State Ex Rel, Tune v. Falkenhainer

HIGBEE, J. This is an original proceeding for a writ of prohibition to prohibit the respondents, judges of the Circuit Court of the City of - St. Louis, from enforcing a subpoena duces tecum requiring Marsh to pro‘duce a letter addressed to the Complaint Board on the ground of privilege. Statement. The Charter of the City of St. Louis provides that the Compaint Board shall receive “ complaints against any department, board, division, officer, or employee of the city, or against any public utility corporation, and examine the same. It shall recommend to the ., , , ., ... .. proper city or State authorities any action deemed advisable.” The relators are the members and secretary of this board. The petition alleges that Samuel J. Douglas is an employee of the City of St. Louis in the department of streets and sewers; that Douglas brought an action in the circuit court a,gainst Lawrence McDaniel and George S. Thomas for libel, based on a letter written by them November 29, 1916, making certain false charges against him in this, that he uses vile and obscene language to women and children who pass him; that he curses and swears at children, etc., his damage in the the sum of $50,000: that Douglas brought an action of mandamus against relators in the St. Louis Court of Appeals to -obtain a copy of said letter for his use in the preparation and as evidence in the trial of said action, which is still pending in the said circuit court; that the Court of Ap *25 peals held that said letter was privileged and that the court could not compel its production as evidence upon the trial of said cause; that thereafter said Douglas sued out a writ of certiorari in the Supreme Court, alleging that the decision of the Court of Appeals was in conflict with decisions of the Supreme Court and that the Supr.eme Court held that said decision was not in conflict with any of its prior decisions and quashed the writ of certiorari. That on March 29, 1920, the Hon. Victor H. Falkenhainer, judge of said circuit court, presiding in Division One of said court, on the application of said Douglas issued a subpoena duces tecum directed to relator Marsh, secretary of said Complaint Board, to produce said letter at the trial of said cause; that on May 20, 1920, relators filed a motion to quash said subpoena, citing said decision of the Court of Appeals holding said letter to be a privileged communication, but said Judge overruled said motion; that said Marsh is ready and willing to appear in said court in response to said subpoena but is unwilling to produce said letter because the Court of Appeals held it to be a privileged communication: that the Hon. Karl Kimmel is now presiding judge in Division One of said circuit court; that Judge Falkenhainer is now presiding judge in Division Thirteen of said court, and that Judge Kimmel threatens to enforce said subpoena and compel the production of said letter on the trial of said cause, all of which is contrary to the decision of said Court of Appeals. The respondents’ return to the preliminary rule sets out the amended petition filed in the Douglas libel action and the subpoena duces tecum, and avers that in the proceedings in the Court of Appeals (State ex rel. Douglas v. Tune, 199 Mo. App. 404, 203 S. W. 465), and in this court (State ex rel. Douglas v. Reynolds, 276 Mo. 688, 209 S. W. 100), no showing was made that the libel was predicated upon a letter that was maliciously written, as was averred in the amended petition in the libel suit, and that said court properly overruled the *26 motion to quash said subpoena: that'thereafter Judge Falkenhainer was transferred to Division Thirteen of said court and Judge Kimmel was assigned to Division One thereof; that the acts done by respondents and each of them respectively were done and intended to be done in discharge of their official duties and that said subpoena was issued for the reason that the suit was an action for libel on a petition which averred that the letter mentioned in said subpoena was written falsely and maliciously by defendants, and an issue has been joined on a general denial filed by said defendants; that said action has been continued from time to time on account of the pendency of this proceeding. Wherefore they pray, etc. Relators challenge the sufficiency of the return and move for the issuance of a peremptory writ of prohibition. The foregoing statement, it is believed, is sufficient for the consideration of the questions arising in this cause. The facts are fully recited in the opinion of Judge Graves in State ex rel. Douglas v. Reynolds, 276 Mo. 688. . Libel: Public vSg^a ¿om munication: Actual Malice. I. Relators charge that the circuit court exceeded its jurisdiction in issuing the subpoena to respondent Marsh to produce in court the letter on which the action whs predicated, because it was held to be privileged by the Court of Appeals. ’ The opinion of Judge Graves notes the absence of an averment in the petition for the writ 0f mandamus of an allegation that the letter was maliciously' w-ritten. In other words, as far as the petition before us for review is concerned, we must presume, under the law, that the letter was sent in good faith and without malice (p. 694). On page 695,- Judge Graves, speaking for Court in Banc, said: “The petition for-mandamus showrs the board to which it was addressed was at least a .governmental *27 agency provided for the good of the city government. Complaints made to such a body, at the very least, must be held to be qualifiedly privileged, and the qualified privilege cannot be destroyed without a charge of malice. To destroy the patent qualified privilege of this letter, absence of good faith, and presence of malice, should have been charged. No such charge is made and upon this theory alone the Court of Appeals reached a right result in refusing the writ.” There can be no doubt that the letter in question is qualifiedly privileged. Finley v. Steele, 159 Mo. 299, was an action for libel based on a letter written by the members' of a school board to the county superintendent, making accusations 'against Miss Finley, the teacher of the school, and asking him to revoke her certificate. Judge Burgess reviewed many eases. At the foot of page 805, the learned judge said: “It is announced in Marks v. Baker, 28 Minn. 162, that ‘the rule is that a communication made In good faith, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice. ... is cast upon the person claiming to be defamed.’ “ ‘Malice in such case is not shown by the mere fact of the falsity of the publication.’ [Henry v. Moberly, 6 Ind. App. 490; Stewart v. Hall, 83 Ky. 375.] ” Again, on page 307, it was said: “They not only had an interest in regard to the way in which the' school was being conducted, but in preferring the charges against the plaintiff were simply discharging their duties as members of the school board, and it makes no difference that the exact words of the statute were not used, or that some word not embraced therein was used, the purpose and intent was the same. There was no actual malice proven, and the use of such word or words did not take away the priv *28 ileged character of the communication. Intent makes the libel in such circumstances. “The communication was made on a proper occasion, from a proper motive, and was based upon a reasonable cause. It was made in apparent good faith, and under these circumstances the law does not imply malice— and as there was no proof of express malice the plaintiff was not entitled to recover. The judgment is affirmed. ’ ’ The ruling in Finley v. Steele has been frequently approved. [See Peak v. Taubman, 251 Mo. 390, 418, 434 et seq.] The rule permitting’ criticism of public officers is the same as that which governs .the criticism of all matters of public interest, such as public institutions, places of entertainment, books, pictures and other matters, and under it it is permissible to criticize fairly and without malice or view to injure or prejudice in the eyé's of the public. [McClung v. Star Chronicle Pub. Co., 274 Mo. 194, 202 S. W. 571.] But the qualified privilege to criticize public acts of public officials does not exist where defendant was actuated by malice. [McClung v. Pulitzer Pub. Co., 214 S. W. 193. See, also, Diener v. Publishing Co., 230 Mo. 613; S. C. 232 Mo. 416; Ex parte Harrison, 212 Mo. 88, 1. c. 92; Cornelius v. Cornelius, 233 Mo. 1, l. c. 30; Tilles v. Publishing Co., 241 Mo. 609 (syl. 6); Link v. Hamlin, 270 Mo. 319, l. c. 336; Yancey v. Kentucky, 122 S. W. 123, 25 L. R. A. (N. S.) 455, and annotations.] McKee v. Hughes, 181 S. W. 930, L. R. A. 1916D, 391, was an action for libel on a petition to revoke the license of a merchant. In that case it was argued that the petition was not privileged because the council had no authority to revoke the license. The court, at page 393, said,: “Can it be that ordinary laymen in the exercise of such a right may be thus caught on such a fine point of law, to their undoing as is insisted in this case? The juster view is that these men but advance the above *29 mode of action as a suggestion for the consideration of the members of the council deemed by them competent to judge and act as public officials, and that they are not liable if they acted in good faith or without malice. The right of petition guaranteed to the citizen in the Bill of Rights should not he allowed to become a trap for the petitioner, to be sprung by any such hairtrigger of technical law.” [See 25 Cyc. 385, C.] However, in some jurisdictions, communications of the character of this letter are held to he within the protection of the Bill of Rights. Thus an application to the Governor for a pardon, charging that the district judge “changed the venue of the case for the purpose of making the costs excessive,” alleged “to be untrue and written and published with actual malice without any foundation whatever,” was held to be absolutely privileged. [Connellee v. Blanton, 163 S. W. 404.] írivüege. II. The Complaint Board is a governmental agency created for the express purpose of investigating complaints against any department, board, officer or employee of the city. It therefore had an interest and a duty to perform in connection with complaints of this character. The complainants were interested, as citizens of St. Louis, in having the matters complained of investigated, and are therefore privileged in making complaints, if made in good faith and without malice. [State ex rel. v. Reynolds, 276 Mo. l. c. 695; 25 Cyc. 389.] Ees. . Acijudicata. III. It is urged, however, that the decision of the Court of Appeals is res adjudicate/, because this court held it was not in conflict with any of its prior decisions. On this point Judge Graves, on page 701 of State ex rel. Douglas v. Reynolds, supra, said: “jn †]16 instant case the Court of Appeals did not have before it a libel suit, nor the lawr of libel. Privilege or qualified privilege in libel law was not before it, nor discussed by it. . . . It held that public policy demanded that complaints to this general- *30 welfare board should not be made public. . . . Certain it is that there is no conflict between their opinion and Finley v. Steele, supra, or any of the cases following that case. The subject-matters discussed are wholly different.” The relator, Douglas, prayed for an order to permit him to inspect or make a copy of the letter, basing his claim on the ground that it was a public document, which the court denied (p. 698). It was not claimed that McDaniel and Thomas had any connection with that case. It was res inter alios acta. [Henry v. Woods, 77 Mo. 277, l. c. 281; Strottman v. Railroad, 228 Mo. 154, l. c. 182; 23 Cyc. 1237.] subpoena Duces Tecum. IY. But a fundamental reason why the rule should be discharged is that the circuit court had inherent power to issue the subpoena (40 Cyc. 2167), and the question of privilege or no privilege is, in the first instance, one solely for the trial court. Issue is joined between the litigants on the question of defendants’ malice in writing the letter. It must be obvious that it is a question of fact of which this court cannot take cognizance in a proceeding of this character. . While the federal grand jury was investigating the charge of treason against Aaron Burr, he applied to the court for a subpoena duces tecum tó the President to produce a certain letter addressed to him by General Wilkinson, together with documents' accompanying the said letter, also the military or naval orders given by the President at or near the New Orleans station concerning the said Burr. Chief Justice Marshall heard arguments touching the authority of the court to subpoena the President, or to require him to produce state papers. There was no precedent. It was admitted that such a writ would not run against the King of England, and it was argued by the District Attorney that the court had no power to subpoena the chief magistrate or to order the production of state papers to be read in evidence; that *31 the documents called for might contain matter which should not he disclosed. The Chief Justice could perceive no foundation for the opinion that the issuance of the subpoena would be discourteous to the President. He held that the law does not discriminate between the President and a private citizen and that the propriety of introducing any paper into a case depends on the character of the paper, not on the character of the person holding it. A subpoena duces tecum, then, may issue to any person to whom an ordinary subpoena may issue, directing him to bring any paper of which the party praying it has a right to avail himself as testimony. The Chief Justice, continuing, said: “When this subject was suddenly introduced, the court felt some doubt concerning the propriety of directing a subpoena to the chief magistrate, and some doubt, also, concerning the propriety of directing any paper in his possession, not public in its nature, to be exhibited in court. The impression, that the. questions which might arise in consequence of such process, were more proper for discussion on the return of the process than on its issuing, was then strong on the minds of the judges. “The court can perceive no legal objection to issuing a subpoena duces tecum to any person whatever, provided the case be such as to justify the -process. The court would not lend its aid to motions obviously designed to manifest disrespect to the government, but the court has no right to refuse its aid to motions for papers to which the accused may be entitled and which may be material in his defense. These observations are made to show the nature of the discretion which may be exercised. If it be apparent that the papers are irrelative to the case, or that, for stated reasons they cannot be introduced into the defense, the subpoena ditces tecum would be useless. But, if this be not apparent, if they may be important in the de *32 fense, if they may be safely read at the trial, would it not be a blot on the page which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied ■ the use of them? . . The second objection is that the letter contains matter which ought not to be disclosed. At present it need only be said that the question does not occur at this time. . . . If it does contain any matter which it may be imprudent to disclose, which it is not the wish of the Executive to disclose, such matter, if it be not immediately and essentially applicable to the case, will, of course, be suppressed. . . . Everything of this kind, however, will have its due consideration on the return of the subpoena.” [1 Burr’s Trial, 182-187], It is sufficient to add that the subpoena was served and the documents called for were forwarded by Mr. "M'ferson to the District Attorney. Justice Marshall reserved the right to pass upon their admissibility at the trial. The precedent, thus established, has ever since been followed. The rule is stated in 40 Cyc. 2169: “It is the duty of a witness served with a subpoena duces tecum to appear and produce the book *or paper mentioned in the writ, if it is in his possession. The fact that a subpoena requires a witness to produce books and papers which he cannot lawfully be required to produce does not affect the legality of the issuance of the subpoena or the obligation of the witness to appear in obedience to it, and if he has doubts as to whether or not he should produce the document called for, he may submit it to the inspection of the court, which may decide on the question of its production. But it has also been held that a witness is not bound to produce a paper, in compliance with a subpoena duces tecum until he has been sworn as a witness to enable him to state on oath his reasons why he should not be compelled to produce it.” *33 In Hull v. Lyon, 27 Mo. 570, it was held, Scott, J., delivering the opinion of the court, that “whether a communication is a privileged one is a question for the court. ’ ’ In Peak v. Taubman, 251 Mo. 391, in an opinion by by Woodson, P. J., l. c. 434, the court said: “It is for the court and not for the jury to say when words are of a privileged character. ’ ’ In TTa.mil & Co. v. England, 50 Mo. App. 338, it was held that an attorney who advised about and drew up a fraudulent bill of sale could be compelled to testify as to. what was said to him by his client and that the trial court erred in holding that such communication was privileged. If the advice had been in a letter, written by the attorney to his client, would this court have prohibited the enforcement of a subpoena duces tecum for its production in evidence? In 1 Thompson on Trials, section 73Ó, the learned author says a subpoena duces tecum is defined to be, “a process by which a court, at the instance of a suitor, commands a person, who has in hfe possession or control some document or paper that' is pertinent to the issues of the pending controversy, to produce it for use at the trial.” In Section 175 it is said: “the papers are required to be stated or specified only with that degree of certainty which is practicable, considering all the circumstances of the case, so that the witness may know what is wanted of him, and may have the papers at the trial so that they can be used, if the court shall'then determine them to be competent and relevant evidence.” Section 300 reads as follows: “Whenever, in the practical application of these rules, the question of privilege arose, it was not . . . the right of the witness to judge except where the matter might incriminate him, whether the matter inquired of was privileged or not. That was' the province of the court. If the production of a document was called for, and the witness declined to produce it, upon the ground that the reading of it in evidence would be prejudicial to his interests, or to the *34 interests of the party for whom the witness acted as attorney, the witness was required to submit the document to the inspection of the court, and if the judge, after perusing it, differed from the witness, he would direct it to be read; or if a witness swore that a question put to him could not be answered without a disclosure of secrets communicated to him by his client, it was for the court to determine, from the nature of the inquiry, whether the principle of protection extended to it or not; and if the court decided that it did not, the witness, should he refuse to answer, would be guilty of a contempt, nor would the court even hear counsel upon the plea of the witness’ objection.” In State ex inf. v. Standard Oil Co., 218 Mo. 1, it was said: “Nor does the Constitution interfere with the power of the court to compel the production of documentary evidence under a subpoena duces tecum.” [Syl. 11]. “The rule seems to be well settled that, although the determination of a question of fact is thereby involved it is for the court to determine the admissibility, materiality, relevancy or competency of evidence, or the competency of witnesses; and it is error for the judge to submit to the jury the competency of evidence, or to instruct them that they may exclude such testimony as they see is improper.” [38 Cyc. 1513]. ProMMtion. Y. It is solemnly asserted by the relators that the trial court exceeded its jurisdiction in issuing the subpoena duces tecum to require Marsh to produce the letter in question held to be privileged by the Court of Appeals, which, as we have seen, was in an action involving other issues and between other parties. It was held by this court, in the opinion by Judge G-raves, that the letter is qualifiedly privileged, but if it be shown to have been written maliciously its qualified privilege is lost. It was held by Chief Justice Marshall that the writ will issue for the production of State papers and that the question of privilege is to be determined when *35 they are offered in evidence. It is charged in the amended petition in the circuit court and in the application for the subpoena duces tecxim that the letter was false and malicious. It is apparent that its production is essential in the trial of the action. Its admissibility in evidence is a question for the trial court. It would be a manifest usurpation and invasion of the jurisdiction of the trial court were we to assume to rule on the issue presented by the pleadings in this case. The preliminary rule was improvidently granted and is quashed. The writ is denied. Elder and D. E. Blair, JJ., concur; J. T. Blair, J.,-concurs in separate opinion; Graves, J., dissents in separate opinion in which Walker, G. J., and Woodson, J., concur.