The following opinion on motion for rehearing was filed May 18, 1904. Rehearing denied:
Pound, C.This is a case to which we gave a great deal of time and attention. We thought at the time and still think that the questions upon which counsel for plaintiffs in error strenuously endeavor to procure a ruling are many of them entirely outside of the case. It is stated in the opening of the brief that this case involves:
“Some of the most important legal questions that can be submitted to a judicial tribunal, viz.: The right of the press to discuss and criticise the action of a public officer, and upon the part of that officer his right to refrain from the performance of those duties imposed on him by law.”
The newspaper article complained of, by reason of which counsel thinks the power of a newspaper to criticise a public officer is involved, charges the defendant in error with two crimes, namely, bribery and malfeasance in office. That this is so two extracts from the article will readily demonstrate. The concluding words are as follows: “How much have they had to put up to secure immunity from prosecution by Mr. Shields?” In another place in the article is the following statement:
“It is reliably stated that the evidence has been on hand for weeks that protected gambling was going on unmolested in South Omaha, but the county attorney would not interfere until after election out of apprehension that he might injure the chances of popocratic candidates.”
*760Obviously this is not criticism but on the contrary is a libelous charge of bribery and malfeasance in office. It does not say that the county attorney has not prosecuted certain gamblers when he ought to do so, but it says that hé has failed to do so for political reasons and because money has been “put up to secure immunity from prosecution.”
The distinction between criticism of the acts of a public officer and false and ungrounded charges of criminality is well established. Criticism is always proper, whether by individuals or by newspapers. Newspapers have no monopoly of the right of criticism; nor are their rights in this respect any broader than those of the community in general. Negley v. Farrow, 60 Md. 158. In Townsliend, Slander and Libel, sec. 254, the learned author, after stating that official acts of public functionaries .may be freely criticised, adds that the occasion “will not excuse an aspersive attack upon the character and motive of the officer. To excuse such attack, the truth of the utterances must be shown.” In support of this doctrine he cites Hamilton v. Eno, 81 N. Y. 116. Indeed the reports are full of this distinction. In addition to this case I may call attention to Hallam v. Post Publishing Co., 59 Fed. 530, affirming 55 Fed. 456; Owen v. Dewey, 107 Mich. 67, 65 N. W. 8; Hay v. Reid, 85 Mich. 296, 48 N. W. 507; Cotulla v. Kerr, 74 Tex. 89,11 S. W. 1058; Rowand v. De Camp, 96 Pa. St. 493. In Hallam v. Post Publishing Co. the court say that a defense of privilege is confined to comment and criticism, and does not extend to false assertions of fact. It will not do to say that the article in question does not come within this rule because it sets forth that the facts charged are reliably stated. A repetition of rumors in such cases, without investigation of their truth, is not privileged. Burke v. Mascarich, 81 Cal. 302, 22 Pac. 673; Upton v. Hume, 24 Ore. 420, 33 Pac. 810.
The first ground upon which a rehearing is asked is the refusal of the trial court to give an instruction requested by the plaintiffs in error with respect to the extent of the *761circulation of the newspaper. Counsel’s argument upon this point is based upon a misapprehension of what the trial court charged the jury. The jury were instructed that in passing upon the question of malice they might consider “the extent of publicity” given to the libel. The -article in question was published three times successively —in an evening edition and in the morning and evening editions of the next day. This carrying over of the article from the evening edition of one day to the evening edition of the next has much appearance of being a malicious repetition in order to give greater publicity to the article, and it was to this that the trial court properly directed the attention of the jury. The question of the circulation of the paper bore only upon the amount of damage. No one claimed that extra copies of the paper had been circulated, but only that the libelous article had been given undue repetition. In addition to these three publications, for a considerable time thereafter the paper continued to call attention to the article from day to day by various references and short paragraphs.
It is next claimed that we erred in holding that these subsequent publications were receivable for the purpose of proving malice, for the reason that they were not libelous per se. The cases cited by counsel on this point are not applicable since they present quite a different state of facts. In this case the subsequent publications referred to the charge already made, were plainly intended to have the effect of repetition, and must have had that effect upon all who read them. The third objection is that the eighth instruction of the trial court was erroneous, first, in that it did not instruct the jury that the county attorney had no right to refuse to prosecute upon the advice of the police officers of South Omaha, and, second, because the article in question was wrongfully assumed to charge malfeasance in office. The trial court told the jury expressly that the county attorney had no right or discretion “to refuse to prosecute criminal offenders in deference to the interest of candidates for office in an election campaign, *762or in deference to the interests of any kind of a gang, be it political or for the protection of gambling.” Shields claimed that he consulted the municipal police officers and upon their advice made up his mind that the best method of suppressing gambling was to take another course and hence did not file the complaints he had drawn up. The county attorney, under the present practice, has at least some part of the discretion which formerly resided in the grand jury. If the municipal authorities advise him not to put the county to the expense of prosecution in a particular case and he finds in good faith that the criminal practices in question have ceased and can be prevented by the action of the municipal authorities in the future, in our .opinion he exercises his discretion properly by acting on such advice. Hence we do not think that the plaintiff in error was entitled to an instruction beyond what was given by the court. Moreover, the charge in the article in question was that he refused to prosecute for political reasons and in the interests of candidates for offices, and not that he unwisely exercised a discretion not reposed in him by the law. As to the second objection to the instruction, we need only quote the language of the article itself: “Now he openly proposes to pigeonhole the complaints and the evidence in deference to the interests of the gang” The latter portion of this statement is clearly not criticism but a charge of misuse of his official position for political purposes. It is not an opinion. The article does not say that the author believes such is his reason, nor does he say that the circumstances are such as would create a just suspicion that the reason given may be his real motive. He states emphatically as a matter of fact that such is the reason and motive of the officer’s action.
Finally, it is claimed that the verdict is excessive. Two juries under careful instructions have awarded large sums in this case. We have no doubt that another jury would bring in an equally large verdict. The evidence shows that Mr. Shields had for many years enjoyed the confidence and respect of the community, had been elected to office several *763times and was a member of a profession in which a reputation for honesty and integrity is essential. In view of the character of the charges made against him, the great publicity given to them, and the well known influence of the paper which made them, we are unable to think any case is presented for a reduction of the damages given by the jury.
We therefore recommend that the motion for rehearing be overruled.
Barnes and Oldham, 'CO., concur.By the Court: For the reasons given in the foregoing opinion, the motion-for rehearing is overruled.
Rehearing denied. ■