Larkin v. Noonan

By the Court, Cole, J. Tbe libellous matter complained of was contained in a petition addressed to tbe governor to procure tbe removal of tbe appellant, tbe plaintiff below, from the office of sheriff Of Milwaukee county on account of gross misconduct in office. It is claimed by tbe counsel for tbe respondent, that an application to the governor for such a purpose is, under tbe constitution and laws of this state, strictly in tbe nature of a judicial proceeding, and therefore, that tbe matters stated in the petition, if pertinent to tbe subject of investigation, are privileged, and furnish an absolute exemption to all liability in an action of libel. If this main proposition thus insisted upon be correct, that such an application is in tbe nature of a judicial proceeding, then we suppose all matter which is embraced in tbe petition, if pertinent and relevant, is privileged. This seems to be a well established principle. Jennings vs. Paine, 4 Wis., 358 ; Lake vs. King, 1 Saunders, 120 ; Starkie on Slander (Wend. ed.), 240 ; O'Donaghue vs. McGovern, 23 Wend., 25; Hastings vs. Lusk, 22 id., 410; Gilbert vs. The People, 1 Denio, 41; Garr vs. Selden, 4 N. Y., 91; Hartsock vs. Reddick, 6 Blackf., 255. And tbe rule is certainly sustained by tbe most weighty reasons and tbe highest considerations of public policy. Can then a petition addressed to tbe governor, asking tbe removal of a person from tbe office of sheriff on tbe ground of malversation in office, be said to be in tbe nature of a judicial proceeding? We are inclined to tbe opinion that this question must be answered in tbe affirmative. Our constitution provides that tbe governor may remove a sheriff upon giving him a copy of tbe charges against him and' [88] an opportunity of being heard in. his defense. Sec. 4, Art. 6. The statute provides the same thing. Sec. 4, chap. 14, R. S. 1858. It is obvious that these provisions clothe the governor with a power over the proceeding strictly analogous to that exercised by a court in the trial of a cause. He is required to furnish the accused with a copy of the charges made against him, and give him an opportunity of being heard in his defense. This involves as a consequence a trial — a legal investigation into the truth of the charges. Witnesses may be subpoenaed (sec. 1, chap. 137, R. S. 1858), sworn'and examined. Testimony must be taken, weighed and considered; And although the proceeding is summary, and no trial byj ury allowed, yet it conforms in important particulars to the proceedings in judicial tribunals. If the charges are sustained by satisfactory testimony, the governor may remove the delinquent officer. If the charges are not proven, the officer must be acquitted. Hence, in the hearing of causes of this nature, the governor acts in a quasi-j udieial capacity (Randall v. The State, 16 Wis., 340), and the proceeding is analogous, in its most essential features, to a judicial hearing and investigation. And there would therefore seem to be the same grounds of public policy for saying that all matters contained in the petition which are material and pertinent to the subject of inquiry should be privileged, that there is for holding that what takes place in the ordinary course o"f justice is absolutely exempt from an action for libel. The same rule as to impunity should be applied in the one case as in the other. Upon this question we cannot better express our views than by’ adopting the just and forcible language of Senator Clinton, used by him in giving his opinion in Thorn v. Blanchard, 5 Johns., 507-580: “ There is a certain class of cases wherein no prosecution for a libel will lie, when the matter contained in it is false and scandalous; as in a petition to a committee of parliament; in articles of the peace, exhibited to justices of the peace; in a presentment of a grand jury; in a proceeding in a regular course [89] of justice; in assigning, on the books of a Quakers’ meeting, reasons for expelling a member; in an exposition of the abuses of a public institution, as in the case of the deputy governor of Greenwich hospital, addressed to the competent authority to administer redress. The policy of the law here steps in and controls the individual rights of redress. The freedom of inquiry, the right of exposing malversation in public men and public institutions, to the proper authority, the importance of punishing offenses, and the danger of silencing inquiry and of affording impunity to guilt, have all combined to shut the door against prosecutions for libels, in cases of that, or of analogous nature." (See the instructive opinion of Justice Cowen, in Howard v. Thompson, 21 Wend., 319). If we are right in holding that a petition addressed to the governor, asking the removal of a person from the office of sheriff, is exempt from an action for libel, there is an end of this case. It is true the plaintiff offered to amend the complaint by averring express malice and want of probable cause in making the charges of official misconduct against him, but this obviously would not help out the case as an action for libel. And if the object of the amendment was to convert the action into one for malicious prosecution, then it was properly denied. For the reasons given we think the judgment of the circuit court must be affirmed. Downer, J., took no part in the decision of this case.