
    Byers v. The Meridian Printing Company et al.
    
      Publication of pleadings, etc. — Not privileged, when — Presumption as to malice — Act of April 16, 1900, 94 O. L., 29$, xmconstitutional.
    
    1. The publication of pleadings or papers which have been placed on the files of a court, when the court has not yet acted thereon, is not privileged, even though the publication is made in good faith and without malice. (The Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549, approved and followed.)
    2. The amendment and supplement to Section 5094, Revised Statutes of Ohio, passed April 16, 1900, 94 O. L., 295, changing the presumption and burden of proof as to malice, is unconstitutional and void.
    (No. 12425
    Decided June 30, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was plaintiff in the court of common pleas in which he filed his petition alleging that the defendants had published in a newspaper owned and controlled by them, viz., The Cleveland News, a libelous statement which was in substance that warrants for the arrest of the plaintiff on the charge of perjury together with warrants for other persons for other felonious crimes had been sworn out before a justice of the peace by one L. A. Damschroeder. It was further stated in said article that Damschroeder asserts that the plaintiff committed perjury in swearing to the affidavit by which suit was brought, etc. The plaintiff’s petition further alleged that he is an attorney qualified to practice in the courts and that he is the person referred to in this article and that so far as it refers to the plaintiff the language complained of is viciously false and untrue and is calculated to injure the plaintiff in his reputation as a man, as a citizen, and in the practice of his profession and to bring him into public scandal, infamy and disgrace. He charges that he has been disgraced and humiliated and his business has been injured thereby, for all of which he claims damages.
    The defendants made a joint answer setting up three defenses. The first defense after admitting the formal allegations of the petition and the publication of the article complained of, denies all and singular the averments of fact in said amended petition contained saving and excepting the averments hereinbefore expressly admitted to be true. In their second defense the defendants set forth a certain affidavit made by one Lawrence A. Damschroeder charging the plaintiff with perjury and setting forth a warrant alleged to have been issued by the justice of the peace with whom said affidavit was filed. And they further say that they thereupon caused the publication complained of to be made and that the same is a fair and accurate-report of the said proceedings had before the said justice of the peace. Further answering, the defendants say that they made said publication in good faith, relying on the said affidavit and warrant and said proceedings before the said justice of the peace, and they deny that in making said publication they were actuated by any malice whatsoever toward the plaintiff. For their third defense the defendants say that a reporter representing the defendant, The Meridian Printing Company, went to the office of the justice of the peace referred to in said publication and made in-’ quiry as to whether or not a warrant had in fact been issued for the arrest of the plaintiff. That the said justice informed the reporter that the warrant had been issued and that the reporter thereupon requested to see the files in said case and the same were exhibited to him and examined by him and he found in the file envelope an affidavit charging the plaintiff with perjury and otherwise making charges against him as set forth in. said publication. That the reporter also found in said file envelope a warrant for the arrest of the plaintiff duly signed by the justice of the peace, and that thereupon acting upon such examination and information he prepared the publication complained of which the defendants thereupon caused to be published. • Defendants further alleged that at the time of the publication they believed and had reasonable grounds to believe that the statements contained in said publication were true; that they made the same in good faith and believed it to be by reason of the aforesaid inquiries a fair and accurate report of the proceedings had before the said justice of the peace. They further say as a part of said third defense that thereafter the plaintiff demanded that the defendants make retraction of the matter contained in said publication so far as it related to him the said plaintiff and that in response to this demand for a retraction and acting on information from the plaintiff and statements made by him without further investigation and solely with desire to set right a possible wrong which they may have done the plaintiff they promptly published a full and complete retraction of the same in as public a manner and as conspicuous a place as that in which they had made the original publication. A copy of this retraction is given. And they deny further that in making the said publication they were actuated by any malice whatever toward the plaintiff.
    Demurrers to each one óf the separate defenses filed by the plaintiff were overruled by the common pleas court. The plaintiff not desiring to plead further final judgment was entered for the defendants. To this judgment the plaintiff filed his petition in error in the circuit court which affirmed the judgment of the court of common pleas and this proceeding in error is prosecuted to reverse the judgment of both the lower courts.
    
      Messrs. Friebolin & Byers and Mr. P. L. A. Leighley, for plaintiff in error.
    Under the doctrine that' “malice is the gist,” that is, an essential ingredient of the cause of action for defamation, it appears that the purpose and effect of this statute is to bar a recovery for injury to reputation, no matter what the damage sustained, where a retraction has been demanded, and the demand complied with, unless malice is proven, and then of all but the actual or special damage alleged in the petition. Publishing Co. v. Butler, 137 Fed. Rep., 727.
    Now, let us see whether our statute (5094) is in accord with the guaranties given by the fundamental law in the Fourteenth Amendment to the Federal Constitution. Its effect, it will be seen, is to impose upon the person injured the necessity of choosing whether he will demand a retraction and lose his right to reparation, unless he can prove actual malice, or of failing to give his traducer an opportunity to retract (incidentally so allowing him to mitigate his liability for damage), and of suffering under the odium of having made no attempt to have himself set right, in so far as might be, before the world at large. Odgers on Slander and Libel, 4, 6.
    It will scarcely be contended that the act of demanding a retraction is one which is malum in se, or in fact other than one of which good conscience will approve, yet our legislature has undertaken to impose a heavy penalty upon its performance — no less than the deprivation of a constitutionally guaranteed right. “There is a constitutional inhibition against imposing penalties where no law has been violated or duty neglected.” Railway Co. v. Lackey, 78 Ill., 55.
    Nor will it do to say that the retraction when made, is reparation, for if it is ever such, which may well be doubted, it clearly is not when special damage can be shown. Hanson v. Krehbiel, 64 L. R. A., 790.
    The legislature has undertaken to compel a choice between two perfectly lawful courses of action, with neither of which it has any possible reason to interfere on any grounds which can be suggested, or for which any support of authority, will be found.
    It is conceded that a constitutional right may be waived, as is said by the court in Publishing Co. v. Butler, supra, but we conceive that no case will be found where performance of any act provided for by legislation, has been held to constitute such a waiver, where no new right or benefit is conferred thereby. Moore v. Napier, 42 S. E. Rep., 997; Cooley’s Const. Lim. (7 ed.), 251; Cleveland v. Construction Co., 67 Ohio St., 197; State v. Hipp, 38 Ohio St., 199.
    In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. United States v. Dewitt, 9 Wall., 41; 1 Thayer’s Cases on Const. Law, 740.
    The principle question which we are discussing has been passed upon by the supreme courts of Michigan, Kansas, Minnesota and North Carolina. Park v. Press Co., 72 Mich., 560, 1 L. R. A., 599; McGee v. Baumgartner, 121 Mich., 287, 80 N. W. Rep., 21; Allen v. Press Co., 40 Minn., 117, 3 L. R. A., 532.
    The supreme court of North Carolina in Osborn v. Leach, 135 N. Car., 628, 66 L. R. A., 648, reviews all of the other decisions upon this question and takes its stand upon the same ground as that of Kansas, the statute of the former state being practically identical with that of the latter.
    A statute in derogation of the common law is to be strictly construed. Cooley’s Const. Lim. (7 ed.), 95.
    We have been unable to find authority which supports the view taken by the learned judges of the circuit bench.
    On the contrary, perusal of the cases seems to us to show that, as above indicated, malice is averred with rather more than necessary emphasis. 32 Cent. Dig., 2139; White v. Nicholls, 3 How., 266; Harris v. Zanone, 93 Cal., 59; Brandt v. Journal Assn., 81 App. Div., 186.
    There is another ground upon which the statute may be held to be of no effect without declaring it unconstitutional.
    The more modern writers, and many of the courts have recognized that the doctrine that “malice is the gist of actions for defamation is based upon a legal fiction merely, and that malice is not in fact an essential element.” Odgers on Libel and Slander, 319, 321; Flood on Libel and Slander, 35; 1 Cooley on Torts (3 eel.), 420; 18 Am. & Eng. Ency. Law (2 ed.), 1002; Hearne v. DeYoung, 132 Cal., 357; Covington v. Roberson, 111 La., 338; Prince v. Daily Eagle, 16 N. Y. Misc., 188.
    
      Messrs. Gage, Wilbur & Wachner, for defendants in error.
    We submit that the publication or statement of things done in open court, where some action has been taken by the court, in even an ex-parte judicial proceeding should be, and are in every jurisdiction other than Ohio, subject to the defense of qualified privilege if published or stated fairly and impartially and in good 'faith and without malice; and we submit the following authorities in support thereof: Curry v. Walter, 1 Esp., 456; King v. Wright, 8 Term. R., 293; Duncan v. Thwaites, 3 B. & C., 556; Lewis v. Levy, 96 Eng. C. L. R., 535; Wason v. Walter, 4 L. R., Q. B., 73; Usill v. Hales, 3 C. P. D., 319; Kimber v. 
      Press Assn., 1 Q. B. (1893), 65; Popham v. Pickburn, 7 Hurl. & N., 891; Ryalls v. Leader, L. R., 1 Ex., 298; Odgers on Libel and Slander (1905), 291; Ackerman v. Jones, 37 N. Y. Sup. Ct., 42; Salisbury v. Union & Adv. Co., 45 Hun, 120; McBee v. Fulton, 47 Md., 403; Metcalf v. Pub. Co., 20 R. I., 674; Publishing Co. v. Gamble, 115 Tenn., 663; Beiser v. Publishing Co., 113 Ky., 383; Newell on Defamation, Slander and Libel, 549.
    The weight of authority is in favor of extending the privilege to reports of arrests on information gained from papers on file, so long as such reports do not assume the guilt of the accused person and are not otherwise defamatory. Publishing Co. v. Smith, 149 Fed. Rep., 704; Billit v. Publishing Co., 107 La., 751; Usher v. Severance, 20 Me., 9; 25 Cyc., 408.
    The statute is constitutional. The validity of this act -has been sustained by the most satisfactory reasoning in Publishing Co. v. Butler, 137 Fed. Rep., 723.
    It is believed there is no other statute in force in the Union like the Ohio one in this particular, namely, in the respect that it leaves to the plaintiff the option whether or not to ask for a retraction, and incur the conseciuences of such retraction in the way of a limitation of his recovery. Several other states in the Union have, indeed, statutes on this subject of retraction, but in every case these statutes require the plaintiff, before commencing a libel suit, to give notice in some form or manner of the publication of which he intends to comnlain. Thereupon the defendant is permitted, on making retraction in the manner prescribed by such statutes, to limit or abridge the plaintiffs right of recovery.
    The statutes on this subject outside of Ohio have sometimes been sustained, even though they leave the plaintiff no option in the matter, on the ground that the retraction deprives him of punitive damages only, and that it is within the discretion of the legislature to permit or refuse punitive damages in any case, since the right to them is not guaranteed by constitution. Comer v. Publishing Co., 44 So. Rep., 673; Osborn v. Leach, 135 N. Car., 628.
    We- submit, however, that all of these statutes may clearly be distinguished from the Ohio statute, and that the validity of the Ohio statute is satisfactorily supported in the decision of Publishing Co. v. Butler, supra.
    
   Davis, J.

We regard it as unnecessary to consider whether the demurrer to the first defense stated in the answer of the defendants should have been sustained. The demurrer to the first defense having admitted the facts pleaded for the purposes of the demurrer onlv, when the demurrer was overruled the issue made by the petition and the answer remained for trial; and therefore the court of common pleas erred in rendering judgment against the plaintiff on the pleadings and the circuit court erred in affirming that judgment. That is the necessary result in the view which we take of the third defense.

The second defense is evidently drawn with the intention of raising the point that the publication was one of a qualified privilege, and it is frankly admitted by counsel that this defense is-, irreconcilable with the ruling of this court in The Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549, and accordingly a vigorous effort is made to show that the doctrine of that case is wrong and should now be overruled. We shall not undertake to review the cases which counsel have brought to our attention from other jurisdictions. It is suffb cient to say that few, if any, of them are relevant to the precise facts of this case, and none of them -is convincing'to us that the case of The Cincinnati Gazette Co. v. Timberlake, supra, was wrongly decided. Whatever may be said as to the authorT ity, at the present time, of cases cited by the court in the opinion, the reasons given seem to be sound and even more applicable to the case now in hand than the one then under consideration. We quote ■from the opinion. “But in this case there is no claim that the' charge against, the plaintiff below was, in fact, true. The defense rests wholly ■ on the claim of privilege. And if the publisher, of a newspaper may, in virtue of his vocation, without responsibility, publish the details of every criminal charge before a police officer, however groundless, ■and whether emanating from the mistake or the malice of a third party, then must private character be, indeed, imperfectly protected. Such publications not only inflict an injury of the _ same kind with any other species of defamation, but -their tendency is also to interfere with 'the -fair and impartial administration of justice, by -poisoning ■the public mind' and creating a prejudice against a-party, whom the law still presumes to be .innocent.” What follows.this quotation in the opinion might well 'be adopted, mutatis mutandum, in the present case.

The publication was not a fair and accurate report of any judicial “proceeding” or, still less than the Timberlake case, of any purely "ex parte proceedings,” for in that case a warrant had been issued and an arrest had been made, although the accused was discharged on the very day of the publication. In this case no action had been taken by the justice of the peace, no warrant had been “issued” and no arrest had been made. It appears from the alleged retraction which is set out in the answer that the affidavit had not been sworn to and that the justice convinced the complainant that he could not maintain an action against the plaintiff whereupon he took the affidavit away without having sworn to it. We can not conceive of any-process of reasoning, nor of any considerations of public policy, which would justify-such a publication as this one was, under the facts of this case, as a privileged publication, in the face of the well supported doctrine that there is no privilege extended to the publication of papers which ■have been merely filed in court and on which there has been no judicial action. It was thus expressed in one case: “There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made-in their pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents^ can be published to the world by any one who gets access to them* no more effectual way of doing malicious mischief with impunity could be devised than, filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it. A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or on trial the case may entirely fail of proof 'or probability. The law has never authorized any such mischief. In Scripps v. Reilly, 35 Mich., 371, 38 Id., 10, this court found it necessary to decline accepting the doctrine of privilege in such cases.” Park v. Free Press Co., 72 Mich., 560, 568. The same distinction was recognized and the doctrine applied in Cowley v. Pulsifer, 137 Mass., 392; Sutton v. Belo & Co., (Civil App. Texas), 64 S. W. Rep., 686; Barber v. St. Louis Dispatch Co., 3 Mo. App., 377; American Pub. Co. v. Gamble, 115 Tenn., 663; Stuart v. Press Pub. Co., 83 N. Y. App. Div., 467, 478, 479. We need not pursue the discussion of this subject further. The demurrer to the second defense should have been sustained.

We come now to the consideration of a question of more serious import. The third defense was drawn under Revised Statutes, Section 5094, as amended and supplemented by an act passed April 16, 1900; 94 O. L., 295. The effect of the amendment^ as claimed by the defendants, and upon the construction adopted by the United States Court of Appeals in Post v. Butler, 137 Fed. R., 723, is that “it is optional with the person libeled to stand upon his rights under the old law, or to waive a part by demanding and accepting a retraction under the law as amended.” The federal court could see no way to sustain the statute as constitutional, except by adopting the construction above given; and we are o.f the opinion, for reasons that will appear, that even that construction, obviously resorted to for the purpose of saving the statute, will not relieve it from the taint of unconstitutionality.

The constitutional guaranties are that “every person, for an injury done him in his land, goods, person or reputation, shall have remedy by' due. course of law” (Const. Ohio, Art. I., Sec. 16), and, “No state .shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” Const. U. S., Fourteenth Amendment. In Park v. Free Press Co., supra, the court say: “There is no room for holding in a constitutional system that private reputation is anv more subject to be removed by statute from full legal protection than life, liberty, dr property. It is one of those rights, necessary to human society that underlie the-whole social scheme of civilization. It is a.thing which is more easily injured than restored, and where injury is capable of infinite mischief. And, on the other hand, it is, 'one where the injury is freqúently, ■ and perhaps generally, aggravated by malice. - The law has ■therefore always drawn distinctions between intentionally false and wicked- assaults on character, •and those which were not actually designed to •create a -false impression,- although necessarily tending to injure reputation if false in fact, but it has riiade both actionable.”- • • ■ .

In McGee v. Baumgartner, 121 Mich., 287, the •court approved and followed Park v. Free Press Co., holding that “The right to recover in an action of libel for damages to reputation; can not be abridged by statute.”

Now in what respect, if any, are the rights and privileges of the plaintiff abridged by the statute? Or, in what respect, if any, is he deprived of his remedy by due course of law? We confine'ourselves to the consideration of the statute as construed in Post v. Butler, supra, because this defense is'planted on Post v. Butler, and because if the statute as therein construed can not be sustained as constitutional, it is conceded in that case to be unconstitutional. ' “Due process' of law in each párticular case means such • an exertion of -the powers of government as the settled maxims of the law permit and sanction, and under such safeguards for protection of individual rights as those maxims prescribe for the class of cases to which ■the one in question belongs.” Cooley Const. Lim., Sec. 356. Due process of law has also been defined to be, “Law in its regular form of - administration through courts of justice:” 2 Kent Com., 10. It is obvious that it does not-mean that anything which the' legislature may declare, without regard to constitutional limitations, is due process of law; for that would abrogate all guaranties of the constitution. By settled principles of the common law, the publication of defamatory matter, which is false in fact and not privileged, is presumed to be malicious, that is, the plaintiff may recover without proving malice and the burden is upon the defendant to disprove it. This is the I substantive law and not mere matter of procedure. By the common law, also, one who is injured by such a publication may, by natural right, demand an apology or retraction, but unless it were accepted as a satisfaction it would not be a complete defense and would only be considered in mitigation of damages. This again is substantive law and not a matter of formal procedure. These rules have always been regarded as primary and essential in the law of libel for protection of reputation not only for injury which may be measured by money values, but for that “intangible but fatal influence which suspicion, helped by ill will, spreads beyond recall or reach by apology or retraction.” And therefore they are to be regarded as part of the “remedy by due course of law” of which the constitution declares that no person shall be deprived. These rights the legislature did not give to the libeled person and the legislature can not take them away. We are not disposed to question, at least for our present purpose we will not, that a citizen may waive a constitutional right; but we do deny that he can be compelled to waive his right, or that he can be arbitrarily subjected to an option to stand upon one right under penalty of losing another. Under this statute the plaintiff is given the choice of resorting to the courts without the right of demanding a retraction, or of demanding a retraction, and, if given, being limited in his right of recovery; and if he chooses either course, he must do it at his own peril and without any recompense whatever. Recurring again to the opinion in Park v. Free Press Co., supra, “it is not competent for the legislature to give one class of citizens legal exemption for wrongs not granted to others; and it is not. competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong.”

It was said in the argument that the circuit court in disposing of this case said that there could be no doubt that the legislature had the power to change the presumption as to malice. The constitutional power of the legislature to prescribe the presumptions of evidence and to change the rules of evidence was recently considered by this court in The Williams & Thomas Co. v. Preslo, ante, 328.

That was a case in which property interests were concerned, and it was held that the provisions of the constitution which require that laws regulating rights in property shall operate generally and equally, extend to statutes which prescribe presumptions and rules of evidence by which those rights are enforced. In other words, the guaranties of the constitution, which are the same for the protection of property and reputation, shall be regarded by the legislature as well in passing laws relating to evidence and remedies as to substantive law.

■ The demurrér to the third defense should have been sustained; and the judgments of the circuit court and court of' common pleas are

Reversed and cause remanded.

Spear, C. J., Shauck, Price and Johnson, JJ., concur.

Donahue, J., concurs in the first proposition of the syllabus, but does not concur in the second.  