dissenting.
The thing charged in the article published and on which the action for damages is based is, in substance, the cooperation' of the courts and gamblers in the temple of justice, that is, in the court house. The Erdman case is referred to, and it was claimed in the article published that that case was a “frame-up,” that is,- a prosecution for an alleged crime without any evidence or reason upon which to found it. The conclusion must be from these statements that Judge Estelle and the gamblers tried Erdman and secured his conviction and sent him to the penitentiary when they knew he was not guilty; the judge fixing the penalty at 15 years in prison: This is official corruption, and if Judge Estelle is guilty he should be condemned by everybody and be imprisoned and disbarred, and sent to the penitentiary himself. On the other hand, if a great newspaper like the Omaha Daily News makes a charge of this kind against a judge who is a candidate for re-election, and thereby seeks to defeat him, it should know that the charge is well founded, or, at least, have substantial reason to believe that it is well founded. If *419such a charge is made without reason, it is indefensible. Of course, the newspaper has a right to defend itself; but if it does the Avrong complained of, it should be severely punished. As it is a corporation, there is no way to get at it, except to inflict the payment of damages upon it. If a newspaper publishes a charge of this kind without sufficient justification, it thereby is likely to defraud the voters out of an honest choice. The voter is interested in the selection of the judge. To charge that the judge is corrupt is to tell the voter that the judge is unfit for office, and that he ought to be defeated. Judge Estelle had held the office of judge of the district court in Omaha for a great many years. He desired to be nominated and re-elected, and he became a candidate. While he was nominated and re-elected, the publication of this matter probably cut doAvn his majority very much. Many Alters doubtless declined to vote for Judge Estelle and voted against him because of what they suav in the NeAvs. There may be s'omething of a belief that, if a man becomes a candidate for any office, the public have a right to make him run the gauntlet and to stick splinters into him which are on fire. The AVriter remembers that Abraham Lincoln was charged when he was first a candidate for president with being a very bad man, a blackguard, a clown, a man without patriotism. He was held to be a man of low character beneath the consideration of respectable people. Nothing too opprobrious could be said of him. As a matter of fact, he was a leading lawyer in the little city in which he lived. He was a strong politician. He was a born statesman. He Avas patriotic to an infinite degree. He had superb courage, and with the logic of a statesman he combined that beauty of expression which is seldom found, except with poets and men Avho love literature in the highest degree. Ever since the day he was assassinated his memory has been eulogized by the people of the United States and the intelligence of the world. I know of no good reason why a candidate should be held up to the public gaze as a malefactor. It is time that there *420should he a reform. There will never he a reform unless it commences somewhere. We have just as much right to commence here as our grandsons will have when they become old enough to be charged with the responsibility of government. When we can truthfully charge our judges with official corruption on the bench, we indicate that there is no certainty in government and that the depths of dishonesty are all about us.
In Battles v. Tyson, 77 Neb. 563, the article complained of read: “I want it understood that I am not running a gambling house, and that if a girl could not have decent company she has no business to have company at all; that she had three men in her room with her. * * * She was locked up in her room with three men in my house, and after they had gone I found an empty whiskey bottle on her table.” In that case it was held that the meaning of the words intended by the defendant and the under: standing of those who heard him should be left to the jury. The petition which charged the use of the words above set forth was held to charge a cause of action, and the judgment of the district court sustaining a demurrer to the petition was reversed.
It is contended by the appellant that the several sentences which are preliminary to the main charge of cooperation and dishonesty in the conviction of Erdman are not, taken by themselves, libelous. It is also said that they cannot be used to add a meaning to the words which make up the charge of corruption and dishonesty on the part of Estelle in the discharge of official acts belonging to the office of judge. The contention seems hypercritical. It is not fair to take up these sentences one at a time and discuss them as if they were not connected with each other, and as if they were also not connected with the charge of official corruption. In the article is the language: “I am opposed to the renomination of District Court Judge Lee S. Estelle because I believe he is for the special interests and against the people.” It is said that the foregoing is not libelous. Standing by itself, there is no objection to *421it. It might state a reason why the voters should not support the candidate. The mere fact that Estelle took sides in his personal belief against one party and in favor of another would not charge anything of a criminal or dishonest nature. But it should be remembered that the apparent purposes of this introductory sentence was to involve Estelle with the “third ward crowd.” It is said in the article: “I am opposed to his (Estelle’s) renomination because I believe he is for the third ward crowd and against their molestation.” This clinches the matter. The purpose of the article is to identify Estelle with the special interests, and then to show that the special interests are the “third ward crowd,” and on top of that to show that. the “third ward crowd” are living in a “carnival of crime,” that is, that they stand for the violation of the law. The Erdman case is described in that article as a “frame-up.” It is seemingly meant by that that it is without foundation,* that the real offense which Erdman had committed was not a violation of any law, but an interruption of the “third ward crowd” in the “carnival of crime” which it is claimed that they enjoyed. Estelle’s co-operation with the third" ward people in their alleged “frame-up” against Erdman is inseparably connected with the whole story. Each sentence describes a step in the alleged corrupt purpose and conduct of Estelle in the prosecution, conviction and sentence of Erdman.
Estelle is charged with not allowing Mr. J. W. Miller to sit on the jury. The language used is: “Mr. J. W. Miller, educational director of the Y. M. C. A, was not allowed to sit on the jury. A single man of his type would have blocked the game.” The implied charge here is that Miller is an honest man, and that he would have prevented the conviction of Erdman if he had been allowed to sit as a juror, but that Estelle, being dishonest and corrupt, and being engaged in carrying out the plan of the “third ward crowd,” sustained the challenge to Mr. Miller on his voir dire examination. Nothing could be more libelous than this. Estelle was charged with being the willing tool of *422a body of men engaged in carrying out a criminal conspiracy. The article purports to deal with the trial. It was a trial where Estelle presided as judge. He is described as making a ruling in his capacity as judge. This ruling is claimed to be part of the conspiracy. It is a step toward the conviction of Erdman in a case where there is an alleged “frame-up,” that is, a charge against a man on trial which is without evidence to support it. Estelle, according to the article, is made a tool of an alleged band of lawless gamblers engaged in protecting vice. The conclusion is that Estelle and the gamblers fixed up the job on Erdman and sent him to the penitentiary for 15 years.
In the opinion it is said, in substance, that the exclusion of Miller as a juror could properly be considered by the public in determining whether the judge acted honestly or corruptly. To leave the uneducated populace to determine whether the exclusion of a proposed juryman is according to law is to rob the courts of the power which they are bound to exercise in the protection of litigants and those charged with the violation of the law. The policy of allowing men who are uneducated in the law to determine whether a proposed juror has been rightfully excluded on his voir dire examination may certainly well be doubted, and it should not be permitted where there is no fact upon which to base it.
The case of Thomas v. Shea, 90 Neb. 823, is not unlike the instant case. This court held the publication to be libelous per se as a matter of law. The same need to protect Thomas in that case and to punish the offender exists in this case. We should be as willing to protect a judge from a charge of dishonesty and corruption- as we are to protect a lawyer. Thomas was a lawyer. In that case the libel was published a few days before the general election in 1908. The defendant was a member of the county board of Harlan county, and the plaintiff was a candidate to succeed himself as county attorney. He was the candidate of the democratic, people’s independent and repub*423lican parties. The statement in the opinion is that the libel in that case is a six-column document resembling in appearance the front page of a metropolitan daily. The paper was addressed, “To the Taxpayers of TIarlan County.” There was in it the statement that the plaintiff would never have received the nomination of any party had the honest citizens of Harlan county known how he served them as county attorney during the past two years. There was then a description of five cases, in each of which it was charged that Thomas had neglected his duty and done something which resulted in disaster, and the reason of it was the fault of county attorney Thomas. The article said that he had gone into the five cases, which are described, and had found facts sufficient to “convince any fair man that County Attorney Thomas, in the five cases cited, gave the county, who pays him his monthly salary, the worst end of the- bargain. And, as a matter of fact, Mr. Thomas could not have rendered a greater service to the opposition had he been actually retained by them and accepted their money. * * ' * But history chronicles successful revolutions. Should this revolution be brought about, the .taxpayers of Harlan county will witness a grand exodus of jury fixers, political porch climbers and petty criminals such as this county never witnessed before in its history.”
The defendant admitted in his answer that he caused the article to be printed and distributed throughout Harlan county. He also did just what was done in this case. He pleaded that the plaintiff was a candidate for the office of county attorney, and that the publication was a “privileged communication.” Then there is an allegation that it was published without malice, and that the communication was made to the electors of the county in good faith for the sole purpose of advising them of the real character and qualifications of the plaintiff for the office he was then seeking. It was a little printing office that published the libel in the case of Thomas v. Shea. It is a big printing office that publishes the libel, if there is a libel, *424in the case of Estelle v. Omaha, Daily News Publishing Co. The principle is probably very much the saíne whether the newspaper is big or little, and whether the procurer of the publication is an editor or a member of the county board.
It was said of the facts in Thomas v. Shea, supra, that the evidence justified the findings that the plaintiff had not neglected his official duties to the injury of the county, and that all statements reflecting upon his integrity, motives and conduct, or upon his ability and uprightness, were false. “The entire publication was a vicious assault .upon.the plaintiff in his profession of attorney at law. It strikes at his means of livelihood. .If the accusations are true, he is unfit to be county attorney or to act professionally for an honest client. Those who believe the charges will not employ him, if they want honest service.” The logic in the Shea case is conclusive and unanswerable. The only trouble seems to be that we are less willing to protect Judge Estelle than we were to protect county attorney Thomas. It may be that the refinements of learning make a visible distinction between the two cases.
In Sucha v. Sprecher, 84 Neb. 241, the plaintiff requested the court to instruct the jury that the publication in question was libelous per se, and to find a verdict for the plaintiff for at least some amount. The request was refused, and the court in paragraph 4 of its own instructions, allowed the jury to determine whether the article, by giving its language a fair, ordinary and reasonable construction, would be understood by the ordinary reader as charging, or intending to charge, the plaintiff with official misconduct, or misconduct in office. The jury returned a verdict for the defendant, and the plaintiff brought the case to this court on appeal. It was stated in the argument that the language of the publication in question was susceptible of two interpretations, one of which would not render it libelous per se. This court said: “This being so, its nature and effect, considered in the light of the evidence, *425was properly submitted to the jury.” This court affirmed the judgment of the court below.
In Spencer v. Minnick, 41 Okla. 613, it is said: “A man cannot libel another by the publication of language, the meaning and damaging effect of which is clear to all men, and where the identity of the person meant cannot be doubted, and then escape liability through the use of a question mark.”
That the language used in the instant case means dishonesty and official corruption, see the opinion of the United States supreme court in Baker v. Warner, 231 U. S. 588. In that case the plaintiff was the United States attorney for the District of Columbia.
In Bee Publishing Co. v. Shields, 68 Neb. 750, this court has rendered two instructive opinions. In the first one, which was prepared by iCommissioner Oldham, it is said, quoting Neeb v. Hope, 111 Pa. St. 145: “An occasion of privilege will not justify false and groundless imputations of wicked motives or of crime. The conduct of public officers is open to public criticism, and it is for the interest of society that their acts may be freely published with fitting comments and strictures. But a line must be drawn between hostile criticism upon public conduct and the imputation of bad motives, or of criminal offenses, where such motives or offenses cannot be justly and reasonably inferred from the conduct.” In that case it was further said: “One must not take advantage of a privileged occasion to exhibit malice toward and to unlawfully and wrongfully injure another by publishing false and defamatory matter concerning him, and that if he does so he forfeits the privilege occasioned and becomes a libeler subject to the ordinary rules of law relating thereto.”
The business of a lawyer depends largely upon his reputation in the county and state in which he lives and conducts his practice. If he is a man of ill repute, his business is little and insignificant. If he is doing a good business and is a man of high standing, he will have a chance to earn money enough to support his family, to educate *426his children, to start them in life, and possibly enough to enable him to travel or to devote a part of his time to literature or politics. These are the things in life which we value. To tear a lawyer’s reputation down by the publication of defamatory matter is an affair of the most serious consequences. His business is destroyed. His ability to support his family and to educate his children is taken away from him, and he stands in the community as one of ill repute having no character to protect. Nearly every lawyer has an ambition to occupy the bench. If he becomes one of the judges of a court of general jurisdiction, or of an appellate court, he is flattered because his neighbors have trusted him to settle their disputes. No lawyer may have a higher ambition than the ambition to serve as a judge of one of the courts of general jurisdiction. In order to run for the position of judge, it is too much to ask of a lawyer that he shall be willing to stand up with a list of inalefactors and wrongdoers. What right has a man who engages in the publication of a newspaper to rob a lawyer or a judge of all that he has that is valuable to him in a professional way? If a man steals my horse, he only takes away from me a month’s labor, perhaps it is only a week’s labor, but, if he takes away from me my reputation as a lawyer or a judge, he deprives me of earning a livelihood. If he does that, he costs me thousands of dollars. If he takes away from me my reputation as a judge, I can never recover from the injury. If he sets fire to my house and burns it down, I can rebuild it with the earnings of a year, but, if he takes away from me my reputation for honesty and integrity, I can never rebuild it; I am ruined for life, and my children are scandalized. This sort of thing can be done with any man who is practicing our profession. I do not care how honest or how capable he may be. A big newspaper circulates in all of the 93 counties of the state. It reaches readers in every town and village. It comes every day. If you or I should be attacked by a newspaper of this sort, we have only time in our short lives to see a small portion *427of the residents of the state. The man with his big newspaper has capital behind him; he may have $200,000 or $300,000 behind him; with that he can encompass our destruction. If he can excuse himself in an action brought against him for damages by saying that somebody told, him that we were bad men, then he can destroy anybody. He can start a lie with his henchmen, and then repeat it in his newspaper. The effect of a decision of the sort sought to be rendered in this case is to license the robber with his newspaper so that he may kill and destroy. One running for a local office in a small territory may be able to defend himself against newspaper attack because there are not so many people but that he may go and see them, hut he is powerless as against a newspaper with a big circulation. The voter has a right to know that his candidate will be fairly treated, and that the voter will not be robbed or deceived. It should be an honest fight. Be careful you do not lay down a rule here which will invite and justify the destruction of your sons.
Mr. Fellman in his article speaks of peril to himself and his little ones if he raises his voice “against the cohabitation of the gamblers and the courts in the temple of justice.” To draw a picture of himself and his little ones in peril because he lifts his voice against the alleged improper relations of the gamblers and the court (Judge Estelle) in the temple of justice (court-house) is one of the tricks of oratory. No judge except Estelle was spoken of or intended, and Fellman was after Estelle. A libel should be read just like any other printed page, and it is artificial construction to cut it up into alleged innuendoes, and then to profess doubts about what these mysterious innuendoes may mean. The News published the article, and it is clearly libelous, and no condition existed to make its publication one of qualified privilege. According to their own story, Fellman and the editor of the paper did not believe that Estelle was corrupt.
If it was erroneous to permit the plaintiff to prove that the directors of the defendant publishing company *428were nonresidents of the state of Nebraska; yet I am unable to see how it could injure the company in any way. Unless there was injury to the company in the admission of this testimony, it was error without prejudice. The evidence is insufficient to justify the rule laid down .in the opinion and the syllabus touching the doctrine of qualified privilege. The judgment of the district court should be affirmed.
The record fails to disclose evidence justifying Fellman in writing the letter and causing it to be published, and the News Publishing Company published the letter without having evidence to justify the same. Apparently the defendant publishing company acted maliciously in publishing the letter, whatever the actual fact may be.
The judgment of the district court in favor of the plaintiff should be affirmed. I adopt the dissenting opinion of Justice Barnes, except as it is herein modified.