Opinion of the Court.

it is asserted shall have sustained some detriment by reason of the conduct or representation of him against whom the estoppel is invoked. The express averment of this petition shows that the county parted with nothing in consequence of Vail's temporary recognition of the validity of the salary act. On the contrary, it has profited thereby to the extent of the excess of the fees collected by him during his second incumbency over the salary received by him during that time. The county

sustains no loss whatever by reason of Vail's later assertion of the invalidity of the salary act, which, it is conceded, he might have insisted upon from the beginning.

Nor can any inference unfavorable to Vail be drawn from waiver or acquiescence. What he waived was his right to the costs above salary during his second incumbency and until the salary act was declared unconstitutional, and his acquiescence was in the receipt of such surplus fees during the same time by the county. The fees to which he thus waived his right thereby became blended with the funds of the public, but as to those which are the subject of controversy here the county occupies precisely the same position it would have occupied if the unconstitutional act had not been passed, or the defendant had challenged it immediately upon its passage. There appears to be no reason why the defendant should be deemed to have waived that which he did not waive or to have acquiesced in that in which he did not acquiesce. Judgment affirmed.

SPEAR, C. J., DAVIS. PRICE, JOHNSON and DONAHUE, JJ., concur.

Statement of the Case.

BYERS V. THE MERIDIAN PRINTING COMPANY ET AL.

Publication of pleadings, etc.-Not privileged, when-Presumption as to malice-Act of April 16, 1900, 94 O. L., 295, unconstitutional.

1. The publication of pleadings or papers which have been placed on the files of a court, when the court has not yet acted thereon, is not privileged, even though the publication is made in good faith and without malice. (The Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549, approved and followed.)

2. The amendment and supplement to Section 5094, Revised Statutes of Ohio, passed April 16, 1900, 94 O. L., 295, changing the presumption and burden of proof as to malice, is unconstitutional and void.

(No. 12425-Decided June 30, 1911.)

ERROR to the Circuit Court of Cuyahoga county.

The plaintiff in error was plaintiff in the court of common pleas in which he filed his petition alleging that the defendants had published in a newspaper owned and controlled by them, viz., The Cleveland News, a libelous statement which was in substance that warrants for the arrest of the plaintiff on the charge of perjury together with warrants for other persons for other felonious crimes had been sworn out before a justice of the peace by one L. A. Damschroeder. It was further stated in said article that Damschroeder asserts that the plaintiff committed perjury in swearing to the affidavit by which suit was brought, etc. The plaintiff's petition further alleged that he is an attorney qualified to practice in the courts and that he is the person referred to in this article and that so far as it refers to the plaintiff the

Statement of the Case.

language complained of is viciously false and untrue and is calculated to injure the plaintiff in his reputation as a man, as a citizen, and in the practice of his profession and to bring him into public scandal, infamy and disgrace. He charges that he has been disgraced and humiliated and his business has been injured thereby, for all of which he claims damages.

The defendants made a joint answer setting up three defenses. The first defense after admitting the formal allegations of the petition and the publication of the article complained of, denies all and singular the averments of fact in said amended petition contained saving and excepting the averments hereinbefore expressly admitted to be true. In their second defense the defendants set forth a certain affidavit made by one Lawrence A. Damschroeder charging the plaintiff with perjury and setting forth a warrant alleged to have been issued by the justice of the peace with whom said affidavit was filed. And they further say that they thereupon caused the publication complained of to be made and that the same is a fair and accurate. report of the said proceedings had before the said justice of the peace. Further answering, the defendants say that they made said publication in good faith, relying on the said affidavit and warrant and said proceedings before the said justice of the peace, and they deny that in making said publication they were actuated by any malice whatsoever toward the plaintiff. For their third defense the defendants say that a reporter representing the defendant, The Meridian Printing Company, went to the office of the justice of the

Statement of the Case.

peace referred to in said publication and made inquiry as to whether or not a warrant had in fact been issued for the arrest of the plaintiff. That the said justice informed the reporter that the warrant had been issued and that the reporter thereupon requested to see the files in said case and the same were exhibited to him and examined by him and he found in the file envelope an affidavit charging the plaintiff with perjury and otherwise making charges against him as set forth in said publication. That the reporter also found in said file envelope a warrant for the arrest of the plaintiff duly signed by the justice of the peace, and that thereupon acting upon such examination and information he prepared the publication complained of which the defendants thereupon caused to be published. Defendants further alleged that at the time of the publication they believed and had reasonable grounds to believe that the statements contained in said publication were true; that they made the same in good faith and believed it to be by reason of the aforesaid inquiries a fair and accurate report of the proceedings had before the said justice of the peace. They further say as a part of said third defense that thereafter the plaintiff demanded that the defendants make retraction of the matter contained in said publication so far as it related to him the said plaintiff and that in response to this demand for a retraction and acting on information from the plaintiff and statements made by him without further investigation and solely with desire to set right a possible wrong which they may have done the plaintiff they promptly published a full and complete retraction

Argument for Plaintiff in Error.

of the same in as public a manner and as conspicuous a place as that in which they had made the original publication. A copy of this retraction is given. And they deny further that in making the said publication they were actuated by any malice whatever toward the plaintiff.

Demurrers to each one of the separate defenses filed by the plaintiff were overruled by the common pleas court. The plaintiff not desiring to plead further final judgment was entered for the defendants. To this judgment the plaintiff filed his petition in error in the circuit court which affirmed the judgment of the court of common pleas and this proceeding in error is prosecuted to reverse the judgment of both the lower courts.

Messrs. Friebolin & Byers and Mr. P. L. A. Leighley, for plaintiff in error.

Under the doctrine that "malice is the gist,' that is, an essential ingredient of the cause of action for defamation, it appears that the purpose and effect of this statute is to bar a recovery for injury to reputation, no matter what the damage sustained, where a retraction has been demanded, and the demand complied with, unless malice is proven, and then of all but the actual or special damage alleged in the petition. Publishing Co. v. Butler, 137 Fed. Rep., 727.

Now, let us see whether our statute (5094) is in accord with the guaranties given by the fundamental law in the Fourteenth Amendment to the Federal Constitution. Its effect, it will be seen, is to impose upon the person injured the necessity of