The above cause presents some important questions which were raised on the trial in the court below, by the instructions given for appellee by the court, and also instructions refused for appellant. The instructions will be noticed hereafter in the opinion, so far as is necessary. In the first place, were the various matters set out in the 1st, 2d, and 3d counts of the declaration as the basis of the action libelous, saving the allegation in the 2d count of the false charge of appellee in the Webster case? Secondly, considering the alleged libelous matters set out in those counts read in connection with its context, to be found in the whole article containing such matter, is it clear that they are at all libelous?
May they not reasonably be construed to be innocent and harmless, either to impute to appellee perjury, larceny, false swearing, the making false reports, or any of the misbehaviors charged in the declaration? Thirdly, if it be doubtful as to the true meaning of the words charged, when considered in connection with all the words contained in the publication on the same subject, is it a question for the court or jury to decide what is really charged against appellee?
As to the first: whether the matter set out in the three counts has a defamatory meaning depends upon what construction is given to the whole communication including the words not set out in the declaration.
When this is determined, it is a question for the court, and not the jury, to decide, whether the publication is actionable or not. The words set out in the first count, by themselves unaided by the words not set out, directly charge upon appellee that he had made a false report under oath in his report to the superintendent of schools, in stating that he as State’s attorney had prosecuted twelve offenses against Henry Blank to conviction, and had charged a fee of five dollars for each, together with his commissions of ten per cent, on the amount of the fine, when in fact he had only convicted Henry Blank of two charges. But upon examination of the remainder of the communication relative to the matter pleaded in the count, it certainly tends to explain and modify it. It then becomes a question, and we think a debatable one, as to the meaning of the alleged libel. May it not me^n when fairly considered, that the appellee made a false report under oath to the superintendent of schools, in this: that he had reported himself entitled to twelve conviction fees of five dollars each in two suits against Henry Blank, when he was in fact entitled to but two, one in each case; for the reason that while it was admitted that there were six counts in each of the two indictments, and the appellee as State’s attorney convicted Blank on each one of the counts, yet by law the State’s attorney as was claimed, was not entitled to charge for the conviction on each count, but only for each case, making an overcharge of §50 % That his report under oath as regards the commission on the fine collected from Henry Blank was false in that, the State’s attorney was not authorized by law to charge commissions until he had collected the money and paid it in to the superintendent of schools, the latter of which had not been done in that case. (Reference was made to R. S. 1874, p. 502, Sec. 8.) This appears in the communication. Such a publication as the latter construction implies would not be defamatory. The hearer or reader of it would know that appellee had been guilty of no wrongful or illegal act, and that appellee only showed himself mistaken in the law. The same may be said of the matters complained of in the second count of the declaration; in that the wrong consisted in charging for two conviction fees in a criminal suit against two joint defendants, where both were convicted, and it was charged appellee was (entitled to no commissions, for the same reason above stated. The matter considered together is liable to this interpretation.
If this be the true meaning of the publication,, appellee could not be harmed because he had a legal right to charge for the conviction of each defendant; hence he could lawfully and truthfully make the report, which he did. “ In cases of slander, however positive may be the charge, if it is accompanied with words that qualify the meaning, and show to the bystanders that the act imputed is not criminal, this is no slander, since the charge taken together does not convey to the minds of those who hear it an imputation of criminal conduct.” Cooley on Torts, 199. Ayres v. Grider, 15 Ill. 37; Miller v. Johnson, 79 Ill. 58.
It is a principle of law that “words alleged to he libelous will receive an innocent construction if they are fairly susceptible of it.” Cooley on Torts, page 208, and cases cited in note.
What is the true meaning, and who is to determine it, will now be considered : It is a general rule that in all civil suits the question of libel or no libel, when it arises solely on the face of the publication, is a question upon which the jury must follow the directions of the court. Hilliard on Torts, page 288, Sec. 52, Chap. VII. But this rule has its exceptions. Where it is uncertain when they convey a defamatory implication, the question is one for the jury.” Cooley on Torts, page 208, and cases cited in note. Hilliard on Torts, pages 289, 291, secs. 53, 54 and 55, Chap. 7.
In this cause we think it is fairly a question for the jury, and the question of the meaning of the publication should have been left to the jury under a proper instruction by the court. The court should define in its instruction what the meaning sought to be attached to the communication by appellee is, and that if the publication was made in that sense then it would be libel, but the reverse if the more innocent construction be given. Then it would not be actionable, and the jury should be given the determination of that question. Hilliard on Torts, Sec. 55, Chap. 7, page 291, and eases cited.
The eleventh instruction given for appellee was faulty, in not announcing with certainty the proper rule.
Another important question arises in this case : the question of whether the remonstrance to the supervisors was a privileged communication. It was signed and presented to the board and is the foundation of this action. Upon this question it may be said there are communications that are absolutely privileged, upon which no action for defamation can be based, even though malice be charged, such as words spoken in a judicial proceeding; testimony given by a witness in a court; and words spoken in a legislative body by its members in matters pertaining to the subject of legislation. Then, again, there is a class of communications that are only conditionally privileged. This rule applies to petitions, applications and remonstrances of all sorts addressed by the citizens to any officer or official body. Many others might be enumerated. Cooley on Torts,' 214. The cases only conditionally privileged are those in which the utterances or publication is on a lawful occasion, which fully protects it unless the occasion has been abused to gratify malice or ill will, and no action will lie unless it is shown to be both false and malicious. Cooley on Torts, 214. Whitney v. Allen, 62 Ill. 472.
“ The proper meaning of privileged communications is only that the occasion on which the communication was made, rebuts the inference of malice prima facie arising trom a statement prejudicial to the character of the plaintiff, and puts it on him to prove that there was malice in fact, i. e. that the defendant was actuated by motives of personal spite, or ill will, independent of the occasion on which the communication was made. This may be established by the communication itself, by showing it was made in violent and abusive terms, and that the words used are stronger than the occasion justified. The jury are entitled to read the writing in order to judge of its character.” Addison on Torts, 781. Other evidence no doubt may be given to show the existence of actual malice.
The instructions given by the court to the jury on the part of appellee, and especially the twelfth, proceeded on a different theory, and to that extent were erroneous. It is stated as a reason in the latter instruction, why the communication was not privileged, “that the board of supervisors was not a proper or legal tribunal to investigate the conduct of the State’s attorney.” That in one sense may be true, yet the appellee had presented a large claim against the county for allowance by the board. The board had a right to investigate the action of the State’s attorney with reference to its allowance, for it was not a claim the law compelled them to pay, and the tax-payer-had a right to remonstrate against its ¡Dayment, and show reasons why it should not be paid if done without actual malice.
Was the matter set out in the 4th count of the declaration variant from the proof %
It is charged in that count that the libel consisted in saying of the State’s attorney that money had been paid out for “attorney’s fee in the case of The People v. The P. K. & P. R. R. Co. in the Circuit Court, because of the incompetency of the State’s attorney to perform the duties of States attorney.” The communication was, “because of the incompetency of the State’s attorney to perform such duties.” The charge set out in the declaration implies general incompetency as well in that case as all other duties of the office. The publication charges incompetency in suits like that one. We therefore think there was a variance.
The evidence of Loring was improper. There was no justification by any plea against any crime of perjury or offense involving the question of motive on part of appellee. The pleas of justification averred only false swearing and'false report, and not perjury. The court erred in not excluding it. The judgment is reversed and cause remanded.
[Eeversed and remanded.
Pillsbury, P. J.,having, in the court below, passed upon some questions made upon the pleadings, took no part in the decision of the cause in this court.