our workmen's compensation act the decisions of its administrative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when, in the absence of fraud, there appears in the record a legal basis for its findings, which are made 'conclusive' when said board acts

within the scope of its authority." The Michigan court was not called upon to hold in precise support of the proposition I have advanced, but it approaches such a holding very closely.

Michigan Compensation Act. The compensation act of the State of Michigan13 provides that: "The findings of fact made by said industrial accident board acting within its powers shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of said 'industrial accident board.'" The act also provides that awards are to be made by committees on arbitration and approved by the industrial accident board.

In Peck v. Whittlesberger, supra, there was claim for compensation for the death of a workman. It was shown that deceased left his work at the regular quitting time. His daughter testified that he arrived home a little later than usual and showed her an injury to his hand near the thumb. He told her he chopped up a box and ran a nail into his thumb. He worked the next day until 4 p. m. The other men at work saw and heard nothing of the accident nor observed anything unusual in his work or conduct. He did not return to work afterwards. A doctor was called in five days afterwards and he proved the death from injury in the hand. This was all of the evidence. Upon certiorari to the board its award for compensation was sustained. It was claimed there was no competent evi

The court, after saying that the rule against hearsay evidence is more than an artificial technicality of law, goes on to give instances of hearsay upon hearsay and holds that this is what was really meant, but the daughter's evidence was not deemed this kind of hearsay.

The court said: “We do not conceive that in reviewing decisions of this board all technical rules of law, often made imperative by precedent in reviewing the action of regularly constituted trial courts, should be applied. The board is purely a creature of statute, endowed with varied and mixed functions. Primarily it is an administrative body, created by the act to carry its provisions into effect. Supplemental to this, in order that it may more efficiently administer the law, it is vested with quasijudicial powers, plenary within the limits fixed by the statute. *** Its findings of facts upon bearings are conclusive, and cannot be reviewed, except for fraud, provided necessarily, that any competent legal evidence is produced from which such facts may be found." Nowhere in the opinion is it claimed that anyone knew how the accident occurred except as decedent told him. It is stated that report was made of the accident by the employer and it is said that: "Such reports from the employer where all sources of information are at his command when the reports are made and he has had ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, as prima facie evidence that such accident and injury occurred as reported." It seems to have been on this report made by the employer which was not impeached, that this case was decided.

Nevertheless, the decision shows, that these tribunals should not be treated, in their decisions as regularly constituted courts of law in trials are treated, Tech

(13) 2 How. Stat. (2d Ed.) § 3339 et seq.

evidence will not be applied.

Massachusetts Compensation Law.-In Massachusetts it was contended that a stat

ute providing for the admissibility of declarations of a deceased person was not applicable to any tribunal but a court and, therefore, such hearsay evidence was not competent evidence to sustain a claim under the compensation law of that state.1* The court overruled this contention, holding that the Industrial Accident Board came under the word "court" in its broader significance.

Here it is not apparent that the question I am here considering was necessary to be passed upon. The ruling in this case only shows, that all that might be claimed for a court in applying the rules of evidence could be claimed in a case under the compensation act. Whether or not more could be claimed, so far as technical rules are a hindrance, was not decided.

California Compensation Act.—In three states, California, New York and Michigan, the feature of which I am here speaking, came before the courts in a very direct way. In Peck v. Whittlesberger, supra, the court uses language which shows that it does not recognize any intent by the legislature that findings of the commission should depend upon evidence of a strictly technical character, but the ruling was, in effect, that the employer was by making report which in itself depended on hearsay evidence, estopped to urge any error in the commission relying on like evidence. I think, that the federal Supreme Court intimates, as I have shown by authority, that findings

by interstate commerce commissions need not depend on evidence such as would be required by a judicial tribunal.

In the California and New York cases,

however, the question of the admissibility vel non of hearsay evidence is squarely presented and decided.

In a California case15 the statute is shown to provide that hearings before the commission "shall be governed by this act

and by the rules of practice and procedure adopted by the commission and in the conduct thereof neither the commission nor any member thereof nor any referee appointed thereby shall be bound by the technical rules of evidence. No informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award or regulation made, approved or confirmed by the commission."

The court does not speak of this sort of tribunal as the Michigan court does, calling it "an administrative body created by the act to carry its provisions into effect," and of there being no duty on courts in reviewing its decisions to apply technical rules of law, and yet the Michigan act was not nearly so specific in saying that the commission in that state should not “be bound by technical rules of evidence." The California court plants itself squarely on the proposition that the hearsay rule is not a technical rule.

If a merely administrative body, supposed to have or to acquire special knowl

edge for the performance of its duties, is to

by a rule, which is merely to protect unbe hampered in its most important function by a rule, which is merely to protect untrained jurors against undue influence, and which rule does not control judges hearing evidence, why is it not to be deemed a technical rule? In all of the cases the California case cites, the courts were speaking of common law courts, where the issue was compensation statute, as to which cases also one for a jury to decide, and the English are cited, is not shown to carry any such provision as is found in the California statute. If the less explicit Michigan statute is held to take cases thereunder from the

English rule, a fortiori is this to be said

as to the California statute.

New York Compensation Act. In the New York Compensation Act it is provided that: "Technical Rules of Evidence or Procedure Not Required. The commission or a commissioner or a deputy commissioner in making an investigation, or inquiry or conducting a hearing shall not be bound by

common law or statutory rules of evidence or by technical or formal rules of procedure ***`but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties." By a majority view, New York Supreme Court, in Appellate Division, it was ruled that an award predicated on evidence "wholly hearsay" should be sustained.16

The majority in its opinion cites another section authorizing the commission to adopt rules providing for the "nature" of the evidence to be accepted by it. The court said: "As to proceedings before the commission, these two sections wholly abrogate the common law, the statute law, the rules of procedure formulated by the courts and all the technicalities respected by the legal profession. The commission is authorized by this section, it seems, to make its investigation in any manner that it chooses, wholly unfettered by any law previously invented by man. This is the spirit of the statute. The very instant that the old rules of evidence are invoked, the informal character of the hearing disappears, and the rigid formal rules of procedure and all the technicalities incident to the practice of the law will grow up around the commission, hampering and delaying it, working inconvenience and hardship upon the claimants and defeating the intent of the law."

There is a dissenting opinion, but it does not go to the length of saying that hearsay evidence was not admissible in such a hearing as was had. This opinion said: "The commission had the right and power, in its untrammeled discretion, to receive and admit proffered proof freely and liberally, with a view to developing all the facts. It might take any evidence, oral or documentary, which impressed its members as perhaps tending to disclose to them the whole situation as to matters in dispute." As to what shall be done with this evidence, it is further said: "After the commission has

(16) Carroll v. Knickerbocker Ice Co., 155 N. Y. Supp. 1.

gathered all this data, all this information, unfettered by technical rules of evidence, there must come sifting and sorting and there must come assortment of wheat from

chaff, demonstration from gossip, proof from "hearsay," and then the ascertainment of what facts have been fairly proved under 'the maxims which the sagacity and experience of ages have established as the best means of discriminating truth from error."" But "there must be in the record some evidence of a sound, competent and recognizedly probative character to sustain the findings and award made."

The majority view was that if hearsay evidence could be received at all, it could be acted upon for whatever it was worth, in the judgment of the commission. This view, I think, is right, because there seems

no instance where it has been received that it has been refused to have its influence on the ultimate question of fact to be determined. It has been denied admission in jury trials, because generally juries do not know how to weigh it, and it has been received by judges and acted on. And where such evidence came under some exception, there was the same inherent weakness as where it was offered to prove a specific fact. But the members of an industrial commission not only possess the same judicial cognizance as judges have, but in addition they are presumed to be in possession of a special cognizance too.

I regret that I am unable to cite more authority to the specific question I have been treating, but it does seem that statutes creating special commissions ought to be treated more liberally by the courts, than the California court evinces. If England, which gave us the hearsay rule, which, instead of representing as much as its admirers claim for it, really is opposed to as equally a great system of jurisprudence as the civil law, admits that it often rejects "a most valuable source of evidence," why should we be clinging to it, when men in their everyday relations in life would not reject

WINSLOW, C. J.

[1] A number of errors in the charge of the court are alleged, but it seems to us that we can attain greater clarity by treating the case abstractly and stating the general principles applicable, than by taking up the alleged errors in detail.

The occasion was one of conditional privilege. The plaintiff was a candidate for the office of county judge, a position where integrity, incorruptibility, and judicial ability are absolute essentials. By his candidacy he placed his character in these respects before the people for consideration and discussion. One voter might in good faith and without malice place before other voters fair criticism of or comment upon the plaintiff's acts in these respects without liability, but he could not make libelous statements of fact which were false any more than he could if no such candidacy existed, nor could he indulge in insult or contemptuous phrase. A local newspaper might do the same things and no more. But while the privilege is thus confined to fair comment or criticism upon facts the

if the facts warrant it. Such has been the position of this court in the case of criticism of public officers. Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111; Williams v. Hicks Co., 159 Wis. 90, 150 N. W. 183; Leuch v. Berger et al., 155 N. W. 148 (present term). The same rule has also been applied to publications concerning candidates. Ingalls v. Morrissey, 154 Wis. 632, 143 N. W. 681, Ann. Cas. 1915D, 899.

[2] It is recognized that there is a disagreement in the authorities on the question whether false statements concerning candidates for office made without malice and in good faith are privileged. In some jurisdictions it is held that all matters true or false having a bearing on the fitness of a candidate may be published without liability if it be shown that they were published without malice in good faith, and in the honest belief that the facts stated were true. Briggs v. Garrett, 111 Pa. 404, 2 Atl. 513, 56 Am. Rep. 274; Coleman V. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. (N. S.) 361, 130 Am. St. Rep. 390. We deem the other view, however, to be supported not only by our own decisions, but by the better reason and by the great weight of authority in other courts. Newell, Slander and Libel (3d Ed.) §§ 633636; 25 Cyc. 402-405, and notes; Post Pub. Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201.

[3] We do not overlook sections 94-17 and 94-38 of chapter 650, Laws of 1911 (now section 12.17, Statutes 1915), which provide that no person shall knowingly publish any false statement in relation to a candidate intended or tending to affect the voting at any primary or election, and also provide for the punishment of such an act criminally by fine or imprisonment or both. We do not, however, see in these provisions any purpose to change the established principles of law which respect to privilege in a civil action. One of these principles, as we have seen, is that the conditional privilege as regards a public officer or candidate for public office does not extend to false statements of fact. The statutory provisions cited seem intended to add to, rather than to subtract from, the penalties which may follow the publication of false and libelous statements of fact regarding candidates for public office.

[4] It is true that in certain classes of cases the law of conditional privilege will protect one who makes an entirely false charge, as, for instance, one who communicates to an officer of the law a charge of crime against another, in good faith, believing it to be true, and acting simply from a sense of public duty. Joseph v. Baars, 142 Wis. 390, The

it to crue, aring, simply, fras w

reason for this is very plain, and it is equally apparent that it is not present in such cases as the one before us

[5-7] Now in the present case the first question for the jury was what meaning the article carried to the readers of the paper. In view of the political conditions in the state in 1910 and at the time of the publication as shown by the evidence, did this article convey

the idea to the readers of the paper (1) that the plaintiff received and took part in the unlawful distribution of a part of a political corruption fund in the primary campaign of 1910, or (2) that he sold his political influence and surrendered his honest belief for money in that campaign? If it carried these ideas or either of them, it was libelous unless proven to be true. If, however, it simply conveyed the idea that the plaintiff received and distributed in lawful ways a part of a large political campaign fund and that he received money for political labor and influence exerted in lawful ways and not contrary to his honest convictions, the article was not libelous in these two respects. In judging of the meaning of any given part of the article, the whole article is, of course, to be considered.

[8] The propositions just referred to are really the only statements of fact in the article, but there is a comment upon them which stands upon an entirely different basis, and that is the thinly veiled comparison of the plaintiff to Judas Iscariot. This is not a statement of fact but a comment or criticism. It likens the plaintiff, not to an ordinary turncoat, but to the man who, in the estimation of the Christian world, committed the greatest crime in history by selling the life of his divine Master for money.

It requires no argument to prove that this is a jibe, a contemptuous insult, and not fair criticism of any type; hence it is not privileged. Curtis v. Mussey, 6 Gray (Mass.) 261. Being libelous on its face, the only question to be submitted to the jury in connection with it is the question of the amount of damages. Thus the defense of conditional privilege drops entirely out of the case.

[9] Returning now to the consideration of the questions arising with regard to the statements of fact first herein discussed, if the jury find those statements not to carry a libelous meaning they also drop out of the case; but, in case the jury find that they carry the libelous meaning above referred to, the question will then arise: Are they, or is either of them, substantially true? This question, however, will only arise in case justification is properly pleaded, which it seems is not the case at present.

[10] It is doubtless true that, in order to be a complete defense, a justification must be as broad as the libel, and that an allegation of the truth of a part of the facts alleged in the libel can operate only as a partial defense. In the present case the defendants are compelled to admit that the plaintiff did not in fact receive $200 for organizing Manitowoc

county, and hence that he did not receive or disburse $387.67 as charged, but $185.67 at the most. Thus it is evident that they cannot plead that the entire sum named in the article was received and disbursed but only a part thereof. Ordinarily this would only be a plea in mitigation of damages, but in a case like the present it would be a plea of justification. The rule is that the substance of the charge only need be proven true. Nehrling v. Herold Co., 112 Wis. 538-567, 88 N. W. 614; Conner v. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596. The material substance of the statement in question (if it be held by the jury to convey a libelous meaning) is that money was received and disbursed by the plaintiff for corrupt and unlawful political purposes, not that precisely $385.67 was so received and disbursed. The quality of the act does not depend upon the amount so long as the amount is substantial and not trivial. It is really immaterial whether it was $50 or $385.67. So if it be shown by the defendants that a substantial sum was so received and disbursed, though that sum be much less than $385.67, they will have shown a justification as to the supposed libelous statement under consideration. There was testimony in the case tending to support the defendants' contention in this regard; but, inasmuch as there must be a new trial of the case, we forbear to comment upon it.

[11] While there was no law in 1909 limiting the amount which would be legally spent by candidates for public office (the first law on that subject being chapter 650, Laws of 1911; Stats. 1913, §§ 94-1 to 94-38), there were many ways in which money could be corruptly and unlawfully used. While men might doubtless be hired to do lawful political labor, it was unlawful to buy votes, either directly or indirectly under pretense of paying for work or by the use of other subterfuges; it was, with certain exceptions, unlawful for any person to pay or agree to pay money to secure the nomination of a state senator or assemblyman unless the person making the promise or payment was a bona fide resident of the district; and it was necessarily unlawful to use such moneys for such purposes if collected. R. S. 1898, § 4543b. Whether there were other unlawful and corrupt uses to which money could be put in 1909 it is unnecessary now to consider. Similar considerations apply to the supposed charge that the plaintiff sold his political influence for money. The question of the amount of money is entirely immaterial if the fact itself be shown.

We do not deem it necessary to review the charge of the court at length. It contained