
    Ed. A. Koen v. State of Nebraska.
    [Filed November 16, 1892.]
    1. Libel: Felony: Misdemeanor. In a prosecution for a false and malicious libel charged to have been published in the Kansas City Sun, a newspaper published and of general circulation in Douglas county, Nebraska, held, that to charge a felony the paper must be of general circulation and that the limitation to one county merely charged a misdemeanor.
    2. -: Newspapers : General Circulation. It is not necessary that the newspaper cirbulate to any considerable extent, if at all, out of the state, nor that it circulate in every county in the state, but it must extend beyond the county in which it is published and have a general circulation.
    Error to the district court for Douglas county. Tried below before Davis, J.
    
      Ambrose & Dnffie, and Lindsley & Lióle, for plaintiff in error.
    
      George H. Hastings, Attorney General, and W. S. Shoemalcer, contra.
    
   Maxwell, Ch. J.

The plaintiff in error was convicted of criminal libel in the district court of Douglas county and sentenced to imprisonment in the penitentiary for three years.

Section 47 of the Criminal Code provides: “If any person shall write, print, or publish any false and malicious libel of, or concerning another, or shall cause or procure any such libel to be written or published, every person so offending shall, upon conviction thereof, be fined in any sum not exceeding $500, or be imprisoned in the county jail not exceeding six months, or both, at the discretion of the court, and, moreover, be liable to the party injured; Provided, That if said libel is published in a newspaper having a general circulation, the person so offending shall be punished by imprisonment in the penitentiary not less than one nor more than three years.” The charge in the indictment is “that Ed. A. Koen,.unlawfully, maliciously, and feloniously, did compose, write, and publish, and cause to be composed, written, and published, in a certain newspaper called The Kansas Qity Sun, published and of general circulation in the county of Douglas, in the state of Nebraska, a certain false, scandalous, malicious, and defamatory libel of and concerning the said Nettie Wilson.” It will be observed that the charge is that the libel was published in The Kan sas City Sun, published and of general circulation in the county of Douglas, in the state of Nebraska. It will be seen that the statute provides for two classes of cases: First, for printing, publishing, etc., a libel. This no doubt applies to ordinary cases. Where there is a conviction under such circumstances the person found guilty may be imprisoned in the county jail or fined, or the court may .impose both fine and imprisonment. The statute is based upon the theory that one who prints and publishes a false and malicious libel against another — one calculated to injure his good name and reputation and injure or destroy his influence — should be branded as a violator of the law at least, if not as a criminal.

Every person is entitled to protection in the peaceful enjoyment of his property, good name and fame. The wise man said, “A good name is rather to be chosen than great riches, and loving favor rather than silver and gold” (Prov. 22:1); and his words are as applicable to-day as when uttered. A person who willfully and maliciously .violates the law by a publication of the kind named has no just cause of complaint if the law is vindicated by punishing him for the offense. The law, however, increases the penalty in proportion to the injury. If the libel is published in a newspaper of general circulation, then the punishment is by imprisonment in the penitentiary. The fourth and fifth definitions given by Webster of the word “ general ” as an adjective are as follows: “Common to many, or the greatest number; widely spread; prevalent; extensive, though not universal; as, a general opinion; a general custom. * ■ * * 5. Having a relation to all; common to the whole; as, Adam, our general sire. Milton.” And the synonyms as follows: “ Common denotes primarily that in which many share; and hence, that which is often met with. General is stronger, denoting that which pertains to a majority of the individuals which compose a genus, or whole. Universal, that which pertains to all without exception. To be able to read and write is so common an attainment in this country that we may pronounce it general, though by no means universal.” The word is in «common use in designating general and local laws. Thus, in Kelley v. State, 6 O. St., 269, the constitution required all laws of a general nature to be uniform in their operation throughout the state. An act was passed giving to the court of common pleas jurisdiction of certain criminal cases in some of the counties but not in all, and the act was held to be in conflict with the constitution. There was no dispute as to the meaning of the word “general,” but two of the judges were of the opinion that the case was within certain exceptions named.

In State v. Anderson, 44 O. St., 247, an act had been passed which applied to the city of Akron alone, and it was held to be a special act, although it purported to be general in its nature, and the same doctrine was declared in State v. Winch, 45 O. St., 663, and State v. Ellet, 47 Id., 90. In State v. Hawkins, 44 O. St., 98, and State v. Hudson, Id., 137, the distinction between a general and special statute is very clearly defined. These rules have been recognized by this court. Thus, in School District v. Clegg, 8 Neb., 178, it was held that an act authorizing a certain school district to issue bonds was special legislation. So an act declaring a certain ordinance of the city of Lincoln valid was held to be special legislation. (Hallo v. Helmer, 12 Neb., 87.) And an act to authorize Falls City precinct to issue bonds was held to be special, and therefore invalid. (Dundy v. Richardson Co., 8 Neb., 508.)

In McClay v. City of Lincoln, 32 Neb., 412, it was held that a law framed in general terms, restricted to no locality and operating equally upon all of a group of objects, is not a special law.

In State v. Berka, 20 Neb., 379, it is said: “If a law is general and uniform throughout the state, operating alike upon all persons and localities of a class, or who are brought within- the relations and circumstances provided for, it is not objectionable as wanting uniformity of operation. (McAunich v. R. Co., 20 Ia., 338; Haskel v. City of Burlington, 30 Id., 232; B. Co. v. Soper, 39 Id., 112; State v. Graham, 16 Neb., 76; Cooley, Const. Lim., sec. 390.)”

Judge Sutherland in his work on Statutoiy Construction, sec. 116, says: “Laws of a general nature are those which relate to subjects of that nature, and deal generally with them. The requirement involves the question, What is such a subject, and how comprehensively it must be treated in legislative acts? Laws to which the requirement is applicable rnusj; be so'framed as to have a uniform operation throughout the state.”

Judge Dillon in his valuable work on Municipal Corporations, sec. 20, in speaking of general laws creating municipal corporations, says: “Within a period comparatively recent the legislatures of a number of the states, following the examule of the English municipal corporations act of 5 and 6 Will. IV, cap. LXXVI, heretofore mentioned, have passed general acts respecting municipal corporations. These acts abolish all special charters, or all with enumerated exceptions, and enact general provisions for the incorporation, regulation, and government of municipal corporations. The usual scheme is to grade corporations into classes according to their size, as into cities of the first class, cities in the second class, and towns or villages, and to bestow upon each class such powers as the legislature deems expedient; but the powers and mode of organization of corporations of each class are uniform. General incorporation acts, rather than special charters, would seem clearly to be the best method of creating and organizing municipal corporations.. First — It tends to prevent favoritism and abuse in procuring extraordinary grants of special powers. Second — It secures uniformity of rule and construction. Third — All being created and endowed alike, real wants are the sooner felt and provided for, and real grievances the sooner redressed.”

Many other cases to the same effect might be cited.' Section 251 of the Criminal Code provides that “ no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit.”

Now will any one contend that a statute applicable to Douglas county alone is a general law ? The authorities, without an exception so far as I have observed after a' pretty careful research, hold that such an act is not general but special.

Let us apply these rules to the case at bar.

The statute provides that a person who publishes a false and malicious libel against another in a newspaper of general circulation shall be punished by imprisonment in the penitentiary for not less than one nor more than three years. Here the highest term of imprisonment is six times as great as in an ordinary case, together with the brand of infamy and the loss of civil rights from conviction. Is this severe punishment to be inflicted unless the offense was committed in the manner indicated; that is, in a newspaper of general circulation? If the circulation of a paper in one county is a general circulation, then why is not the same true if it circulates in a village, township, or other subdivision of a county ? If the circulation in any of these subdivisions, or the county itself, constitutes a general circulation, then'the court will find it impossible to distinguish between the cases where the punishment is imprisonment in the county jail and those of imprisonment in the penitentiary. It is not necessary that the newspaper circulate to any considerable extent, if at all, out of the state, nor that it circulate in every county of the state, but it must extend beyond the county where it is published and have a general circulation.

It may be said that the party who first publishes the libel, and thus puts it in the power of others, whether intentionally or not, to further injure the plaintiff by a further publication, should, be punished to the full extent of the law. The answer to this is that persons must beware what they publish at second-hand, and because one party has made a false and malicious statement in regard to another the second publisher must ascertain its truth before he gives it his indorsement by publishing the same. But to constitute a penitentiary offense the publication must be in a newspaper in general circulation. By that we understand a paper not restricted to one County, nor necessarily to the state itself. In charging the offense, therefore, it should be done in the language of the statute, without limitation to a particular county. The pleader, after stating the general circulation of the paper, may then allege that it was published in a certain county, so as to give the courts of that county jurisdiction.

The indictment fails to state a felony, therefore, and the judgment must be reversed. The charge alleged being merely a misdemeanor, the plaintiff in error should not have been sentenced to the penitentiary; but it is evident that he was rightfully convicted of a misdemeanor, and the cause is remanded to the district court of Douglas county to impose a proper sentence for that offense. ,

Judgment accordingly.

The other judges concur.  