(dissenting). This is a political libel suit, a common nuisance case. Three times it has come before this court: (1) On appeal from an order overruling a demurrer to the complaint; (2) a motion *682tor a stay of proceedings pending an appeal; (3) an appeal from an order denying a change of venue. The libel is this:
“Tánger Wants Control.
“It became clear early in the referendum campaign that two factions were seeking control of the I. Y. A. One was headed by Attorney General Tánger and the other by President Everson. Tánger visited heads of Minneapolis and St. Paul corporations that are financing the I. V. A. early this year and demanded that he be made custodian of the slush funds that were expected in North Dakota. His record was against him, and these gentlemen turned him down, though politely. Because of this Tánger is sore, it was said yesterday, and is attempting to build up a machine of his own.”
The false innuendo is to this effect: That the purpose and meaning of the libel was to affirm that Tánger sought the slush fund to bribe voters at the general election and to corrupt the press, and that it was so understood by those who read the libel. Now that innuendo is clearly false, and yet it is the basis of the action. The libel does not admit of any such understanding. It in no manner indicates that Tánger sought the fund for other than legitimate campaign purposes. And without that false innuendo, the complaint would not have been sustained, as it was, by three judges of our court. In two more recent cases the judges have held that even on a demurrer they will not longer hold as true that which they know to be false. All that has a direct bearing on the way in which Judge Allen used his discretion on the motion for a change of venue and a stay.
Pending an appeal from the order denying a change of venue, the court and counsel made preparations to rush the case to trial, and even put it on the peremptory call of the trial calendar. Hence counsel took fright and rushed to this court with á motion for a stay, and he was told that the motion might well be intrusted to the discretion of Judge Allen. Then Judge Allen heard the motion and allowed a stay on five conditions: (1) That within 10 days defendants give a bond in the sum of $2,000 to pay any judgment plaintiff may recover pursuant to the order of Judge Cole made as a condition of granting leave to answer. (2) That within 10 days defendants give a bond -in the sum of $5,000 to pay any judgment plaintiff may recover. (3) That within xo days defendants prepare and present to the court for settlement a statement of the case. (4) That within 10 days after settlement defendants complete *683the appeal and cause the record to be transmitted to the Supreme Court with defendants’ brief. (5) That within 10 days defendants pay to plaintiff’s attorney $100 to reimburse plaintiff for expenses in preparing for the trial. This order and those conditions were so manifestly arbitrary and illegal, unjust and oppressive that the Chief Justice of this court ordered a stay. Now1 the fair conclusion is that in denying the change of venue and in at once putting the case on the peremptory call of the trial calendar and in denying the stay, unless on such arbitrary conditions, and in all that he did in the matter, Judge Allen did not exercise a fair judicial discretion. And the distinguished lawyers did not deal fairly with the judge in urging or influencing him to do such things. Hence it behooves this court to consider the appeal on its merits and not on false presumptions.
The Merits.
Without the false innuendo the complaint did not state a cause of action. McCue Case, 39 N. D. 190, 167 NL W. 225.
The action is mainly political, and it may fairly be presumed that every political partisan will incline to the side of his party leader. Twice Mr. Tánger has been elected to the office of Attorney General as a candidate of the Teague party. When he broke with his party in 1919 and became the leader of the opposition, of course it led to bitterness, abuse, and mudslinging. Mr. Tánger spent about six months going over the state and denouncing the leaders of the Teague and the defendants. By the newspapers and the voters in Richland and in Cass counties he was strenuously sustained. In 1920 at the primary election the vote for Governor was as follows:
In the State — Frazier ................................................................... 59*355
“ “ “ Tánger .................................................................... 53,941
In Cass County — Frazier................................................................ 2,620
“ , “ “ Tánger .................................................................... 4,521
In Richland County — Frazier ....................................................... 1,182
“ “ Tánger .......................................................... 1,941
Barnes County — Frazier ................................................................ 1*712
<4 “ Tánger .................................................................. 1,810
This shows the pull and influence of the Wahpeton newspapers, the Fargo Forum, and the Grand Forks Herald. The old liners of Wahpeton make affidavits and move heaven and earth to prevent a fair trial in a county where great political bias does not prevail.
*684True counsel insists that in such a large county as Richland there must be many that are in no way prejudiced — and that is true; but it might be quite difficult to find them. And then it is true that a little leaven leaveneth the whole lump, and that at Wahpeton the leaven of prejudice against the Teague party is active and powerful. A fair-minded person brought to Wahpeton might quickly be infected by the leaven of prejudice. The case would be wholly different if it were a personal and not a political action. Were this an action on contract or an action with no political flavor, it never would have developed the rancor and bitterness and lack of professional courtesy shown in this case. An ordinary personal action does not appeal to the prejudice of either judges or jurors, but that is not true of a political action between political bosses or chieftains or of any action between clerical chieftains or bishops, especially on matters relating to their creeds.
Counsel insist that the motion for a change of venue was addressed to the discretion of the trial judge — and that is true. And so was the motion for a stay of proceedings pending the appeal. It was addressed to the discretion, and we have seen how that discretion was used. The facts are that most judges are not above the leaven of prejudice and some attorneys are not above using it. Now it is needless to prolong the discussion. It must be conceded that the defendants are entitled to a fair trial and that the chances are ten to one they cannot have a fair trial in Richland county. Hence the order denying a change of place of trial should be reversed, and as Valley City, in Barnes county, is convenient to all the parties, and as it appears the people are not so intensely partisan, the court should order that the place of trial be changed to Barnes county.