct, but we do not think it entirely covers the issue of fact. As we appreciate the evidence the sales were not limited to the employees.

One of the witnesses, a commercial traveler, testified that the merchandise sold by him to defendant consisted of dry goods, notions and other articles, and he saw dry goods sold to ladies.

Another witness, who was at times employed by the defendants, testified that he bought for cash for his own use at this store.

We do not infer from his testimony that he was always employed on the plantation when he made his purchases. He says that the defendants kept an assortment of groceries, hardware, tinware and dry goods; that they were sold to the public, as well as to the employees.

This testimony was, in every particular as to its being a public store, corroborated by two other witnesses, who, themselves, bought from the store when not employed by the defendants.

Defendants’ clerks were not called as witnesses by their employers. One of the witnesses for the defendant, in general terms, without any direct reference to the details of the business, contradicts the evidence for plantiffs, as to its being a store open to all comers.

The defendants aver that the store was a commissary department of the enterprise.

The plaintiff denies.

The burden of proof is with the one who seeks to support his case by a particular fact; when that fact lies more particularly within his knowledge. Best on Evidence, Sec. 275.

The rule is not without the exception, as is shown by the following:

“ I have always understood it to be a general rule that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative is to prove it, and not he who avers the negative.”

But in Elkin vs. Sanson, 13 M. and W. 655-662, the judge on this dictum said: “I doubt, as a general rule, whether these expressions are too strong. They are right as to the weight of the evidence, but there should be some evidence to start it in order to cast the onus on the other side.” Ib., Sec. 300.

The evidence was positive that it was a store at which goods were sold to the public, and sufficient at least to shift the burden of proof, and render it necessary that the defendants should, through their clerks and other employees, prove needful facts in support of their contention, particularly within their knowledge. Best on Evidence, Sec. 275. Act No. 102 of 1880.

This brings us to a consideration of the general statute authorizing the formation of corporations, for the constructing of railroads, and for opening and maintaining other enterprises. That statute does not apply to, merchandising. Merchandising is the only question before us. We have naught to do with the railroad and agricultural enterprises, properly organized we will assume under the terms of the statute. The mercantile affairs are all that concern us. They could not be conducted by a corporation organized under the statute in question. It was prohibited.

In view of the (in effect) clearly expressed prohibition the defendants could not under that statute claim corporate existence as to the merchandising.

act no. 36 ok 1888.

We are led from the argument to believe that the defendants claim to have acted, in so far as relates to merchandising, under the more recent general statute of 1888.

The act authorizes the formation of corporations for certain purposes and requires a name to be selected.

In the section following, the word “limited” is made part of the name.

Evidently that word was not added by the defendants owing to the want of ordinary care or prudence in organizing. The omission of the word, the law reads, shall render also every person participants in such omission liable for any indebtedness, damage or liability therefrom. The Legislature has power to impose, under the limitations, any condition upon the enjoyment of the franchise, which the General Assembly deemed necessary or to the public good.

In all the laws relating to the subject the General Assembly requires a name, and the most recent statute requires that the word “Limited” shall be the last word. They also require that the act of incorporation shall be recorded. In the case here, unless the last word is used as authorized by the act of incorporation, it would serve no purpose to use it in business.

The failure to insert the word intended, as a note of warning, is a technical error, which, under the terms of the statute, affects the interest of the directors.

The statute has made it a condition precedent to corporate existence. It is not a law peculiar to Louisiana. Joint stock corporations are partnerships except in form. The rights and liabilities of partners under the English statutes, substantially similar, were discussed by Justice Lindley (“Treatise on the Law of Partnership”) in this connection, and he says that although intending to form a limited partnership, the parties may unknowingly so act as to make themselves liable to third parties as general partners.

The State of New York has a similar statute, and the use of the word “ limited ” is required; the penalty is very much the same as it is here.

The last statute, Act No. 36 of 1888, was preceded by legislation prohibiting corporations from merchandising.

The laws in regard to partnership, hedged in partnership ventures with restrictions. Thus a universal partnership could not be created without writing signed by the parties and registered. C. C. 2834.

The partnership in commendam required for its existence a written act recorded, otherwise the parties in eommendam are personally responsible. C. C. 2845.

Under the influence of the laws, the legislator was conservative, and incorporated in the last statute, 1888, the conditions precedent to corporated existence and limitations found in the general laws upon the subject mother States, as well as in England.

The appellants have sworn that they did not know that the word had been omitted from the act of incorporation.

Mr. Bigelow, p. 349 of his work on Estoppel, says: “ Directors of corporations being bound to know the proceedings of the body, can not escape an estoppel by the allegation of ignorance.”

The defendants urge that the State alone can question corporate existence. That may be in cases in which it is sought to have a charter forfeited, but here the suit is to enforce the personal liability of officers of a corporation for corporate debts which they have incurred, because of their violation of the general statute. It may be maintained by creditors without direct proceeding taken at the instance and in the name of the State. The State has no interest in the indebtedness, and no reason arises, in consequence, requiring her intervention in the matter.

ESTOPPEL.

Lastly, it is argued that the plaintiffs are estopped. Estoppels by ■conduct and by record are pleaded. In our opinion neither applies. It is not shown that with knowledge of the irregularities, the plaintiffs agreed to sell goods to the corporation, or with that knowledge, they did some act showing acquiescence. They would not be benefited by these sales — on the contrary, they would be losers if they were estopped. The possibility of recovering their own (an amount justly due), is not the benefit, as we understand, to which reference is made in a number of authorities in holding that neither party will be heard to allege the invalidity of a corporation while retaining its fruits. In the courts of this State the decisions held that shareholders and mortgage debtors can not defend themselves against a claim on such contracts in a suit by the corporation by alleging irregularity in the organization. That by making a contract, for instance as a mortgage to secure the payment of a promissory note, the mortgagor precludes himself from questioning the fact of the proper organization of the corporation. It was decided that the defendant was estopped when the defence was in its nature unconscionable.

The plea of estoppel has never been applied to the creditor of a corporation seeking the payment of his claim. In one case the debtor has received a benefit that estops him; in the other the creditor has sued to recover an amount due by those who have failed to avail themselves of the terms of the statute.

The motion to vacate the receivership made in the United States Court contains no allegation which cures the absolute informality in question.

Substantially the informality was alleged, and although not followed by averments setting forth the indebtedness arising because of the informality, plaintiffs are not concluded.

The motion did not,have the effect of releasing any of the debt-oi’s. There is no ground to presume a release, either because of the action as a whole, or because of any of the allegations contained in the motion.

EQUITY.

If there has been any hesitation on our part in reaching a conclusion, it was after giving consideration to thoughts quite suggestive and prettily expressed by counsel in referring to the spirit of equity of modern jurisprudence, which they invoke as having sought to have justice, pure and simple, administered between man and man; which has sought to rise above matter of form, to keep abreast the advance of other sciences, and to make the law loved rather than feared. It was forcibly said at the bar that the law has bidden adieu to the era of snares and traps into which the innocent and unwary could be led to their own undoing. Everywhere equity is predominant. These are appealing thoughts. But if the law has determined a matter with all its circumstances, equity can not inter-meddle.

We have seen that the statute is, in terms, mandatory and provides the penalty in case of non-compliance. If we were to leave the ¡plain, letter and the spirit of the statute, as we understand it, and be governed entirely by considerations of equity, the case would not be entirely with the defendants.

In organizing, or rather attempting to organize, they must have created the belief that under their management obligations would be discharged.

The evidence discloses that in good faith the defendants were disappointed, and that the failure to meet obligations was owing to unforeseen causes. None the less, those who seek to recover their own from the disappointed and unfortunate are not always, and under all circumstances, without some equitable rights.

Returning to the doctrine of estoppel, we conclude by quoting from Eaton vs. Wilker, 48 N. W. Rep.

“ Hence if an organization is completed where there is no law, or an unconstitutional law, authorizing an organization as a corporation, the doctrine of estoppel does not apply,” and by adding that these considerations must apply with greater force to corporations organized in disregard of the plain letter of the statute, and of the penalty imposed for its violation.

The judgment appealed from is affirmed.


text:
    No. 11,963.
    Chambers Roy & Co., Limited, vs. S. A. Knapp et al.
    The debtors’ note given for an open account does not necessarily novate the debt.
    A PPEAL from the Twelfth Judicial District Court for the Parish, of Calcasieu. Fournet, J.

      Arséne P. Pujo for Plaintiff, Appellee.

      D. B. Gorham, T. T. Taylor and Saunders & Miller for Defendants,. Appellants.
    Argued and submitted February 10, 1896.
    Opinion handed down February 24, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Breaux, J.

The facts are similar to those in the case of A. Lehman & Co. vs. S. A. Knapp et als., ante, p. 1148, save that the plaintiffs held notes representing defendants’ indebtedness to them. The acceptance of a note is not deemed a payment or novation unless the parties so agree.

It follows that if a corporation becomes indebted at. a time when those who organized it are in default in not properly indicating, as-the State requires, that it is a company limited, they are liable personally and are not discharged by the fact that their creditors accepted their note.

The judgment is therefore affirmed.