HOOKER
J.
The
defendants are members of an organization called the
'Good Government League,' in the city of Detroit
which professes to have for its object the election of worthy
men to office, and the promotion of good order and honest
administration of city affairs. The plaintiff, having
attended one session of the legislature in the capacity of
representative, was a candidate for re-election. This action
is for libel, alleged to have consisted of three publications
over the names of the defendants. One, for convenience called
the 'White Circular,' was addressed to the voters
and contained in parallel columns the names of several
candidates whom the electors were advised to vote for or
against. The portion applicable to the plaintiff was as
follows:
Vote
For
Harry C. Barter for representative, because he represents all
that is good in his opponent, and does not represent the
objectionable. He is the champion of labor and arbitration.
Against
Henry Eikhoff for representative, because in the last
legislature he championed measures opposed to the moral
interests of the community.
Another,
called the 'Pink Circular,' contained the following:
'Read
and Reflect Before You Vote.
'The
executive council of the Good Government League has
carefully examined the record of each candidate for office.
Where opposing candidates are equally bad or equally good,
we make no recommendations. The following suggestions are
made in the hope that they may aid you in the discharge of
your duty as a citizen, and that righteousness may prevail
in public as well as in private affairs:
'Lou J. Burch is candidate on the Republican
ticket for representative. All friends of morality and
decency are asked to vote against him for the following
reasons: Lou J. Burch is secretary of the Michigan Liquor
Dealers' League. He is editor of the official organ of
that league. He is a self-avowed candidate for the liquor
dealers, and desires to go to the legislature to work in the
interest of the saloon. Lou J. Burch is editor and publisher
of a scurrilous sheet, dated Saturday, but always issued
Sunday morning. In his paper the ministry is ridiculed, women
are maligned, and workers for the cause of righteousness are
defamed. Lou J. Burch is the champion of saloon lawlessness
and of vulgar theaters. Lou J. Burch has offered insult to
every colored man, woman, and child in Detroit. In witness of
these facts, read the following statements from his own
sheet: 'The liquor interests of the city are likely to
have something to say in the convention. Lou J. Burch, editor
of _____, is their candidate.' October 29, 1898.
'Here and there could be seen the burly forms of
chicken-fed preachers, arrayed in long, dark, frock coats,
with hair pompadour, and smile urbane as the harvest moon,
moving about among the female portion of the flock, thinking
what a snap they had. It was a veritable Eden for them, and
it was full of ripe, luscious apples, and no snakes. A
preacher is never so near his heaven as when in charge of a
menless audience or convention.' January 22, 1898.
Speaking editorially of one of Woodward avenue's most
prominent and popular ministers, the sheet says: '* * *
He is either crazy, a fool, or both; and that at best, he is
a weak, narrow-minded bigot, without religion or sense.'
May 7, 1898. Referring to deaconesses and other Christian
workers, Burch's paper says: 'The front row of chairs
was occupied by as interesting a bunch of short-haired,
long-nosed women, of doubtful age, as one would meet in a
long search.' October 1, 1898. Referring to prominent
pastors and church workers who were at police court recently,
Burch's paper says they were 'as fine a looking lot
of spies and sneaks as ever put powder to a safe.'
October 1, 1898. 'And still these awful good and pious
old ladies can never see anything wrong with
hugging and kissing bees and grab-bag bunco games as they are
carried on at the regulation church socials.' October 22,
1898. In commenting upon the discharge in the recorder's
court of a saloonist. Burch's paper says: 'The
outcome of all these cases should be the same as this first
one, and probably will be. Mathews was defeated by Navin &
Sheehan.' October 15, 1898. Burch's paper spoke as
follows concerning the effort to close the Capitol Square
Theater: '* * * Agitating against the Capitol Square
Theater with the intention of closing it, but without
success, for the simple reason that there is no excuse for
such an outrageous procedure.' April 2, 1898. After the
evidence upon which the theater was closed was in,
Burch's paper said: 'As the investigation now stands,
there can be but one result, the complete vindication of Dr.
Campbell.' April 9, 1898. 'Republican politicians
about town are wondering which side of the fence Charlie
Joslyn will be found upon in the Pingree and anti-fight this
year. Pingree bought Charlie with a $5,000 per year job two
years ago, but there is a rumor that the foxy Charlie is
looking for a raise this year.' April 16, 1898.
'Should Stay Away--Negroes must Realize that There is a
Line. The question of the color line has arisen in Detroit
once more. A negro claims that he was discriminated against
at Stock's Riverside Park. This statement is denied,
however. He had no business there. Negroes must realize the
fact that white people will associate with them more or less
in business, but will certainly refuse to be on equal terms
with them socially. Knowing the objection there is for their
company, why does the negro force it? No gentleman would.
White men would be forcibly ejected from any place where they
made themselves half as obnoxious as do most colored people.
It has since transpired that the negro anxious for a case
made no complaint to Mr. Stock, but straightway rushed into
court. Mr. Stock is a very fair-minded gentleman, and is
willing, and always used Detroit citizens liberally, and
there is no doubt they will support him against the arrogance
of Detroit's colored population.' May 28, 1898.
'The ladies of the W. C. T. U. have been having sixteen
fits each all the week over a showbill in which a man is
depicted in the act of choking a woman. If
the man in question has a grip on a half dozen or more
men-women who have been making fools of themselves here in
Detroit for the past year, the picture would be better
appreciated by a large majority of the people.' October
29, 1898. Burch probably desires the repeal of the minor law.
Judge from the following: 'To Fathers and Mothers:
Fathers and mothersof
Michigan, has it ever occurred to you that the doors of the
saloon are barred against your minor sons and daughters,
while they can enter a drug store with seeming propriety, and
sip intoxicating drinks issued from a soda fountain? Which of
the two institutions is the more likely to start innocent
youth on the downward path? Do you think it fair and just to
continually persecute the licensed saloonkeeper, who executes
a large bond guarantying the proper conduct of his place, and
wink at the unlicensed whisky-selling druggist? Pause and
consider.' June 4, 1898. For several weeks Burch's
paper has carried the following in display type: 'Below
are the names of the 39 men who not only voted against this
particular bill, but used their influence against the liquor
interests during the entire session. Don't wait for the
election this fall, but be on hand at the caucuses and
conventions, and see to it that these 39 men get just what
they gave you,--the dump.' September 24, 1898. By your
vote do you desire to ask the state to bear the expenses and
pay the expenses and pay the salary of the saloonkeepers'
lobbyist? That your vote may be effective, we ask all who may
refuse to vote for Burch to concentrate their votes upon Alex
W. Blain. For reasons which we consider equally as good, we
ask you to vote against Henry Eikhoff, candidate for
representative, and for Harry C. Barter.'
There
was a third, but it is unimportant. The declaration alleged
that the effect and meaning of the pink circular was to
charge and impute by inference and intent, upon the
plaintiff, all of the wrongful, indecent, immoral, wicked,
and scandalous acts charged against said Burch. The court
excluded the pink circular as not libelous, and directed a
verdict for the defendant upon the other counts.
The question before us is whether the case should
have been submitted to the jury upon one or both counts. The
first charge is, in substance, that the plaintiff, in his
official capacity of representative, championed measures
opposed to the moral interests of the community. The
undisputed testimony shows that as representative he
introduced, and, to some extent, at least, approved and
supported, measures calculated to change the liquor laws of
the state by permitting sales on legal holidays, and election
days after the close of the polls, and by repealing the act
prohibiting screens in saloons. The court charged the jury
that: 'The conclusion of the article, and the views as
expressed by the defendants in that article, must, of
necessity, under the circumstances of the case, be termed a
deduction from his record in the case. It is a question upon
which men may differ. It probably will be very difficult to
determine with any unanimity as to whether such measures were
against the moral interests of the community. ...
