McClung v. Pulitzer Publishing Company
| Decision Date | 07 July 1919 |
| Citation | 214 S.W. 193,279 Mo. 370 |
| Parties | DICKERSON C. McCLUNG v. PULITZER PUBLISHING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Callaway Circuit Court. -- Hon. David H. Harris, Judge.
Reversed.
Judson Green & Henry for appellant.
(1) Neither the Circuit Court of Cole County nor the Circuit Court of Callaway County ever had any jurisdiction over this defendant, because Sec. 1755, R. S. 1909, authorizing plaintiffs to sue in the county of their residence in actions for libel against corporate publishers, although the defendant resides in and must be served in another county, is unconstitutional, being special or class legislation. It is exactly the same kind of statute as old Section 1754, which has been held unconstitutional by this court as applied to corporate publishers of libels. It is also unconstitutional because it denies to such corporations the equal protection of the law. Houston v. Pulitzer Pub. Co., 249 Mo 337, 339; Julian v. Kansas City Star, 209 Mo. 35; Davidson v. Pulitzer Pub. Co., 178 S.W. 68. (a) This statute is unconstitutional because it unreasonably discriminates between corporate publishers of libels and all other corporations. Cases supra. (b) The statute is also unconstitutional as arbitrarily discriminating between corporations and individuals. See Cases supra; Santa Clara County v. Southern Pacific Ry., 118 U.S. 118; Gulf Ry. Co. v. Ellis, 165 U.S. 150; Barbiere v Connolly, 113 U.S. 558; State v. Loomis, 115 Mo. 307; Wyatt v. Ashbrook, 154 Mo. 375; Russell v. Croy, 164 Mo. 97; State ex rel. v. Ry. Co., 195 Mo. 228. (c) There is no reasonable basis of classification warranting discrimination between individual and corporate publishers. State ex rel. Wyatt v. Ashbrook, 154 Mo. 375. (2) The defendant's demurrer to the evidence at the close of the case should have been sustained and the judgment should therefore be reversed. The articles complained of were both editorial discussions of a matter of the highest public interest and importance and every statement of fact in the first article was shown to be true by undisputed evidence. (a) The expression of an opinion in a general public discussion of the management of the penitentiary is not libelous or defamatory, but it is privileged in law, under the facts in evidence. Walsh v. Pulitzer Pub. Co., 250 Mo. 142; Cook v. Pulitzer Pub. Co., 241 Mo. 326; Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Gandia v. Petttingill, 222 U.S. 452, 457; Branch v. Knapp & Co., 222 Mo. 532; Diener v. Star-Chronicle, 230 Mo. 613; Diener v. Star-Chronicle, 232 Mo. 416; Davis v. Shepstone, 11 App. Cas. 190; Gott v. Pulsifer, 122 Mass. 235; Duffy v. Evening Post, 96 N.Y.S. 629. (b) Comment and criticism includes the right to draw incorrect inferences and to state unjust opinions. Cook v. Pulitzer Pub. Co., 241 Mo. 326; Diener v. Star-Chronicle, 232 Mo. 417; Howarth v. Barlow, 113 A.D. (N.Y.) 258; United States v Smith, 173 F. 240. (c) That it is for the court, and not for the jury, to construe the language complained of in an action for libel where the facts are not in dispute, and to determine whether it is libelous, has been held in many recent decisions of our Supreme Court. Cook v. Pulitzer Pub. Co., 241 Mo. 326; Walsh v. Pulitzer Pub. Co., 250 Mo. 142; Diener v. Star-Chronicle, 230 Mo. 613; Diener v. Star-Chronicle, 232 Mo. 416; Branch v. Knapp & Co., 222 Mo. 532. (d) That a newspaper has the right to make publication concerning and to comment upon matters of public interest and that the doctrine of privilege under the law by libel permits an honest censorship by the newspaper press over the conduct of officials in the management and conduct of public affairs is well established. Cook v. Publishing Company, 241 Mo. 354, 357; O'Rourke v. Lewiston Daily Sun Pub. Co., 89 Me. 310; Branch v. Knapp & Company, 222 Mo. 603; Coleman v. MacLennan, 78 Kas. 711; Gandia v. Pettingill, 222 U.S. 457; Cowan v. Fairbrother, 118 N.C. 418; Bearce v. Bass, 88 Me. 521; Schull v. Hopkins, 26 S.D. 21. (e) The record fails to establish that the comment contained in the publication was inspired by malice, or that the facts upon which it is based are false.
Ed E. Yates, A. T. Dumm, W. C. Irwin and J. R. Baker for respondent.
(1) "Courts will approach the question with great caution examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed in their judgment, beyond reasonable doubt." State ex rel. v. Fort, 210 Mo. 526. (2) This venue section of our statute has never been directly before the Supreme Court. It has been referred to in cases where its validity was not involved, and it is fair to remember that all that has been said with reference to the statute is in its favor. Cook v. Globe Print. Co., 227 Mo. 522. (3) The Legislature in enacting this statute, Sec. 1755, R. S. 1909, doubtless had in mind the inequalities affecting plaintiff, as well as a corporate defendant, in the matter of libels published. If it was unfair to drag a corporate defendant to any county of plaintiff's choosing, by the same token it is equally unfair to require a citizen of the interior of the State to go to the habitat of a newspaper for his redress. And because the great newspapers, those of largest circulation and influence and therefore possessing the greatest power to injure, are published in the cities and by corporations, the Legislature very properly and without doing violence to law, placed them in a single classification. The doctrine announced by Valliant, J., in the minority opinion in the Julian Case, 209 Mo. 67, that etc., is the law of the land, as announced repeatedly by the United States Supreme Court, as shown by the cases cited. (4) That powers may be conferred upon or withheld from a corporation without doing violence to constitutional mandate is sound, wholesome doctrine. Beva College v. Ky., 211 U.S. 45; Hammond Pack. Co. v. Arkansas, 212 U.S. 322; Jenkins v. Cor. Mut., 171 Mo. 384. (5) The fact of the great power of the corporate libeler for harm, since such possess practically all of the great agencies for this work, suggests the right of classification; and since a corporation can only exist by grace, it has no legal right to complain that it cannot do the things or enjoy the rights that an individual may any more than an individual may complain under the Constitution that he cannot do the things or enjoy the privileges and immunities which may lawfully be done or enjoyed by a corporation. State ex rel. v. Fort, 210 Mo. 512. (6) Suits against insurance companies under the general corporation laws of this State have been brought in the county where the cause of action accrued, practically ever since grass grew and water ran in Missouri; and this without reference to the local residence of the company. Individual insurers cannot be so sued unless residents of the county where the cause of action accrued. No good lawyer in wildest fancy has ever thought that this corporation law furnishes a constitutional objection or that such might be successfully urged by an insurance company to an action against it where it did not reside and had no agent. We have a law in Missouri which permits insurance companies even after they have withdrawn from the State and ceased to do business therein, to be sued by taking services on the insurance superintendent on outstanding policies. Of course, you could not do this in the case of an individual insurer (and there are many such in these days of individual underwriters), but who would stand up and affirm that the law referred to is unconstitutional as being discriminatory? It will be a wise man, indeed, who can maintain such a position. Such laws are valid for two reasons: (a) Corporations being children of the law are ipso facto subject to such burdens as the law-making power may from time to time impose. He who accepts favors must expect to bear burdens. (b) The possession of a peculiar power to do mischief possessed by a given agency, suggests of itself, the right to legislate with reference to that particular agency. To illustrate: We have special legislation against railways for setting out fire, yet railway engines are not the only offenders along this line. The traction engine owned by an individual may do it, and frequently does, yet we have special laws and special rules of evidence created by statute affecting the railway alone. Why? Because the railway has common carrier rights and in addition thereto, great power for harm in the matter suggested; so when the corporate newspaper by legislative grant becomes a common carrier of news for hire, it is proper classification and violative of no constitutional provision to say to it: You may not libel the citizen and drag him to your home, the seat of your greatest influence and power for redress, but if he so chooses he may make his vindication in the place where he resides and where the humiliation and injury suffered is likely to be greatest. Hatcher v. So. Ry. Co., 68 So. 55; Allen v. Smith, 95 N.E. 831. (6) "Legislation which merely affects the remedy for or against a corporation is not unconstitutional if it does not take away all remedy, or so reduce it as to have practically that effect." 1 Clark & Marshall on Private Corporations, pp, 679, 695, and p. 678, sec. 268. If a statute assailed under the equal protection provision of the Federal and State constitutions affects merely the venue of the cause, the place where it may be...
To continue reading
Request your trial