
    IMMUNITY OF HUMANE SOCIETY OFFICERS FROM DISCLOSING NAMES OF INFORMANTS.
    Common Pleas Court of Montgomery County.
    State, ex rel. Irene Kehker, v. Fred Wolf, Sheriff et al.
    Decided June 28, 1927.
    
      Privilege■ — Duty of All Citizens to Assist in Prosecuting Breaches of the Peace — Immunity of Humane Society Officers from Disclosure by Compulsion Names of Informants.
    
    Communications made to officers of an humane society relative to cruelty or want of proper care of animals or children or destitute parents are privileged, and officers of such a society are immune from arrest for refusal to disclose the names of informants in such cases.
    
      A. McL. Marshall and Byron B. Harlan, for plaintiff.
    
      Cross & Brooks, for defendant.
   White, J.

This case comes before the court on an application of the relator for a writ of habeas corpus, and grows out of the following circumstances:

On March 14th a complaint was made to the Humane Society of Montgomery county, Ohio, that two dogs belonging to a man by the name of Griggs were suffering from mange and not' receiving proper treatment. The complaint came by telephone to Miss Kehker, the relator and clerk of the Humane Society who is charged with the duty of receiving complaints. The complaint went through the usual form provided for by society and was put upon the desk of Mr. Gordon Hiles, the investigating officer. Mr. Hiles thereupon went to where the dogs were said to be, but found only one of the two dogs, and it was in good shape, and he failed to see the other dog. He thought the dog was receiving proper treatment and came back to the office without causing an arrest. Griggs then filed a suit in the court of common pleas of Montgomery county, Ohio, against Gordon Hiles and one John Doe for trespass, claiming that he, John Doe, assisted the said Gordon Hiles in the trespass committed upon the property of the plaintiff at the time he was investigating the complaint filed. Depositions were then taken pursuant to proper notice and Miss Kehker, the relator and clerk of the Humane Society, was subpoenaed and was asked the question as to who made the complaint to her, which she refused to answer on the advice of counsel. She was then technically committed by the notary for failure to answer the questions. She was thereupon released on bond and has not actually suffered incarceration.

The case comes before this court on her application for a writ of habeas corpus. It is the contention of the relator that so far as John Doe is concerned in this case the petition is demurrable, and therefore any question as to who he is becomes absolutely immaterial to the plaintiff’s case and the question is irrelevant.

The court does not pass upon the question as it is immaterial in the opinion of this court. The real question involved is one pertaining to the privilege of the Humane Society and its employees to preserve secrecy in all cases of this kind. There is no contention but that the Montgomery County Humane Society is organized pursuant to the provisions of the General Code, and is now so acting and was so acting in the circumstances out of which this case arose. It is made the duty, by Section 13440 of the General Code, of the attorney for the Humane Society to prosecute the following cases:

1. Violations of law relating to the prevention of cruelty to animals or children;

2. Violations of law relating to.the abandonment, nonsupport or ill-treatment of a child by its parent;

3. Violations of law relating to the employment of a child under fourteen years of age in public exhibitions or vocations injurious to health, life or morals or which cause or permit such child to suffer unnecessary physical or mental pain;

4. Violations of law relating to neglect or refusal of adult to support destitute parent.

Thus it appears from this provision of the General Code that the attorney for the Humane Society has to do with the enforcement of the law and bringing to punishment violators thereof.

The court has diligently searched the digest for a similar case in Ohio or elsewhere, but has been unable to find any decision in point upon the subject. Whether the question is privileged is a question of law for the court to determine. Liles v. Gasper, 42 O. S., 631, p. 637. It was held in Parker v. Raddy, 14 O. C. C. (N. S.), 288, that communications made to police officers of the violation of the law are privileged communications. In the case of In re Quarles and Butler, Petitioners, 158 U. S. Reports, at page 532, the court held that it is the right of every private citizen of the United States to inform a marshal of the United States, or his deputy, of a violation of the internal revenue laws of the United States; and that that right is secured to the citizens by the Constitution of the United States of America.

Mr. Justice Gray in stating the opinion of the Supreme Court of the United States in this case, at page 535, says:

“It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by .the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offense against those laws; and such information, given by a private citizen, is a privileged and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government.”

He then cites the cases of Vogel v. Gruaz, 110 U. S., 311; United States v. Moses, 4 Wash. C. C., 726; Worthington v. Scribner, 109 Mass., 487. In the case of Vogel v. Gruaz, 110 United States, at page 311, the court held that

“A communication made to a state’s attorney, in Illinois, his duty being to ‘commence and prosecute’ all criminal prosecutions, by a person who inquires of the attorney whether the facts communicated make out a case of larceny for a criminal prosecution, is an absolutely privileged communication, and cannot, in a suit against such person fo recover damages for speaking words charging larceny, be testified to by the state’s attorney, even though there be evidence of the speaking of the same words to other persons than such attorney.”

It will be seen from an examination of the provisions of the General Code stated that it is the duty of the attorney for the humane society to investigate and prosecute the violations of law mentioned in that section of the General Code. It will be observed from the above decisions that communications made to the attorney, through his staff, are privileged communications. And in discussing privileged communications and this particular rule, Wigmore on Evidence, 2 Ed., Vol. 5, at Section 2374, says:

“The privilege applies to communications to such officers only as have a responsibility or duty to investigate or to prevent public wrong and not to officials in general. This ordinarily signifies the police and officials of criminal justice generally, but it may also include administrative officials having the duty of investigation or law enforcement in their particular sphere. The truth is that the principle is a large and flexible one; it applies wherever the situation is one where, without this encouragement, the citizens who have special information of the violation of law might be deterred otherwise from reporting it to the proper officials.”

I am of the opinion that a communication, made under the circumstances of this case to one who had a duty of law enforcement under the provisions of the General Code, is a privileged communication on the ground of public policy, because without this encouragement the informant who had knowledge of a violation of law would be deterred from reporting it to the humane society and the function of the humane society in a great measure would then cease. For this reason I am of the opinion that the writ should issue. An entry may be prepared accordingly.  