Argument for Plaintiff in Error.

choosing whether he will demand a retraction and lose his right to reparation, unless he can prove actual malice, or of failing to give his traducer an opportunity to retract (incidentally so allowing him to mitigate his liability for damage), and of suffering under the odium of having made no attempt to have himself set right, in so far as might be, before the world at large. Odgers on

Slander and Libel, 4, 6.

It will scarcely be contended that the act of demanding a retraction is one which is malum in se, or in fact other than one of which good conscience will approve, yet our legislature has undertaken to impose a heavy penalty upon its performance-no less than the deprivation of a constitutionally guaranteed right. "There is a constitutional inhibition against imposing penalties where no law has been violated or duty neglected." Railway Co. v. Lackey, 78 Ill., 55.

Nor will it do to say that the retraction when made, is reparation, for if it is ever such, which may well be doubted, it clearly is not when special damage can be shown. Hanson v. Krehbiel, 64 L. R. A., 790.

The legislature has undertaken to compel a choice between two perfectly lawful courses of action, with neither of which it has any possible reason to interfere on any grounds which can be suggested, or for which any support of authority will be found.

It is conceded that a constitutional right may be waived, as is said by the court in Publishing Co. v. Butler, supra, but we conceive that no case will

Argument for Plaintiff in Error.

be found where performance of any act provided for by legislation, has been held to constitute such a waiver, where no new right or benefit is conferred thereby. Moore v. Napier, 42 S. E. Rep., 997; Cooley's Const. Lim. (7 ed.), 251; Cleveland v. Construction Co., 67 Ohio St., 197; State v. Hipp, 38 Ohio St., 199.

In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. United States v. Dewitt, 9 Wall., 41; 1 Thayer's Cases on Const. Law, 740.

The principle question which we are discussing has been passed upon by the supreme courts of Michigan, Kansas, Minnesota and North Carolina. Park v. Press Co., 72 Mich., 560, 1 L. R. A., 599; McGee v. Baumgartner, 121 Mich., 287, 80 N. W. Rep., 21; Allen v. Press Co., 40 Minn., 117, 3 L. R. A., 532.

The supreme court of North Carolina in Osborn v. Leach, 135 N. Car., 628, 66 L. R. A., 648, reviews all of the other decisions upon this question and takes its stand upon the same ground as that of Kansas, the statute of the former state being practically identical with that of the latter.

A statute in derogation of the common law is to be strictly construed. Cooley's Const. Lim. (7 ed.), 95.

We have been unable to find authority which supports the view taken by the learned judges of the circuit bench.

On the contrary, perusal of the cases seems to us to show that, as above indicated, malice is averred with rather more than necessary empha

Argument for Defendants in Error.

sis. 32 Cent. Dig., 2139; White v. Nicholls, 3 How., 266; Harris v. Zanone, 93 Cal., 59; Brandt v. Journal Assn., 81 App. Div., 186.

There is another ground upon which the statute may be held to be of no effect without declaring it unconstitutional.

The more modern writers, and many of the courts have recognized that the doctrine that "malice is the gist of actions for defamation is based upon a legal fiction merely, and that malice is not in fact an essential element." Odgers on Libel and Slander, 319, 321; Flood on Libel and Slander, 35; 1 Cooley on Torts (3 ed.), 420; 18 Am. & Eng. Ency. Law (2 ed.), 1002; Hearne v. DeYoung, 132 Cal., 357; Covington v. Roberson, 111 La., 338; Prince v. Daily Eagle, 16 N. Y. Misc., 188.

Messrs. Gage, Wilbur & Wachner, for defendants in error.

We submit that the publication or statement of things done in open court, where some action has been taken by the court, in even an ex-parte judicial proceeding should be, and are in every jurisdiction other than Ohio, subject to the defense of qualified privilege if published or stated fairly and impartially and in good faith and without malice; and we submit the following authorities in support thereof: Curry v. Walter, 1 Esp., 456; King v. Wright, 8 Term. R., 293; Duncan v. Thwaites, 3 B. & C., 556; Lewis v. Levy, 96 Eng. C. L. R., 535; Wason v. Walter, 4 L. R., Q. B., 73; Usill v. Hales, 3 C. P. D., 319; Kimber v.

Argument for Defendants in Error.

Press Assn., 1 Q. B. (1893), 65; Popham v. Pickburn, 7 Hurl. & N., 891; Ryalls v. Leader, L. R., 1 Ex., 298; Odgers on Libel and Slander (1905), 291; Ackerman v. Jones, 37 N. Y. Sup. Ct., 42; Salisbury v. Union & Adv. Co., 45 Hun, 120; McBee v. Fulton, 47 Md., 403; Metcalf v. Pub. Co., 20 R. I., 674; Publishing Co. v. Gamble, 115 Tenn., 663; Beiser v. Publishing Co., 113 Ky., 383; Newell on Defamation, Slander and Libel, 549.

The weight of authority is in favor of extending the privilege to reports of arrests on information gained from papers on file, so long as such reports do not assume the guilt of the accused person and are not otherwise defamatorv. Publishing Co. v. Smith, 149 Fed. Rep., 704; Billit v. Publishing Co., 107 La., 751; Usher v. Severance, 20 Me., 9; 25 Cyc., 408.

The statute is constitutional. The validity of this act has been sustained by the most satisfactory reasoning in Publishing Co. v. Butler, 137 Fed. Rep., 723.

It is believed there is no other statute in force. in the Union like the Ohio one in this particular, namely, in the respect that it leaves to the plaintiff the option whether or not to ask for a retraction, and incur the consequences of such retraction in the way of a limitation of his recovery. Several other states in the Union have, indeed, statutes on this subject of retraction, but in every case these statutes require the plaintiff, before commencing a libel suit, to give notice in some form or manner of the publication of which he intends to complain. Thereupon the defendant is permitted, on making

Opinion of the Court.

retraction in the manner prescribed by such statutes, to limit or abridge the plaintiff's right of recovery.

The statutes on this subject outside of Ohio have sometimes been sustained, even though they leave the plaintiff no option in the matter, on the ground that the retraction deprives him of punitive damages only, and that it is within the discretion of the legislature to permit or refuse punitive damages in any case, since the right to them is not guaranteed by constitution. Comer v. Publishing Co., 44 So. Rep., 673; Osborn v. Leach, 135 N. Car., 628.

We submit, however, that all of these statutes may clearly be distinguished from the Ohio statute, and that the validity of the Ohio statute is satisfactorily supported in the decision of Publishing Co. v. Butler, supra.

DAVIS, J. We regard it as unnecessary to consider whether the demurrer to the first defense stated in the answer of the defendants should have been sustained. The demurrer to the first defense having admitted the facts pleaded for the purposes of the demurrer only, when the demurrer was overruled the issue made by the petition and the answer remained for trial; and therefore the court of common pleas erred in rendering judgment against the plaintiff on the pleadings and the circuit court erred in affirming that judgment. That is the necessary result in the view which we take of the third defense.

The second defense is evidently drawn with the intention of raising the point that the publication