Merrey v. Guardian Printing & Publ'g Co.

• Decision Date: 18 November 1909
• Citation: 74 A. 464,79 N.J.L. 177
• Parties: MERREY v. GUARDIAN PRINTING & PUBLISHING CO. et al.
• Court: New Jersey Supreme Court

74 A. 464

79 N.J.L. 177

MERREY

v. GUARDIAN PRINTING & PUBLISHING CO. et al.

Supreme Court of New Jersey.

Nov. 18, 1909.

(Syllabus by the Court.)

Error to Circuit Court, Passaic County.

Action by Edward F. Merrey against the Guardian Printing & Publishing Company and another. Judgment for plaintiff, and defendants bring error. Reversed.

This is an action for libel, brought by Edward F. Merrey, who was city counsel of the city of Paterson, against the Guardian Printing & Publishing Company and Clarence H. Baxter, owners and publishers of the newspaper called the Paterson Guardian. The declaration alleged that the plaintiff, being such city counsel, advised the board of aldermen at its request, concerning the authority vested in such board by law, to revoke a license to sell liquors in said city because of the violation by the holder thereof of such law in selling liquors on Sunday, that the said board had no authority to revoke a license unless the license was in force at the time of such revocation, and that on the 9th of May, 1908, the defendants falsely and maliciously composed and published of and concerning the plaintiff in said newspaper a false and defamatory libel, as follows: "As Others see us. In view of the recent efforts made by Manor Mcbride and other citizens to regain some of the prestige which Paterson has lost, it is not pleasant to admit the justice of the criticisms made in state papers on the actions of the aldermen and city counsel in miking it impossible to punish violation of the excise lairs. While the taint of anarchy was a blight upon this city, it does, not begin to equal in evil results the knowledge that our city officials, the men sworn to uphold the law, are the very ones to use the power of office to protect lawbreakers and make It Impossible, by evasion and legal quibble, to punish open violation of the law. That hurts Paterson most, far more than anarchy, because it cannot be truthfully contradicted. The recent action of the board of aldermen and city counsel has brought forth caustic comment that does this city incalculable harm—because it lgtrue. The following extract from two of the leading papers of the state will scrve to show how Paterson's reputation is being Wasted by the acts of its own officials." And, in the second count of said declaration, alleged the publication concerning the plaintiff on the 10th day of May, 1908, of another article, headed: "Retraction is Refused. Guardian Printing and Publishing Company and Clarence H. Baxter. Gentlemen: In the Guardian of Saturday evening, May 9, 1908, there appeared the following libel of and concerning Edward F. Merrey, the present city counsel of the city of Paterson: [Here follows a copy of the article as above set forth.] I demand on behalf of Mr. Merrey that, so far as this publication affects him, you retract this libelous charge in as public a manner as that in which it was made. William B. Gourley, Attorney for Edward F. Merrey."

Then follow the reasons, given by the newspaper, for refusing a retraction, the following extracts from which are set out to show the parts of said second article which were justified in the plea of the defendants as hereinafter set forth: "The Guardian's criticism of the board of aldermen and the city counsel was confined to their official acts in connection with the administration of the excise laws in this city; acts which led reputable newspapers in other cities to point the finger of scorn at Paterson, and deride it as a community where delay and evasion by the board of aldermen, and legal quibble by the city counsel, afforded official protection to excise offenders, and made it impossible to punish them for open violation of the law. The Guardiau's criticism of the city counsel was based upon an official opinion given by him to the board of aldermen. City Counsel Merrey owes his election to the board of aldermen, upon which rests responsibility for the proper administration of the excise laws in this city. The enactment by the Legislature, which is known as the Bishop's law, made it imperative for the aldermen to pass an ordinance to require the removal of all screens in saloons. Responsibility for enforcing this ordinance and other provisions of the excise law rests in the police department. Officers detailed to enforce the law were able to secure drinks in several places on Sunday. Chief Bimson made complaint before the board of aldermen and offered evidence that was conclusive proof of guilt. After a long delay, a date was set for trial in April, but the cases were postponed. Trial was finally set for early in May, several weeks after the offenses had been committed. The offenders were permitted to go without punishment. The aldermen justified their remarkable action through an official opinion given by City Counsel Merrey, who held that these men could not be punished by taking their licenses away, as the excise law requires, because the license period within which the offense was committed had expired a few days previously. They could be granted new licenses, but could not be punished for violation of the law under the old licenses. Because of that opinion and the subsequent action of the board of nldermen, Paterson was placed in the position of being unable to enforce the excise laws through its own officials. This was made the subject of much unfavorable comment in metropolitan and state newspapers, and Paterson was placed in a bad light before the outside world."

The defendants pleaded: First, not guilty; secondly, in regard to the article "As Others see us," as to the words above italicized in said article, that the same were true and were composed and printed with good motives and for justifiable ends; and for a third plea as to the publication of the 10th of May, 1908, that the facts stated in that part of the article which is hereinabove set forth were true and were lawfully composed and printed with good motives and for justifiable ends; and for a further plea the defendants interposed as to both of said articles that they were fair and bona fide comment upon the conduct of the plaintiff in his public character and office as city counsel, and were so printed without any malicious motive and for the public interest and benefit in the usual course of business and duty of the defendant as a publisher of a newspaper and as a public journalist and editor of the paper, and are therefore privileged. At the trial it was admitted that the defendants wrote and published the articles.

The plaintiff also produced evidence that he was informed about March or April, 1908, by the city clerk, that three excise complaints had been filed by the chief of police. They had not been prepared in the city counsel's department. Plaintiff looked at them and told the city attorney to take charge of them. At the meeting of the board of aldermen on April 6th, a resolution was prepared by the city attorney directing the parties mentioned in these complaints to show cause on April 27th why their licenses should not be revoked. On that date the city attorney telephoned to the plaintiff...