a constitutional guaranty of freedom of speech. Habeas corpus unconstitutional law. 2. Habeas corpus lies to release from custody one arrested under an unconstitutional statute. P (May 19, 1908.) Gantt, J., delivered the opinion of the court: This is a proceeding under the habeas corpus act, in which petitioner seeks to be discharged from further prosecution under an information filed by the prosecuting attorney of Jackson county, in the criminal court of said county, on the 9th of March, 1908, charging the petitioner with a violation of an act passed by the legislature of this state and approved April 12, 1907, entitled "An Act to Regulate Civic Leagues and Like AsPetitioner dis-sociations, and Providing How Their Reports ETITION for a writ of habeas corpus to secure the release of petitioner from custody to which he had been committed for violation of a statute regulating the reports of civic leagues. charged. The facts are stated in the opinion. Mr. J. McD. Trimble, for petitioner: If a publication is neither blasphemous, obscene, seditious, nor defamatory, then no court has the right to restrain it, and no legislature the power to punish it. and Recommendations Shall be Published and What They Shall Contain, and Fixing a Penalty for the Violation of, and LiaMo. Laws 1907, p. bility for the Same." 261. A warrant was duly issued upon the information, and the petitioner was arrested. The said information charges: That the Cooley, Const. Lim. 6th ed. p. 518; 18 Am. Kansas City Civic League is and was at all & Eng. Enc. Law, 2d ed. p. 1125; Paterson, times therein mentioned a league, society, Liberty of Speech, p. 5; State v. Van Wye, and association incorporated under chap. 12, 136 Mo. 234, 58 Am. St. Rep. 627, 37 S. W. art. 11, Rev. Stat. 1899 (Anno. Stat. 1906, 938; State ex rel. Crow v. Shepherd, 177 Pp. 1103-1119), and was formed for the Mo. 244, 99 Am. St. Rep. 624, 76 S. W. purpose of investigating the character, fit79; Marx & H. Jeans Clothing Co. v. Wat-ness, and qualifications of candidates and son, 168 Mo. 133, 56 L.R.A. 951, 90 Am. St. Rep. 440, 67 S. W. 391. Anything which makes the exercise of the right of freedom of speech more expensive or less convenient, more difficult or less effective, impairs that right. Gladney v. Sydnor, 172 Mo. 318, 60 L.R.A. 880, 95 Am. St. Rep. 517, 72 S. W. 554; Edwards v. Kearzey, 96 U. S. 600, 24 L. ed. 796; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042. nominees for public office. That it was at all times mentioned, and for a long time prior thereto, the custom and purpose of said Kansas City League to make reports and recommendations on such candidates. That on the 24th of December, 1907, in Kansas City, Jackson county, Missouri, the said Kansas City Civic League did, through its executive committee then and there in executive session assembled, write, make, and adopt a recommendation and report upon the fitness and qualification of John M. Rood and William J. Campbell, who were then and there candidates and nominees for the election to the office of sheriff of Jackson coun The right to speak freely is necessarily attended by the correlative right to remain silent. Wallace v. Georgia, C. & N. R. Co. 94 ty, Missouri, at the special election to be Ga. 732, 22 S. E. 579. The proceeding by writ of habeas corpus is a proper remedy to test the constitutionality of a statute; and the supreme court has authority to issue such writs and determine the question originally. Mo. Const. art. 6, § 3; Ex parte Neet, 157 Mo. 527, 80 Am. St. Rep. 638, 57 S. W. 1025; Ex parte Lucas, 160 Mo. 218, 61 S. W. 218. Messrs. House & Manard also for petitioner. Mr. I. B. Kimbrell for respondent. held in said county on the 27th of December, Civic League Report. John M. Rood, Democrat. Born on a farm near Quincy, Illinois, in 1858. Went to Carroll county, Missouri, in 1877. Taught school and was engaged in general merchandise business at Carrollton, Missouri, until 1887, when he came to Kansas City, since which time he has been engaged in the lumber business. He served one term in the upper house of the city council, 1900 to 1904. His record was approved by the Civic League at the end of his term. We regard Mr. Rood as a citizen of high type, and well will on any subject, being responsible for all qualified for the office of sheriff. William J. Campbell, Republican. Was born in Ripley, Ohio, in 1863, and came to Missouri about 1879. Was station agent for the C., B. & Q. Ry. Company at Parkville from 1884 to 1887. Was in the general merchandise business at Parkville from 1887 to 1889, when he came to Kansas City and be came a member of the present real estate and insurance firm of Tilhor & Campbell. He served one term in the lower house of the city council from 1900 to 1902. The Civic League said of him at the end of his term: "He made a good record in the council." He was appointed sheriff of Jackson county on September 30, 1907, by the county court. The service of both Mr. Campbell and the deputies under him have been highly satisfactory, and the league consider him well qualified for the office. By order of executive committee. J. McD. Trimble, President. abuse of that liberty." And also of § 53 of article 4 of the Constitution of Missouri (Anno. Stat. 1906, p. 197), which forbids special or class legislation. Sec. 1 of the act of the legislature of April 12, 1907, providing how reports and recommendations of civic leagues and like associations shall be published, provides: "Leagues, committees, associations, or societies incorporated or formed for the purpose of investigating the character, fitness, or qualifications of candidates or nominees for public office, and making reports on the same, shall, in each and every printed or published report or recommendation as to such candidates or nominees state in full on what facts they base their report or recommendation, giving the name and address in full of all persons furnishing the information of and concerning such candidate or nominee, and state in full the information furnished by such party Any report or recommendation printed or published by such league, association, or society, which does not contain all of the above information, shall be unlawful, and any person printing, publishing, or causing to be printed, published, or circulated any such report or recommendation without such information, shall be guilty of a misdemeanor, and upon conviction shall be fined in the sum of not less than $100 nor more than $500, or by imprisonment in the county jail for not less than one month nor more than one year, or by both such fine and imprisonment." The constitutional liberty of speech and of the press grants the right to freely utter and publish whatever a citizen may desire, and to be protected in so doing, provided always that such publications are not blasphemous, obscene, seditious, or scandalous in their character, so that they become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation, or pecuniary interest of individuals. State v. Van Wye, 136 Mo. 234, 58 Am. St. Rep. 627, 37 S. W. 938; Paterson, Liberty of Speech, p. 5; Cooley, Const. Lim. 6th ed. 518; State ex rel. Crow v. Shepherd, 177 Mo. 244, 99 Am. St. Rep. 624, 76 S. W. 79. That said report and recommendation did not state in full on what facts the said report and recommendation was based, and did not give or contain the name or address of any person or persons furnishing the information of and concerning said candidates and nominees in said report and recommendation contained, or upon which said report was based. That on the 24th day of December, 1907, said Allen O. Harrison, who was then and there a secretary of said Kansas City Civic League, did unlawfully and wilfully deliver a copy of said report and recommendation to the Burd & Fletcher Printing Company in Kansas City, Jackson county, Missouri, and caused 250 copies thereof to be printed and published by said printing company upon postal cards of the United States, and did thereafter on said 24th of December, 1907, unlawfully and wilfully place upon said postal cards, upon which said report and recommendation had been printed, the names and addresses of 250 different persons residing in said Kansas City, and wilfully and unlawfully circulate said postal cards by depositing the same in the United States postoffice in said city. with intent that they should be delivered to the persons to whom they were addressed, contrary to the statute of this state. Petitioner seeks his release from imprison-eral Constitutions, unquestionably has the ment on said charge on the ground that said act of April 12, 1907, is unconstitutional and void because in contravention of § 14 of article 2 of the Constitution of Missouri (Anno. Stat. 1906, p. 135), which provides "that no law shall be passed impairing the freedom of speech; that every person shall be free to say, write, or publish whatever he The general assembly, under the legisla tive power granted it by the people, subject to the limitations of the state and Fed power to enact penal statutes and prescribe civil remedies "for all abuses of that liberty" of speech or publication. If a publication is neither blasphemous, obscene, seditious, nor defamatory, then, under the Constitution of this state, no court has the right to restrain it, nor the legislature power to punish it. The report which the petitioner pub lished has nothing in it either blasphemous, | liberty of silence, not less important nor seditious, obscene, or defamatory, and clear-less sacred. Statements or communications, ly falls within the liberty of speech or pub- oral or written, wanted for private informalication granted by the Constitution; but it tion, cannot be coerced by mere legislative is equally certain that this publication was mandate at the will of one of the parties forbidden by the statute of April 12, 1907, and against the will of the other. Combecause it did not state in full all the facts pulsory private discovery, even from coron which said report or recommendation was porations, enforced, not by suit or action, based, and did not give the name and ad- but by statutory terror, is not allowable dress in full of all persons who furnished any where rights are under the guardianship of information concerning the said nominees due process of law." The act of April 12, therein mentioned for the office of sheriff, 1907, is not confined to forbidding and punand did not state in full the information ishing abuses of the liberty of speech or pubfurnished by each of the persons who fur-lications, but undertakes to punish speech nished the same. It seems too clear for or publication without any reference to argument that this statute is in conflict whether they fall within the legal excepwith § 14, article 2 of the Constitution. tions of blasphemy, obscenity, sedition, or Prior to the enactment of the act of April defamation. 12, 1907, it is not to be doubted that the petitioner would have had the right to have stated all that was said in the said report and recommendation without stating anything more; but under this act that right is now denied, unless he prepares and pays for publishing all of the facts upon which he based said recommendation and report, and gives the names and addresses of all persons who gave him any information of or concerning either of said candidates, and a full statement of all the information that each of them furnished him. Anything which makes the exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right. Without further discussion or elaboration, we think it is perfectly obvious that the act of April 12, 1907, transcends the power of the legislature, and is in conflict with the Constitution, and therefore void. As an unconstitutional act is utterly void, the petitioner is entitled to be discharged under the habeas corpus act from further prosecution on the information filed in the criminal court against him. Ex parte Neet, 157 Mo. 527, 80 Am. St. Rep. 638, 57 S. E. 1025; Ex parte Lucas, 160 Mo. 218, 61 S. W. 218. The prisoner is discharged. Fox, P. J., and Burgess, J., concur. MISSOURI SUPREME COURT. (Division 1.) In Gladney v. Snydor, 172 Mo. loc. cit. 328, 60 L.R.A. 880, 95 Am. St. Rep. 517, 72 S. W. 554, it was said by this court: "'Impair' means to make worse, to lessen the power, to weaken, to enfeeble, to deteriorate." The right to speak freely is necessarily attended by the correlative right to remain silent. In Wallace v. Georgia C. PUBLISHERS: LEE MERIWETHER, Respt., (Mo. Pleading v. GEORGE KNAPP & COMPANY, Appt. 109 S. W. 750.) variance libel. To what proceedings in court does privilege of publication attach. & N. R. Co. 94 Ga. 732, 22 S. E. 579, it appears the legislature had passed an act entitled "An Act to Require Certain Corporations to Give to Their Discharged Agents or Employees the Causes of Their Remov- 1. An answer in a judicial proceeding is al or Discharge, when Discharged or Re-not inadmissible in evidence in support of a moved." The supreme court of Georgia held charge of libel because the petition in charging the libel used only extracts from it. said act unconstitutional, and in doing so without showing that it was a pleading, said: "A statute which undertakes to make it the duty of incorporated railroad, Case Note. express, and telegraph companies to engage in correspondence of this sort, with their discharged agents and employees, and which subjects them in each case to a heavy for feiture, under the name of damages, for failing or refusing to do so, is violative of the general private right of silence enjoyed in this state by all persons, natural or artificial, from time immemorial, and is utterly void and of no effect. Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative This note recognizes the rule that fair and accurate reports of judicial proceedings in which a full hearing and trial have been had are qualifiedly privileged; and the cases intended here to be covered are those in which ex parte, or like proceedings, only have taken place. There is some conflict among the cases upon the question. The weight of authority, however, both in this country and in England, now seems to he that a qualified privilege extends to public where the allegations of the petition and the gist of the publication do not so radically vary as materially to alter the sense of the part said to be libelous. Venue libel corporation defendant. --- malice. libel consisting, in part, of coupling plaintiff with another person named, an article is admissible in evidence relating entirely to such other person, but which places him in such light that associating plaintiff's name with his might be libelous. Same judicial proceeding -venue. 5. A hearing upon an application for change of venue in a judicial proceeding is such judicial action as will justify a color3. To prove malice in an action for the less publication of the pleadings and applipublication of a libel, other articles pub-cation for change of venue as items of news. lished by the same defendant are admissible in evidence, if they will bear the construction of ill-will towards plaintiff, although in one construction they contain mere mat ters of general political interest. other publications. Same malice jury. 6. The question whether or not the omis sion of the replication from a publication of the pleadings in a cause was malicious is for the jury. Trial admission — evidence 4. In an action for the publication of a judicial proceedings and applications to mag- | Co. (Del.) 62 Atl. 1089, the filing of an istrates, judges, or courts for judicial pro- affidavit with the prothonotary for the purceedings, whether ex parte or otherwise.pose of obtaining a writ of a capias ad The mere filing of applications, pleadings, respondendum, the issuance of the writ, and etc., however, is generally held insuflicient the subsequent arrest and execution of a to render their publication privileged. See bail bond were held not to constitute such case note to Nixon v. Despatch Printing judicial proceedings as would warrant a reCo. 12 L.R.A. (N.S.) 188. port under the protection of privilege. The earlier cases upon the question an- And in Johns v. Press Pub. Co. 29 Jones notated, both in the United States and in & S. 207, 19 N. Y. Supp. 3, where the facts England, hold reports of ex parte and like do not appear, the court said: “Aside from proceedings not entitled to privilege, and in ex parte petitions and the like, any publicathe following cases this rule was applied:tion made in the ordinary course of judiThus, in Stanley v. Webb, 4 Sandf. 21,cial proceedings is privileged if the article it was held that the publication of an ex be a fair and impartial account." parte complaint before a police magistrate was not privileged, and to the same effect is Matthews v. Beach, 5 Sandf. 256. In M'Gregor v. Thwaites, 3 Barn. & C. 24, the publication of what transpired upon an application to a magistrate for his adAnd the same was held in Rex v. Fisher, vice was held not privileged, where it ap2 Campb. 563, as to a preliminary examina-peared that the matter was not brought betion taken ex parte before a magistrate before him in his judicial character. fore committing for trial or holding for The later cases, however, and the weight bail. The court there said: "Jurors and of authority, now hold reports of such projudges are still but men; they cannot al-ceedings to be privileged. This rule was ways control feelings excited by such in-applied: flammatory language. If they are exposed -in Bissell v. Press Co. 62 Hun, 551, 17 to be thus warped and misled, injustice must sometimes be done. Trials at law, . . to individuals have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil that arises from them is rare and incidental. But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite importance to us all, that whatever has a tendency to prevent a fair trial should be guarded against. Everyone of us may be questioned in a court of law, and called upon to defend his life and his character. We would then wish to meet a jury of our countrymen with unbiased minds. But for this there can be no security, if such publications are permitted." And the same rule was applied in Duncan v. Thwaites, 3 Barn. & C. 556, as to the examination of one brought before a magistrate, charged with a crime. N. Y. Supp. 393, as to fair and true accounts of proceedings before a police magistrate, which were held to be within the meaning of the statute allowing privileged reports of judicial proceedings; -in Ackerman v. Jones, 5 Jones & S. 43, as to a fair report of an affidavit stating that defendant had stolen property, made in the course of the regular proceedings before a police magistrate (the court saying in this case that there is now no distinction between ex parte and regular proceedings in court); -in Kimber v. Press Asso. [1893] 1 Q. B. 65, as to the report of an ex parte proceeding applying for a summons before three justices (it did not appear that any evidence under oath was given in this case, and it was also held that the privilege exists although the publication is before the final decision, so long as the report is fair and full); -in Usill v. Hales, L. R. 3 C. P. Div. 319, where the report of an application to a magSo, in Todd v. Every Evening Printingistrate for a summons was held privileged, admission of fairness in the publication of the final proceedings in a libel suit to take the place of proof of such publication, in an action for libel growing out of the former proceedings. (April 1, 1908.) therefore, did not sustain the allegations of the petition. Berry v. Dryden, 7 Mo. 324; Birch v. Benton, 26 Mo. 153; Christal v. Craig, 80 Mo. 367; Wood v. Hilbish, 23 Mo. App. 389; Starkie, Slander & Libel, p. 463; Odgers Libel & Slander, p. 405; Townshend, Slander & Libel, § 622; 3 Phillipps, Ev. 551; Ruth APPEAL by defendant from a judgment erford v. Frans, & Bing, 451; McClure v. Re of the Circuit Court for St. Louis County in plaintiff's favor in an action brought to recover damages for the alleged publication of a libel. Reversed. view Pub. Co. 38 Wash. 160, 80 Pac. 303; Cartwright v. Wright, 5 Barn. & Ald. 615; Perry v. Porter, 124 Mass. 338. The publication made by defendant was privileged as the report of a judicial pro The facts are stated in the opinion. The publication complained of in the petition was not the publication shown to have been made by the defendant. The proof, although the magistrate decided he had no jurisdiction, and declined to grant it; -in Pinero v. Goodlake, 15 L. T. N. S. 676, where a fair report of an ex parte investigation before a magistrate was held to be privileged to the same extent as regular proceedings in a court of law; Newell, Defamation, p. 471; Barber v. St. Louis Despatch Co. 3 Mo. App. 377; Kimber v. Press Asso. [1893] 1 Q. B. 65; Thompson v. Powning, 15 Nev. 195. 66 Am. Dec. 198, it was held that defendant had a right to report the fact that the plaintiff had been arrested upon an affidavit of a policeman and held for examination. In Reg. v. Gray, 10 Cox, C. C. 184, the court were not agreed that an order for a -in Beiser v. Scripps-McRae Pub. Co. 113 criminal information should be issued on Ky. 383, 68 S. W. 457, where a fair and account of the publishing of a preliminary impartial publication of an application to investigation in the police court resulting make an affidavit for the purpose of institut-in the committal of the prisoners, although ing a prosecution was held privileged as being one step in a judicial proceeding (the affidavit in this case was prepared, but never sworn to or signed, the plaintiff being persuaded to drop the matter); it was free from comments; but a majority of the court were of the opinion that it should be privileged. In Blodgett v. Des Moines Daily News Co. (Iowa) 113 N. W. 821, it was held that a report of a person's having been called before a judge and asked why he had not paid a fine, and further stating that he had been given until a certain time to remit or go to jail, was held equally privileged whether the judge was acting in court or in chambers. -in Lewis v. Levy, 4 Jur. N. S. 970, where correct reports of proceedings before a magistrate in which a summons was issued on a charge of perjury, and two hearings had, which resulted in a dismissal, were held privileged (the court, however, said that it was not prepared to lay down the rule that the publication of preliminary in- So, in Smith v. Scott, 2 Car. & K. 580, quiries before magistrates is universally a fair report of proceedings before judges lawful, or that the publication of such in-at chambers on application to discharge a quiries is universally unlawful, and refused to sanction the sweeping condemnation of police courts as to privileged matters); -in American Pub. Co. v. Gamble, 115 Tenn. 663, 90 S. W. 1005, where a bill to restrain the sale of land, alleging that the petitioner's attorney had applied money paid him to satisfy a judgment to his own use, had been presented on ex parte hearing to a judge and a preliminary injunction issued. So, in Conner v. Standard Pub. Co. 183 Mass. 474, 67 N. E. 596, this rule was applied as to a fair statement, in a newspaper, of the proceedings of the municipal court on a complaint, and the record of the superior court that no bill was found by the grand jury. And in Moore v. Despatch Printing Co. 87 Minn. 450, 92 N. W. 396, a report of proceedings of a trial in the municipal court, and a statement of what actually occurred there between the parties, were held to be privileged. bankrupt was held privileged. And in McBee v. Fulton, 47 Md. 403, 28 Am. Rep. 465, the publication of reports of proceedings before a justice of the peace in the course of a preliminary inquiry upon a charge, resulting in holding a party for bail or committing him to await action by the grand jury, was held to be entitled to the same privilege as that attaching to regular proceedings in court, where they were correct and made in good faith. In Metcalf v. Times Pub. Co. 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864, after an order by a justice for citation and the issuing of an ex parte preliminary injunction until hearing, the charges of fraud contained in the bill were published. It was held that a sufficient proceeding in court to warrant a privilege was shown. The plea, however, failed to show that the report was a full and fair one. So, in Ryalls v. Leader, L. R. 1 Exch. 296, it was held that a report of proceed So, in Tresca v. Maddox, 11 La. Ann. 206,ings before a registrar in bankruptcy was |