The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-09
Full Opinion of Supreme Court
in Coleman Case.
History of Newspaper Libel
Laws Is Disclosed.
WHAT is PRIVILEGED
Acts of Candidates Are of Pub
lie Concern.
Dangerous to Restrict the Liber-
ty of the Press.

As announced in this paper on Sat-
Urday, the Kansas supreme court has
affirmed the decision of the Shawnee
county district court in the libel suit
brought by former Attorney General Z
c. Coleman, sustaining the State Jour
nal in printing the charges against c.
c. Coleman, ]. r. Burrow and I. L.
Dayhof who constituted the state
school fund commissioners. This de-
cision of the supreme court was ex-
pressed in long and able opinion by
Justice R. A. Burch, who is acting
chief justice in the absence Of Chief
Justice Johnston. This opinion of JUS
tice Burch is of such great Importance
as an Interpretation of the libel laws of
the state that it is herewith printed in
full. The court was unanimous:
c. G. Coleman VS.. f. p. MacLennan.
No. 1895. Error from Shawnee coun-
ty. Affirmed.
SYLLABUS BY THE COURT.
BURCH, j.
l. IF the publisher of a newspaper
circulated throughout the state publish
IN article reciting facts and making
comment relating to the official con-
duct and character of a state officer,
who is a candidate for reelection, for
the sole purpose of giving to the peo-
pie of the state what he honestly be-
lieves to be true information, and for
the sole purpose of enabling the vot-
ers to cast their ballots more intelli-
gently, and the whole thing is done in
good faith, the publication is priv
legged although the matters contained in
the article may be untrue in fact and
derogatory to the character of the can
didate.
2. Generally, publication should be
no wider than the moral or social duty
10 If=T, he 1asic rT3a n 1xy nm
necessarily or negligently excessive,
privilege is lost. But if a state news
paper published primarily for a state
constituency have a small circulation
privilege in the discussion of subjects
of statewide concern because of that
fact.
g. If on the trial of a suit for libel
the jury should find specially from the
evidence that the plaintiff suffered no
damages. from the publication COM
planned of, it will not be presumed that
the finding was induced by lnstruc-
lions regarding particular questions in
the case not related to that of dam
ages; and the question whether snch
instructions misstate the law becomes
immaterial because they could not af-
feet the plaintiffs substantial rights.
The opinion of the court was deliver
ed by Burch, j.: In Aug, 1904, the plain
tiff held the office of attorney general
of the state and was a candidate for
reelection at the general election
which occurred in the following Novem-
Der. BY virtue of his office he was a
member of the commission charged
with the management and control of
the state school fund. The defendant
was the owner and publisher of The
Topeka State Journal, a newspaper
published at Topeka and circulated
both within and without the state. In
the issue of the date mentioned APP
reared an article purporting to state
4-o 70 lni int nfH lei
conduct in connection with a school
fund transaction, making comment
upon them and drawing differences
from them. Deeming the article to be
libelous the plaintiff brought an action
for damages against the defendant al
leging that the matter published con-
corning him was false and defamatory
and that its publication was the fruit
of malice Among other defenses the
defendant pleaded facts which he
claimed rendered the article and it's
publication privileged.
At the trial instructions presenting
the plaintiffs view of the law of privi-
lege were refused and the following in
struction was given to the jury in
stead:
GAS you have already observed from the
as his first defense, that the publication |
is what is known in law as 'PriXileged,
communicating has an interest, or in |
reference to which he has a duty, public |
or private. either legal, moral or social, |
e made to person having correspond |
va ga an article is published and circu-
lated among voters for the sole purpose
be truthful Information. concerning a |
candidate for public office and for the
Their ballot more inteiiigently and the /
whole thing is done in good faith, and
although the principal matters contained |
IN the article may be untrue in fact and
tin. and In such a case the burden is on
the plaintiff to show actual malice in the
from the evidence in this case that on
August 20th 1904, plaintiff was candidate
general; and that defendant published
said article for the sole purpose of giving
to be truthful information concerning the
acts Of the attorney general and only for
cast their ballots more intelligently and
that the defendant made all reasonable ef-
fishing the same. and that the whole thing
was done in good faith. and without
man b bl nf fba dn9 You oe e f
said paper was within the state of Kansas
state of Kansas was only Incidental, Their
/ instruct you that your verdict must be
lieve that the principal matters contained
in said article untrue in fact and derog-
on the contrary If you should find from
the evidence that said article was publish
Wrong ms'a ana injure plsnt then e the fact
that the article is a privileged one would
no defense to this action and
the plaintiff would be entitled to recover
such damages as the evidence shows him
to have sustained by reason of said pub
lication."
In the course of the trial it became
material whether the -purchasable
quality of county bonds offered to the
school fund may be predicated upon
the equahzed valuation of property in
stead of its assessed valuation, and
whether certain manipulations of the
public funds in the state treasury