The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-09

volved on the plaintiff to ailege and
prove that it was both false in fact
and malicious in purpose"
The moral and social duty of mem
bers of a great fraternity or of great
church organization to inform their
brothers of the scandalous conduct of
fellow member or or one of their
leaders Is no higher or stronger than
administration pure by warnings re-
specting the character and conduct of
a candidate for office; and if false
words are not actionable in one case
unless published with actual malice
they are privileged to the same extent
in the other. Such is the clear
declaration of the court in the case of
the State VS.. Balch 81 Kan, 465. True
of privilege is the same in both civil
and criminal actions. 1t is the occas-
ion which gives rise to privilege and
this is unaffected by the character of
subsequent proceedings in which it
may be pleaded.
In Balch's case a printed article
making grave charges against the
character of a candidate for county
attorney was circulated among the
voters of the county previous to the
election. In the opinion holding the
occasion to be privileged the court
said:
'If the supposed libelous article
was circulated only among the voters
OF CndSe county, ana only Tor the pur-
pose of giving what the defendants be-
lieved to be truthful information, and
only for the purpose of enabling such
voters to cast their ballots more in
telligently. and the whole thing was
done in good faith. we think the
article was privileged and the defend
ants should have been acquitted, al
though the principal matters con-
tanned in the article were untrue in
fact and derogatory to the character
nf in
Generally. we think person may
in good faith publish whatever he
may honestly believe to be true, and
essential to the protection of his own
interests or the interests of the person
or persons to whom he makes the
publication, without committing any
public offense, although what he pub
fishes may in fact not be true and
may be injurious to the character of
others. And we further think that
every voter is interested in electing to
office none but persons of good moral
character, and such only as are rea-
sonably qualified to perform the duties
of the office. This applies with great
force to the election Of county attor-
neys."
Substantially the same doctrine is
the basis of the following decisions:
Mott VS.. Dawson, As Ia, 533; Bays VS..
Hunt. so Ia. PSI; Marks VS.. Baker,
% Mimi, 1852; the State VS.. Burnham,
8. N. H, "a; Palmer VS.. Concord, As
N. H, 211; Carpenter VS.. Bailey, SO
N. H, $50; Briggs, VS.. Garrett, Ill Pa.
Pa. ST. 5S4; Jackson VS.. Pittsburg
Times, 1872 Pa. st. 400; Myers vs.
Longstaff. IA S. D., SO; Express Print
ing Co, VS.. Copeland, "a Tex. 354;
Shurtleff vs. Stevens, 81 VT. SOL; Pos
nett VS.. Marble, 81 VT 481; O'Rourke
VS.. Publishing Co., SO Me-, 80; Crane
VS.. Waters, 10 Fed. 619.
The plaintiff asks that the decisions
of this court quoted above be over
ruled and that they be supplanted by
conception of the law of privilege
held by the majority of the courts
Kirkpatrick's case was decided in
1881 and Balch's case in 1884. The
old. A quarter of century has
elapsed since the doctrine of those
cases was promulgated and the legis-
lature, coming directly from the peo-
pie year after year has not seen fit
to make any modification of it, Surely
in that length of time, and in view of
the repetition of the error If any were
committed, some legislative action
would have been taken to safeguard
the regulations of our citizens if they
were unduly imperiled by those de-
cisions. The fact that SO many courts
Of this country, all of high character
OF great learning and ability, and all
equally interested in correctly solving
[,
differ from US, makes us pause; but
reversal of policy and the overturning
of what has been so long as settled
law would be tantamount, under the
to legislation. Such a
step ought not to be urged upon the
court except for conclusive reasons.
What are the reasons supporting the
rule?
The decision most freely quoted
since it was rendered in 1898 and
~ IL
here. is that of the United States cir
cult court of appeals for the sixth
circuit in the case of the Post Pub |
Co, VS.: Hallam, 16 U. S. App. 613
g e. c. A. 2o1, SO Fed. 500 Counsel
In the case had argued from the duty
Of newspapers to keep the public in |
formed concerning those who are
seeking their suffrages and confidence, !
and had asked If it were possible that |
the privilege allowed in discussing the !
character of public servants should be !
less than that which protects de-
famatory statements made concerning
4 private servant. The opinion states |
this argument and then proceeds as |
follows:
THE existence and extent of privilege
n communications are determined by |
balancing the needs and good of society |
against the right of an Individual to |
enjoy good reputation when he has
lone nothing which ought to iniure it. |
The privilege should always cease
where the sacrifice of the individual
light becomes so great that the public |
good to be derived from it is outweigh
I'd. Where conditional privilege is ex-
ended to cover a statement of dis |
graceful fact to a master concerning a
servant or one applying for service, the
covers a bona fide statement
IN reasonable grounds to the master
,nly, and the injury done to the SER
yant's reputation is with the master
nj is 6n Of EQ /
which the rule compels the servant to
uffer in what was thought to be, when
he rule became law, a most important
interest to society. But, if the priv