State v. A. M. Wilson et al. 1, 137 Wash. 125 (Pa. 1925)

Holcomb, J.

The first named respondent and thirteen others were informed against by the prosecuting attorney in and for Cowlitz county, charged with crim

inal libel. A demurrer to the information was sustained, upon which the prosecution was dismissed and this appeal results.

The information charges the offense as follows:

Name Post Office Address

articles were' read by various persons in said city, county, and state; and they tbe said defendants well knew at the time of signing said document and at tbe time of filing same as aforesaid that tbe charges therein stated were false and untrue.

It will be observed that tbe information alleges that respondents signed their names maliciously to tbe document denominated a recall petition; that they well knew at tbe time of signing tbe same, and at tbe time of filing tbe same, that tbe charges therein stated were false and untrue; that tbe writing tended to expose J. E. Stone in bis capacity as a private citizen, in bis official capacity as city attorney of Kelso, of which be was then and there tbe duly elected, qualified acting city attorney; and in bis professional capacity as a practicing attorney at law to hatred, contempt, ridicule and obloquy, and to deprive him of tbe benefit of public confidence and social intercourse, etc.

Tbe statute upon which tbe information is based defining criminal libel, § 2424, Kem. Comp. Stat., is as follows:

tion or association of persons in Ms or their business or occupation, shall be libel. ’ ’

[1] The defamation set forth in the information was in a written instrument. It is alleged to be false and malicious. Its language is such as to expose “any living person to hatred, ridicule, contempt or obloquy, and to deprive Mm of the benefit of public confidence and social intercourse. ’ ’ The natural effect of the language is to injure a person in his business or occupation.

There is no doubt, therefore, that the defamation set forth in the information is libelous under the criminal statute above quoted, and actionable, unless it is privileged.

[2] Respondents contend that the matter complained of is absolutely privileged. They cite cases where we have held that allegations in judicial proceedings either in pleadings or affidavits are absolutely privileged, and exempt the utterer thereof from civil libel. Abbott v. National Bank of Commerce, 20 Wash. 552, 56 Pac. 376; Bass v. Matthews, 69 Wash. 214, 124 Pac. 384; Miller v. Gust, 71 Wash. 139, 127 Pac. 845; Houghton v. Humphries, 85 Wash. 50, 147 Pac. 641, L. R. A. 1915E 1051.

On the other hand, respondents also contend that the matter involved was alleged in a recall petition which we have held to be purely political in its nature; Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367; that therefore it is determinable only at the polls.

We have always held that allegations contained in pleadings filed in a court of competent jurisdiction are absolutely privileged where they are relevant and pertinent to the case, regardless of their falsity or maliciousness. Abbott v. National Bank of Commerce, supra, and Miller v. Gust, supra. We have also held in

Houghton v. Humphries, supra, that a judge of a court is absolutely exempt from liability in civil damages for words of a slanderous nature spoken by him of one of the attorneys in the course of a judicial proceeding over which he was presiding.

We also held in Bass v. Matthews, supra, that a church committee^ report upon investigation of a minister made according to the established rules of the church of which the minister was a member, was absolutely privileged, whether libelous per se or not, when on its face it showed that it was made in good faith.

It is an ancient rule, followed almost universally and recognized by this court in the foregoing cases, that, when exemption from liability for the use of slanderous words is sought to be invoked by a private person, or uttered in the course of a judicial proceeding, such exemption is qualified in that the words must be relevant to the proceeding in which they are spoken in order to exempt the one using them from liability for damages flowing from their slanderous effeet. Houghton v. Humphries, supra.

But we have also held that, while at common law, of which the statute is merely declaratory as to the defense to an action for civil damages, the truth of a libelous charge, though no defense in a criminal prosecution for libel, was usually a complete defense in a civil action for damages. State v. Sefrit, 82 Wash. 520, 144 Pac. 725; Haynes v. Spokane Chronicle Pub. Co., 11 Wash. 503, 39 Pac. 969; Leghorn v. Review Pub. Co., 31 Wash. 627, 72 Pac. 485; Wilson v. Sun Pub. Co., 85 Wash. 503, 148 Pac. 774, Ann. Cas. 1917B 442.

In the last cited case, we also approved the classification in Newell on Slander & Libel (2d ed.), p. 576, as

to what falls within the rule of qualified privilege, and was not therefore libelous per se, as follows:

The last class was that involved in Bass v. Matthews, supra.

Respondents assert that the matter involved here is absolutely privileged because it is a matter concerning the administration of the government (of the municipality) and pertaining to the administration- of public justice, and relating to the management of public institutions and local authorities.

It must be remembered that we classified the above matters as qualifiedly privileged, not absolutely privileged. When, therefore, in any matters except those pertaining to the administration of justice, where, if they fall within the matters referred to in Abbott v. National Banlc of Commerce, supra, and Miller v. Gust, supra, they may constitute absolute exemption from civil liability, they may nevertheless only be conditionally privileged if violative of any criminal statute. 37 C. J., pp. 142, 143, 144; State v. Sefrit, supra.

In a civil action, if the matter published was libelous per se, it was not incumbent upon the pleaders thereof to allege untruth. That would be a matter of defense, which to be available, must be alleged and proved as such. Wilson v. Sun Pub. Co., supra. This being a criminal prosecution, malice is a material element, and may be inferred from the necessary tendency of the

articles, since the statutes so declare. Wilson v. Sun Pub. Co., supra. In a civil action malice is not an essential element. In a criminal action it is. In this case it is expressly alleged.

There is no doubt in our minds that the information charged an offense under the statute above set. forth as to any writing other than possibly such writing as was here alleged.

Respondents insist that, since the recall proceeding is a purely political proceeding authorized by the constitutional amendment, Article I, §§ 33 and 34, amendment 8, and also under § 19 of Article I of the original constitution which provides that “all elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage,” that the statements contained in the recall petition complained of are absolutely privileged under the constitution as much as such statements would be in a judicial proceeding to remove an officer, and that the truth or falsity thereof can only be determined by the recall election which was petitioned for.

It is argued that, if this criminal prosecution be sustained, the recall election is effectually prevented, and the effect will be to authorize such criminal prosecution and prevent the holding of recall elections.

[3] The provisions of § 19, Article I of the constitution, that all elections shall be free and equal, etc., cannot prevent the application of criminal laws to the violation of criminal statutes. The provision does not mean that voters may go to the polls at any time and vote on any question they see fit, but only at the stated times provided by the statutes relating to elections. Neither does it mean that voters, in the free exercise of the right of suffrage, may vote as many

times upon any one question or candidacy as they see fit; although a literal construction of the language of § 19 might lead to that. It does not mean that elections and voters may not be regulated and properly controlled. It does not mean that voters may not be prosecuted for violation of any provision of the election laws which they may have violated either before or after such elections. It does not mean that the ordinary penal laws are set aside in favor of the recall laws or the free exercise of the suffrage. Nor, in our opinion, does it mean that voters are given carte blame the privilege of making any allegations or statements concerning any officer sought to be recalled regardless of the truth or probable truth thereof, and wholly out of malice on the part of the malicious persons as to such officers.

The provisions for recall elections and for the freedom of elections, and the free exercise of the right of suffrage, are similar to the provisions preserving the right of free speech. The federal and state constitutions (Washington constitution, Art. I, §5), provide that, every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. But courts have uniformly agreed that freedom of speech does not grant absolute immunity from the penalty of slandering or libeling another.

This court has held, in Byrne v. Funk, 38 Wash. 506, 80 Pac. 772, 3 Ann. Cas. 647, that the official acts of public officials may lawfully be made the subject of fair comment and criticism, not only by the press but by members of the public. But the prevailing rule is that charges imputing moral delinquency to a public officer cannot, if false, be privileged, though made in good faith, and this though the charge relates to an act of the officer in the discharge of his official duties.

It was further held in that case that whether the writing came within the qualified privilege as to such defamatory statements concerning a public officer was for the jury to determine.

We are firmly convinced that the defamatory matter set forth in the information was only qualifiedly privileged; that, it being alleged to have been false and maliciously uttered, it is within the proscription of § 2424, Rem. Comp. Stat.; that it is not absolutely privileged as contended by respondents, and is not protected by having been filed in recall proceedings for the recall of the defamed person.

The judgment is reversed with instructions to overrule the demurrer, reinstate the cause, and proceed in conformity herewith.

Tolman, C. J., Askren, Main, and Fullerton, JJ., concur.