Englund v. Townley

• Decision Date: 22 July 1919
• Citation: 43 N.D. 118,174 N.W. 755
• Parties: ENGLUND v. TOWNLEY et al.
• Court: North Dakota Supreme Court

43 N.D. 118

174 N.W. 755

ENGLUND

v.TOWNLEY et al.

Supreme Court of North Dakota.

July 22, 1919.

Syllabus by the Court.

Section 9 of the state Constitution grants to every man the right to freely write, speak, and publish his opinion on all subjects, but makes one who abuses the right responsible for such abuse.

Under the laws of this state every person has, subject to the qualifications and restrictions provided by law, the right to protection from defamation by libel or slander, and any person who abuses the privilege of freedom of speech and liberty of the press by maliciously publishing libelous matter of or concerning another is liable to the person libeled for the injury occasioned by the publications.

Any “false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, * * *” is libelous. Comp. Laws 1913, § 4352.

A general demurrer to a complaint in an action for libel admits allegations of falsity, publication, and malice.

For reasons stated in the opinion, it is held that the complaint states a cause of action.

Appeal from District Court, Ward County; Leighton, Judge.

Action by J. A. Englund against A. C. Townley and others. From an order overruling a general demurrer to the complaint, defendants appeal. Affirmed.

Robinson and Grace, JJ., dissenting.

William Lemke, of Fargo, and Nestos & Herigstad, of Minot, for appellants.

McGee & Goss, of Minot, for respondent.

CHRISTIANSON, C. J.

This is an action for libel. The defendants interposed a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendants appeal.

The complaint, the sufficiency of which is the sole question here, in substance charges:

That the plaintiff is an elector and citizen of this state, and a state senator from the Second legislative district, and during the fifteenth legislative session was such state senator. That during said legislative session the defendants conspired together and agreed to and did procure the malicious publication of a false, scandalous, and libelous article in many newspapers of the state, reading as follows:

“Be it further resolved, that it has been brought to our attention that J. A. Englund, now sitting as a senator in the senate body from this district, is not a citizen of the United States, has sworn allegiance to the king of England, having filed on a homestead in Canada, and in the province of Saskatchewan, which is not ‘constitutional,’ and which is not in harmony with the present Constitution, and further that he has again violated our Constitution in accepting, holding, and drawing pay as a deputy bank examiner, and that he has held this office illegally, as the Constitution of North Dakota prohibits state senators from holding such positions, and further that it is not ‘constitutional’ for subjects of the king of England to act as bank examiners in North Dakota; and

Be it further resolved, that we commend the new state bank examiner, J. R. Waters, for suspending the services of said J. A. Englund as deputy bank examiner and discontinuing his salary; and

Be it further resolved, that we, the farmers of the Second legislative district of North Dakota, do hereby ask, request, and demand that the said J. A. Englund immediately resign from the senate and allow his seat to be filled by the proper ‘constitutional’ procedure and by a citizen of the United States and of this district; and,

* * * Be it further resolved, that a copy of these resolutions be sent to Governor Frazier, Attorney General Langer, the secretary of the senate, and also to the said J. A. Englund, and further that a committee be selected at this mass meeting to sign these resolutions and to request the publication of the same in the Fargo Forum, Fargo Courier News, the Non-Partisan Leader, the Minot Daily News, the Devils Lake Journal, and such other publications as may be deemed proper, including the local Kenmare papers.

Signed by the Committee-219 Farmers.”

That the said defendants maliciously caused and procured said false, scandalous, defamatory, and libelous statement to be published in the named newspapers and others, and at a certain meeting held at Kenmare, in this state, on or about January 30, 1917. That the statement was false, and known by all of the defendants to be false, in the following particulars:

(a) That said mass meeting did not unanimously adopt said resolutions, that no committee of volunteers or others to the number of 219 signed said statement, and that no greater number than 10, including the defendants, signed said statement.

(b) That the plaintiff has never sworn allegiance to, and is not and never has been a subject of, the king of England; but that, on the contrary, plaintiff is and always has been a citizen of the United States of America, and an elector of his precinct, county, and state.

(c) That plaintiff has never violated the Constitution of North Dakota in accepting, holding, and drawing pay as a deputy bank examiner, nor illegally held said office of deputy bank examiner, and that the statements and inferences in said article to the contrary are false, and were known to be false by the defendants when made, composed, and published.

That by reason of the publication of said article plaintiff was held forth to public ridicule, obloquy, scandal, and disgrace, and exposed to the hatred, contempt, ridicule, and obloquy of his fellow citizens, friends, neighbors, and constituents, and the people of this state, all to the plaintiff's injury and damage in good name, reputation, and property.

[4] It is elementary that a demurrer admits the truth of all issuable, relevant, material facts well pleaded. 31 Cyc. 333; 6 Ency. Pl. & Pr. 334; 6 Standard Ency. Proc. 943. Hence a general demurrer to a complaint in an action for libel “admits allegations of falsity, and publication, and malice.” 25 Cyc. 469. See, also, 13 Ency. Pl. & Pr. 91, 92. “The demurrer tests the actionable character of the charge, and it will only be sustained where the court can affirmatively say that the publication is incapable of any reasonable construction which will render the words defamatory.” 25 Cyc. 468; McCue v. Equity Co-op. Pub. Co., 167 N. W. 225.

[1] The Constitution of this state provides that:

“Every man may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege. In all civil and criminal trials for libel the truth may be given in evidence, and shall be a sufficient defense when the matter is published with good motives and for justifiable ends; and the jury shall have the same power of giving a general verdict as in other cases; and in all indictments or informations for libels the jury shall have the right to determine the law and the facts under the direction of the court as in other cases.” Const. N. D. § 9.

Few rights guaranteed by the Constitution are more valuable than those of freedom of speech and liberty of the press, which are guaranteed by the section quoted. But freedom does not mean unrestrained license. The fact that a right is guaranteed does not mean that there is also granted a license to abuse that right. Our Constitution expressly recognizes this; for while it guarantees to every man the right to “freely write, speak and publish his opinions on all subjects,” and makes it permissive to publish the truth with good motives and for justifiable ends, it also provides that one who abuses that privilege shall be responsible therefor. Const. N. D. § 9.

[2][3] In conformity with the principles of the Constitution our lawmakers have said that every person has, subject to the qualifications and restrictions provided by law, the right to protection from personal insult and defamation. Section 4350, C. L. 1913. Defamation may be effected by libel or slander. Section 4351, C. L. 1913.

“Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Section 4352, C. L. 1913.

“A privileged communication is one made:

1. In the proper discharge of an official duty.

2. In any legislative or judicial proceeding, or in any other proceeding authorized by law.

3. In a communication without malice to a person interested therein by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information.

4. By a fair and true report without malice of a judicial, legislative or other public official proceeding, or of anything said in the course thereof.

In the cases provided for in subdivisions 3 and 4 of this section malice is not inferred from the communication or publication.”

Sec. 4354, C. L. 1913.

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