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

of the cup that inebriates. Their con-
dition in the chapel also led one to
such a conclusion"
In England this statement is fair
comment. Davis VS.. Duncan. L. r.
c. P. 1860. In New York no matter
how strongly appearances and con-
duct may justify the inference
charge of intoxication made against
a public officer must be fully proved.
(King VS.. Root, Wend. 114). In
keeping plain the distinction between
courts of some of the states leave the
law very much in the attitude of say
ing to the newspaper-you have full
liberty of free discussion provided,
however, you say nothing that counts.
The Hallam case quotes the SUI
preme court of Ohio Publishing CO.
VS.. Moloney, 500. II; 33 N. E. 921) in
opposition to the liberal doctrine as
follows:
1--WE do not think the doctrine eth
er sound or wholesome. In our opin-
ion a person who enters upon public
office, or becomes a candidate for one,
no more surrenders to. the public his
private character than he does his
course of law. for injury to each, is
secured by the same constitutional
guaranty, and the other is less in
violable than the other. To hold 9TH
erwise would, in our judgment, drive
reputable men from public positions,
and fill their places with others hav-
ing no regard for their reputation,
and thus defeat the purpose of the
rule commended for, and OVerturn the
reason upon which it is sought to sus-
tain it,
Manifestly a candidate must sur
render to public scrutiny and discus
sion so much of his private character
as affects his fitness for office, and
the liberal rule requires no more. But
in measuring the extent of a candi-
dates profert of character it should
always be remembered that the peo-
pie have good authority for believing
that grapes do not grow on thornS nor
figs on thistles. The other arguments
furnished by the Ohio quotation have
already been considered, The Hallam
case contains nothing further worthy
of note.
Another decision much approved.
frequently quoted and confidently
proposed for consideration by the
plaintiff here is that in the case of
row rule is stated clearly and author
tiles for it are cited. The only reas-
ons urged against the rival rule are
the old ones, sensitive and honorable
men should eSchew politics. yellow
journalism would run riot, candidates
would be exposed to the malignity of
party strife-and this new one:
1.-The only safe evidence of a mans
intentions are his acts, and If he ac-
cuses another of crime, he must
conclusively be presumed to have in
tended to injury him.
The doctrines of the common law
relating to malice seem to the Della
ware court, also, to be of the utmost
Importance in finding out what the
true rule of privilege ought to be
(Star Publishing Co. VS.. Donahoe. -
Del. =. 5 L. R. A. $500
With all due Difference to Upton VS..
Hume the remarks quoted read as if
they had been written in the midst of
the fog of f1ctions, differences and
presumptions which enshroud the
law of libel Facts and the truth
never have been much in favor in that
branch of the law. It's early use as a
weapon and shield of caste and arbi-
trary power would have been i'm
paired. Suppose a serious charge to
be made. By fiction II is presumed
to be false. BY fiction malice is in
ferred from the fiction of falsity. By
a fiction damages are assumed as the
consequence of the fictions of malice
presumed and until recent times the
offer to show the truth of the charge
as having some bearing upon liability
was a sacrilegious insult to this beau
tiful and symmetrical fabric of fic-
ton. Then a defendant was made to
suffer additional smart for venturing
to obtrude the truth as a defense, if,
although his proof were abundant, he
barely failed, in the opinion of the
jury, to make out a preponderance.
It is, however, in the field of malice,
where the rule stated in the quotation
lies, that truth and fact are most
superfiuous. In the first place it is
said that malice is the gist of the ac-
ton for libel. This is pure fiction. 1t
is not true. The plaintiff makes
complete case when he shows the
publication of matter from which
damage may be inferred The ac-
tual fact may be that no malice
exists or could be proved. Frequently
libels are published with the best of
motives, or perhaps mistakenly or
inadvertently but with an utter alb
covers just the same. Therefore, ''the
gist of the action may be taken out
of the case" This is done by an
other fiction, 1t is said that of course
known to fact or experience to which
may apply, but it is just a legal ex-
preston to denote want of legal ex-
cuse. In this state a statutory
definition of libel making malice an
essential ingredient as at the common
law compels this court to say that
the international publication of
libelous matter implies malice"
whatever the motive in fact may be.
(The State vs. Clyne SO Kan. 81 So,
a fiction was invented to meet an I'M
necessary fiction which became
troublesome, and the courts go on
gravely ascending the hill for the
purpose of descending, meanwhile
filling the books with scholastic dis
QUESTIONS, verbal subtleties and refined
distinctions about malice in law, mall
ice in fact, express malice, implied
malice, etc, etc. Now what is the
fact? Instead of malice being the
gist of the section it may come into
a libel case and be of Importance in
two events only, to affect damages and
to overcome a defense of privileges.
If the occasion be absolutely
privileged there can be no recovery.
If it be cOnditionally privileged the
plaintiff must prove malice, actual
evil-mindedness, or fail. When it
comes to this proof there is no pre-
sumption, absolute or otherwise, at