Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1908-08-14
COURTS OPINION
IN LIBEL SUIT
Judge M'Fie Rem
ders Decision on
Demurrer
sUsTA|Ns IT IN PART
However Enough Of 1t is
Overruled as to Make
Case Go to Trial.

Case Go to Trial.
As announced yesterday, the New
Mexican herewith presents the full
text of the opinion handed down yes
terday by Judge John r. McFie in the
suit for libel brought against the Journ-
al Publishing company of Albuquer-
que by Colonel George w. Prichard
and to which suit counsel for the de-
fendant filed demurrer to the COM
plant The opinion treats with the de-
murrer, which the court sustains in
part and overrules in part. The result
is that the case must go to trial. The
opinion follows;
Courts Opinion.
George w. Prichard,
VS.. Libel, Case No. 62S7.
Journal Publishing Co.
In this case the plaintiff sues to re-
cover fifty thousand dollars, 100000
general damages for alleged libelous
articles published by the defendant of
and concerning the plaintiff individu-
ally and also as attorney general of
the territory and as an attorney at law.
There are six counts in the COM
plant each of them based upon the
publication of articles of different dates
and language.
A demurrer has been interposed to
this complaint raising four legal is
sues:
First. That the language used is
not libelous per Sc.
Second. There being no allegation
of special damages the action cannot
be maintained.
Third. There is no allegation that
the plaintiff had any lawful, profession
al or official connection with the trans
action as to which the alleged libels
were published and therefore no injury
done him in professional or official
capacity.
Fourth. That the language com
planned of does not support the inuen
does.
Inasmuch as the third paragraph Of
the demurrer goes to first four counts
of the complaint, it will be considered
first.
1t appears from the complaint thai
charges of cruel treatment of prisoners
had been brought against Arthur Trel
ford, at the time superintendent of tht
New Mexico penitentiary, and tina
Acting Governor ]. w. Reynolds ha(
ordered and was conducting an investi
cation and had requested the plaintiff
who was at the time attorney genera
of the territory to assist him in con
ducting the examination. The libelou
language alleged and the inuendoe'
based upon it; refer exclusively to tn
plaintiffs action in connection witt
this transaction.
Defendants counsel contend that thi
investigation was the business of tn
acting governor solely and that whil
he might request the attorney genera
to assist him in conducting it, Sectiol
2571 G. L. 1897, which prescribes tn
duties Of the attorney general, does no
make such services any part of his OF
fetal duties and therefore he was sim
ply volunteer and not acting in hi
official capacity, and further that evel
libelous publication as to that trans
action would not "touch" him in hi
official capacity.
Section 2571 makes 1t the duty of tn
attorney general when requested t
give his written opinion to the genera
assembly, the governor and all terri
torial officials and the district attorne
as to matters pending before them
when requested, shall prepare bonds
contracts and other instruments fo
territorial officials; when required
shall report to the governor or legisls
ture as to business pertaining to hi
Office, and do and perform all othe
duties and act on commissions an
boards now authorized or requested b
law to be done. The section also d.
fines his duties as to the trial Of eau
es as follows: "He shall prosecute an
defend all causes and proceedings
the supreme court in which the teri
tory may be a party or interested.
shall be his duty to attend and asst!
in the trial and prosecution of an
murder, or any indictment in any coul
ty, on the direction Of the governor,
the request Of the Judge Of the count
In which the trial may be had. H
shall also go on the request Of tt
auditor or treasurer, institute and pr
secute suits against delinquent tax CO
lectors, etc. In such proceedings it
made his duty to appear and his a
tions in such cases are in the dischare
Of official duties, but 1t Is not made h