#### Ruhland, Appellant, vs. Cole, Respondent. Same, Respondent, vs. Same, Appellant.

*September 15*—

October *4, 1910.*

*Wbel: newspapers: Discussion of public matters: Charges of criminal conduct: Intimidation of witnesses in proceeding to revolee liquor license.*

1. Words published in a newspaper concerning the appearance of plaintiff (a brewer) before a city council to oppose the revocation of the liquor license of a third person, in which it was suggested, among other things, that plaintiff was interested in the matter contrary to “the law that brewers cannot take out a license to run a saloon,” and that the brewing company dominated the council on that occasion and was “bigger than the en*368tire city government,” and which al^b stated that John Barleycorn was ‘‘bigger than the entire city government,” are *held*not. libelous.

2. A statement in such publication with reference to the proceeding before the council that “the wheels of government stopped to. oil up again for another session of the trial,” is *held*not capable of the meaning ascribed thereto by innuendo that plaintiff' had corruptly influenced members of the council.

3. In libel the alleged defamatory words must be capable of the-meaning ascribed to them by the innuendo.

4. Editors or publishers in their newspapers may take part in the-discussion or debate of public matters with the same freedom as other citizens.

5. In newspaper publications concerning matters of public interest, untruthful accusations of crime or untruthful insinuations of criminal conduct, or untruthful or scandalous or defamatory expressions tending to subject the person written of to public ridicule, hatred, or contempt, are libelous.

6. To procure a warrant to be issued against a person who is a witness in a proceeding before a city council to revoke a retail liquor dealer’s license, for the purpose of intimidating that witness in giving his testimony in such proceeding, is a misdemeanor at common law.

7. A publication falsely charging one with having caused warrants-to be issued for persons summoned as witnesses in a proceeding for the revocation'of a retail liquor dealer’s license with the intent to intimidate such witnesses and so deter them from testifying, is libelous.

'Appeals from an order of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.

*Affirmed in part;reversed in part.*

Cross-appeals from an order sustaining a demurrer for insufficiency to the first and second causes of action and overruling a like demurrer to the third and fourth causes of action contained in a complaint for libel.

The cause was submitted for the plaintiff on the briefs of *Grotophorst, Evans •& Thomas,*and for the defendant on the briefs of *Bentley, Kelley & Hill.*

Among other references upon the part of the plaintiff were the following: *Scofield v. Milwaulcee F. P. Go.*126 ,Wis. 81, *369105 ET. W. 227; *P'fister v. Sentinel Co.*108 Wis. 572, 84 EL W. 887 5 *Moley v. Barager,*77 Wis. 43, 45 ET. W. 1082; *Muetze v. Tuteur,*77 Wis. 236, 46 ET. W. 123; *Monson v. Lathrop,*96 Wis. 386, 71 ET. W. 596; *Buckstaff v. Viall,*84 Wis. 129, 54 ET. W. Ill; *Hamlin v. Pantl,*118 Wis. 594, 95 ET. W. 955; *Ddbold v. Chronicle P. Co.*107 Wis. 357, 83 2L W. 639; *Robertson v. Edelstein,*104 Wis. 440, 80 EL W. 724; *Elmergreen v. Horn,*115 Wis. 385, 91 ET. W. 973; *Benedix v. German Ins. Co.*78 Wis. 77, 47 ET. W. 176; *Werner v. Ascher,*86 Wis. 349, 56 ET. W. 869.

Among otter references cited upon the part of defendant were the following: *Smith v. TJtley,*92 Wis. 133, 65 ET. W. 744; *Filber v. Dautermann,*28 Wis. 134; *Egan v. Semrad,*113 Wis. 84, 88 ET. W. 906; *Kraus v. Sentinel Co.*60 Wis. 425, 19 ET. W. 384; *Cramer v. Noonan,*4 Wis. 231; *Platto v. Geilfuss,*47 Wis. 491, 2 ET. W. 1135; *GUlan v. State Journal P. Co.*96 Wis. 460, 71 ET. W. 892; *Solverson v. Peterson,*64 Wis. 198, 25 ET. W. 14; *Massuere v. Dickens,*70 Wis. 83, 35 ET. W. 349; *Docter v. Riedel,*96 Wis. 158, 71 ET. W. 119; *Birdsall v. Birdsall,*52 Wis. 208, 8. ET. W. 822; *Benz v. Wiedenhoeft,*83 Wis. 397, 53 ET. W..686; *Pandow v. Eich-sted,*90 Wis. 298, 63-EL W. 284; *Cluie v. Clute,*101 Wis. 137, 76 ET. W. 1114.

Timlin, J.

Matter of inducement contained in the first five paragraphs of the complaint. and made applicable to each count averred that plaintiff was a resident of Baraboo engaged in conducting a brewery, and the defendant a resident of the same city engaged in the' publication of. a daily newspaper called the Evening ETews, having a large circulation, etc. Plaintiff had been an alderman of Baraboo, is a member of the board of supervisors for Sauk county, and enjoys a good reputation. The Buhland Brewing Company is a Wisconsin corporation, of which plaintiff is secretary and treasurer and owns all the stock and alone controls the af*370fairs and general business thereof. Plaintiff’s sister owns a building in Baraboo occupied by one John Harris as lessee, who conducts a retail liquor business therein. About February 1, 1910, a proceeding was commenced before the common council of Baraboo to revoke the liquor license of this Harris because of alleged illegal sales of intoxicating liquor by him at bis said place of business to certain minors, and this proceeding was pending before the common council on February 24, 1910. The plaintiff was present at the meeting of the common council on that evening and Harris appeared, denied the charge, and the proceeding to revoke his license was adjourned until February 28, 1910.

Following this the first cause of action attempted to be set forth avers that on February 25, 1910, the defendant in his said newspaper wrote, printed, and published of and concerning the plaintiff the following false, libelous, and defamatory matter in an article entitled: “Just a Few Questions,” to wit:

> “There is a law that brewers cannot take out a license to run a saloon. Why is the Ruhland Brewing Company so interested in the Harris case? Who owns the saloon? Looks queer, doesn’t it? What right had *Charles BvJiland*to speak at the council meeting ? *Charles Ruhland*was once an alderman and is now a member of the Sauk county board of supervisors. The average citizen would suppose that he believed in protecting the peace and dignity of the state. He undoubtedly thinks John Harris guilty, else he would not cause warrants to be issued against the minors. What do you think of that ?”

This is followed by an innuendo reciting that by this statement was meant that plaintiff had violated the laws of the state of Wisconsin relative to liquor licenses, etc., and that this defamatory matter so written, composed, printed, published, and circulated by the defendant brought the plaintiff into social disgrace, public distrust, hatred, ridicule, and con*371tempt, and "was so understood by divers persons, to the damage of the plaintiff.

The second separate cause of action charges in the same form the publication on the same day of the following:

> “What kind of sand are those aldermen standing on who first voted to go on with the case and then after receiving a, Shakespearian pound of flesh broadside from the John Barleycorn attorney, decided to continue the matter. If the city council permits a brewing company to come in and run the business for them, why not invite Cannon, Aldrich, and the Steel trust. Is the council controlling John Barleycorn or is John Barleycorn boss of the council?”

Also another like publication in the same paper of an article entitled: “A Splendid Farce at Cify Council,” with a headline as follows: “The Ruhland Brewing Company bigger than the entire city government.” Also under this headline : “John Barleycorn is bigger than the entire city government.” By innuendo this is charged to mean that the plaintiff is the personification of malt liquor and a drunken, contemptible sot, and to liken him to that worthless, drunken, lawless, and detestable character ordinarily called in popular parlance John Barleycorn, to plaintiff’s damage.

The demurrer to the foregoing counts was properly sustained. The published matter charges no crime against the plaintiff. The hearing before the common council was for the purpose of examining and deciding the question of revocation of the license and in this proceeding the public is interested. It cannot be said that because the plaintiff was a brewer and could not by law take out.a license to run a saloon, but nevertheless was interested in the case, opposed the revocation of the license, and spoke at the council meeting, or caused warrants to be issued against minors, that the publication of such matters would tend to subject the plaintiff to public distrust, hatred, ridicule, or contempt. The publication set forth in these two counts does not go beyond the or*372dinary limits of argument. It is suggested by interrogation that tbe plaintiff was not impartial, that be bad no right to' speak at tbe meeting, that bis conduct seemed strange, and that be no doubt believed Harris guilty of selling liquor to minors. Tbe second count refers more particularly to a lack of fairness on tbe part of tbe aldermen who first voted to go on witb tbe case and tben, after bearing tbe argument of tbe attorney opposed, decided to continue tbe matter. Tbis .argument is ambiguously and eloquently described as “A Shakes-pearian pound of flesh broadside,” and tbe lawyer is referred’to as “the John Barleycorn attorney.” Tbis last does not relate to or concern tbe plaintiff. Tbe defendant wishes to know whether the council is controlling John Barleycorn or John Barleycorn is boss of tbe council. We must assume that tbis proper name is used in tbe usual manner as a personification of intoxicating liquor and is not intended to designate tbe plaintiff. Tbe remaining expressions, “Tbe Buhland Brewing Company bigger than tbe entire city government,” contained in tbe headline, and tbe words in tbe body of tbe article, “Jobn Barleycorn is bigger than tbe entire city government,” we are convinced are not libelous. It is neither criminal nor contemptible to be big or to exceed in size tbe city government. “Bigger,” as it is here used, means more powerful. But it suggests no improper acquisition or. exercise of power. Editors or publishers of newspapers may in tbe columns of their papers argue in opposition to or in advocacy of any public measure like other citizens, and in doing so they are not confined within narrow limits, but outside of tbe restrictions of tbe libel law tbe whole compass of eloquence, imagery, and logic is available to them. They may enter tbe lists of debate armed witb all tbe weapons in tbe arsenal of logic, embellished witb all tbe ornaments in tbe gallery of rhetoric. As was humorously but not inaccurately said in *Berry v.*Georgia, 10 Ga. 511, 523:

> “Here, under tbe fullest inspiration of excited genius, they may give vent to their glowing conceptions, in thoughts that *373breathe and words that bum. Hay more, giving reins to their imagination, they may permit the spirit of their heated ■enthusiasm to swing and sweep beyond the flaming bounds of .■space and *time*— exira *flammantia mcenia mundi.”*

In this illimitable field for the exercise of their talents they have only to avoid untruthful accusations of crime or untruthful insinuations of criminal conduct and such untruthful, ■scandalous, and defamatory expressions as would subject the person written of to public ridicule, hatred, or contempt.

The third cause of action sets forth the same words that appear in the second cause of action and in addition the following:

> “Everybody in town expected that the license would be revoked, even the saloonkeepers themselves said so. Then why ■did the council make a farce of the whole 'matter ?”

Also the following:

> “A Splendid Earce at City Council — Much Wrangling of Xawyers and General Confusion — Only One Witness was Examined — The Ruhland Brewing Company bigger than the •entire city government. John Barleycorn is bigger than the ■entire city government. That has been the opinion of many for several years and it was most emphatically expressed at the city council meeting on Thursday night. During the •examination of the first witness in the John Harris case, the Ruhland Brewing Company put down its foot, there was much wrangling of lawyers, the members of the council were threatened and the wheels of government stopped to oil up again for another session of the trial. After the regular business had been transacted Mayor Hull, called the Harris case, the question being the revoking of his license on the complaint of selling to minors. Alderman Altpeter made the first move on the checkerboard by asking if the complainant, S. W. Kenyon, had furnished a bond to pover costs. While Mayor Hull and City Attorney John M. Kelley held a little ■conference, Alderman Risley told the council that Alderman Altpeter was out of order, because, if a bond was desired, it should have been asked before the summons was issued. City Attorney Kelley then read the law and said that the bond’ for the costs should have been asked before the summons was *374issued. Aldermau Altpeter thought it strange that a bond had not been exacted. Alderman Welk replied that' the council had not asked anything of the kind and that it was not to be expected. Alderman Jacobs said that it had not been asked and supposed that it was not requested. Aider-man Thuerer then asked if it would be proper to go on with the case, and when assured that it would moved to proceed. It was seconded by Alderman Altpeter and carried by unanimous vote, all of the aldermen being present. . . . Only a small part of what was said and done is here given. It is impossible to narrate all of the threats, abuse, and insinuations that were handed out. All in all it was a grand farce. The council permitted the attorney for the Brewing Company to come in and stay the whole proceeding when the attorney himself acknowledged that he did not represent Harris. It was the same old farce as before. For oné night the Brewing Company'was bigger than the city council.”

This is followed by an innuendo to the effect that it was meant thereby that the plaintiff had unlawfully bribed, corrupted, and improperly influenced members of the common council, etc.

We cannot agree with the learned circuit judge that there is anything to libel the plaintiff in this publication, much less, that it insinuates or means that the plaintiff had unlawfully bribed, corrupted, or improperly influenced the members of the common council. There is the suggestion that the brewing company, and through it the plaintiff, had great influence on the common council or dominated the common council on the occasion in question, but not by improper or unlawful means. It is suggested that the statement that “wheels of government stopped to oil up again for another session of the trial” contained some insinuation of corrupt dealing, but judging from the context above and the words themselves this does not appear plausible. We do not think these words are capable of the meaning sought to be given to them by the innuendo. The writer probably referred to drinking of intoxicating liquors by.the officers during the adjournment. So-*375far as the third count is concerned the demurrer should have heen sustained.

The fourth count avers the publication at the same time in the same manner of the following:

> “A Splendid Earce at City Council.” “Mr. Kenyon then said he understood there were warrants in the room to arrest all the boys in the case. (He was partly right, *Charles Ruhland*had caused warrants to be issued for part‘of the boys, no doubt to frighten them.) . . . If the Enhland Brewing Company desired to know the evidence, why has *Charles Ruhland*sworn out warrants for several of the minors ? . . „ *Charles Ruhland*was once an alderman and is now a member of the Sauk county board of supervisors. The average citizen would suppose that he believed in protecting the peace and dignity of the state. He undoubtedly thinks John Harris guilty else he would not cause warrants to be issued against the minors. What do you think of that ?”

> “Meaning thereby that this plaintiff, knowing said Harris was guilty of the offense of selling liquor to minors in violation of law, had abused the process of a criminal court of the state of Wisconsin for the purpose of intimidating said minors to prevent them or any of them from testifying in the proceedings before the council to revoke the license of said John Harris as a retail liquor dealer,-and that plaintiff was guilty of obstructing public justice, and meaning the plaintiff so abused the process of a criminal court of this state without cause, justification, or excuse, and that the said minors were guilty of no offense whatever and the action of plaintiff was groundless and malicious, and that he had in fact warrants to issue to suppress the testimony of said minors and to aid the said Harris in evading the laws of Wisconsin and to assist him in defeating public justice in said proceeding to revoke the Harris license, and by such false, libelous, and defamatory matter brought the plaintiff into social disgrace, public distrust, hatred, ridicule, and 'contempt, and the matter so published and circulated by defendant was so understood by *376divers persons who read the same both within and without the state of Wisconsin,” to the injury of plaintiff, etc.

The matter here charged is libelous.

> “The doing of any act tending to obstruct the due course of public justice has always been held indictable as a misdemeanor at common law. Bribing, intimidating, or persuading a witness not to testify, or not to attend court, are each among-the readiest and the most corrupting of this class of misdemeanors.” *State v. Keyes,*8 Vt. 57, 67, 30 Am. Dec. 450; *State v. Baller,*26 W. Va. 90, 53 Am. Rep. 66; 10 Am. & Eng. Ency. of Law (2d ed.) 1041 and authorities in note.

This rule of the common law was announced originally with reference to intimidating or bribing witnesses called or to be called by the state in a criminal prosecution. But it was the public nature of the prosecution and not the nature of the act prosecuted that gave rise to the rule, and the rule has been extended in England to special proceedings relating to the collection of revenue. *State v. Keyes, supra.*The proceeding for revocation of license before a city council is a proceeding in which the public is interested, and the intimidation of witnesses called or to be called in behalf of the public, under the common-law rule above quoted, applied to present conditions, is a misdemeanor. Charging the plaintiff with such conduct does also tend to subject him to public ¡hatred or contempt. What offense was charged against the minors is not stated, but there is a suggestion that no offense was committed by them and that the warrants were issued ior an improper purpose. .

The order of the circuit court is therefore affirmed in sustaining the demurrer to the first and second counts of the complaint, reversed in overruling the demurrer to the third count ■of the complaint, and affirmed in overruling the demurrer to the fourth count of the complaint. The plaintiff as appellant Las submitted a printed case and brief on his appeal and a brief as respondent on defendant’s appeal. The defendant as *377••appellant Ras submitted a printed case and.brief and a brief .as respondent on plaintiff’s appeal. Tbe plaintiff should pay the clerk’s fees. ISTo other costs to be taxed in this court.

*By the Gourt.*— It is so ordered.