Dissenting Opinion by
Mr. Justice Jones:The members of the court who heard this appeal are unanimous that the defendant’s letter of January 5, 1951, to William S. Kahauser, District Attorney of Allegheny County, concerning the plaintiff, was libelous per se. We are also unanimous as to the law of privilege which the defendant pleads. As the majority opinion states it, “. . . the Attorney General, when acting officially, and within the scope of his authority, has absolute privilege, protection and immunity from civil liability with respect to his official communications and official acts. . . . this [privilege] . . . becomes unavailable if and when the Attorney General . . . acts in matters outside his jurisdiction or beyond the scope of his powers or duties.” The cases, which the majority cite and analyze in support of the above-quoted legal proposition, are not open to question. My difference with the majority lies alone in their conclusion that, under the facts of this case, the defendant is entitled to absolute privilege as a defense to his libel. It is my *206opinion that the Attorney General, in writing and posting his letter of January 5th to Bahauser, acted “outside his jurisdiction and beyond the scope of his powers or duties” and that, consequently, he is entitled to no more than conditional privilege.
Just twelve days after publication of the libelous letter of January 5th, the defendant as Attorney General undertook to conduct a public hearing in a courtroom of the Court of Common Pleas of Allegheny County “into the alleged communistic leanings, sympathies and utterances of Mrs. Marjorie Hanson Mat-son, Assistant District Attorney of Allegheny County.” On the day fixed for the Attorney General’s hearing, the Court of Common Pleas of Allegheny County, upon the complaint of Mrs. Matson, issued a preliminary injunction enjoining the deputies, by whom the Attorney General was then acting, from conducting the scheduled hearing. On appeal, we affirmed: Matson v. Jackson, 368 Pa. 283, 83 A. 2d 134.
That the inquiry into Mrs. Matson’s alleged “communistic leanings, sympathies and utterances” by means of the proposed hearing was not within the scope of the Attorney General’s powers or duties, we unmistakably confirmed in Matson v. Jackson, supra. First, we upheld the Allegheny County court’s jurisdiction of the injunction suit. Had the Attorney General been proceeding within the scope of his official duties, only the Court of Common Pleas of Dauphin County would have had jurisdiction of the suit against his deputies: Act of May 26, 1931, P.L. 191. Second, in a well-considered opinion by Mr. Justice Stern, we held on the merits that conducting such a hearing was not within the powers or duties of the Attorney General under “any of the provisions of the-Administrative Code”- or under the common- law.- This -latter conclusion is implicit in our answer (p. 289 ) to the argument- then being made *207for the Attorney General that the power to hold such a hearing was but a preliminary to a possible exercise of his power to supersede the District Attorney, which power this court had theretofore held (Margiotti Appeal, 365 Pa. 330, 332, 75 A. 2d 465) to be derived from the common law. With reference to the power of super-session Mr. Justice Steen pertinently said, — “Certainly it was never, by the broadest stretch of imagination, regarded as including the right of the Attorney General to examine into the general qualifications, views and competence of a duly elected District Attorney, or one of his assistants, as a basis for supplanting him and thenceforth conducting the office by his own deputies.”1
The majority’s conclusion in the instant case that the Attorney General’s letter of January 5th to District Attorney Rahauser was within his official powers or duties ignores the necessary implications and effect of our decision in Matson v. Jackson, supra. If the Attorney General was without power, as we there decided, to hold a hearing on the alleged “communistic leanings, sympathies and utterances” of Mrs. Matson, it was equally no part of his official powers or duties to write the letter containing the charges concerning which he proposed to hold the hearing.
The letter of January 5, 1951, here involved, was no more an exercise or discharge of a poAver or duty reposed in the Attorney General by law than was his attempted hearing which Matson v. Jackson enjoined. In the Attorney General’s succeeding letter to District *208Attorney Bahauser on January 17, 1951, announcing the hearing which he had scheduled, he said “The purpose behind this hearing is to clarify the issues that have previously been presented to you [see letter of January 5, 1951] and to develop any further evidence on this subject” (Emphasis supplied). We directly held, however, that “The proposed hearing in this case was wholly without legal power or authority on the part of the Attorney General.” Since the Attorney General “was wholly without legal power or authority” to clarify the charges of his letter of January 5th or to develop “further evidence” in regard thereto, a fortiori, he was not acting within his jurisdiction and duties when he made the charges. He, of course, had a right, like any other citizen, to inform the district attorney of anything he knew concerning the former’s assistants or office that he deemed harmful to the public service. But, in so doing, he was not acting because of any official duty devolving upon him.
Moreover, the charges in the letter of January 5th were made for the purpose, as the letter itself reveals, of supporting the Attorney General’s “demand that Mrs. Matson be dismissed from her position as Assistant District Attorney in Allegheny County,” — a power which he did not possess. The majority opinion frankly concedes that “We are all unanimously of the opinion that the Attorney General has no right or power to discharge or to compel a district attorney to discharge an assistant district attorney from her official position or from duties, matters or cases outside of the case or matter in which the Attorney General has superseded the district attorney,” citing Matson v. Jackson and other authority. Admittedly, the exception noted is not present in this case. Since the purpose of the letter of January 5th was to bring about Mrs. Matson’s dismissal as an assistant district attorney and since *209the Attorney General had no legal power to effect such a result, it was likewise no part of his official powers or duties to make the charges in substantiation of the “demand” which he did not have legal authority to make.
Nor can the letter be otherwise justified as an official act. It was no more in aid of an execution of the laws of the Commonwealth than was the proposed hearing. The plain purpose of the letter of January 5th being, as already stated, to compel Mrs. Matson’s dismissal as an assistant district attorney, the reason for the Attorney General’s effort to that end becomes relevant. He did not charge that she had violated any law; nor did he purport to be investigating violations of the law. He gave as his reason for demanding Mrs. Matson’s dismissal that “it appears obvious that her Communistic associations render her unfit to hold this position.” This reason is referable alone to the “'qualifications, views and competence” of the assistant district attorney, — -a field not open to the Attorney General even in a case where he has superseded the district attorney: see Matson v. Jackson, supra, at p. 289.
Furthermore, the Attorney General cannot be thought to have been acting within the scope of his powers and duties when he independently published the libel contained in his letter of January 5th before he had put it in due course of transmission for the accomplishment of any legitimate purpose. If that be not so, then the doctrine of absolute privilege will be extended far beyond any conscionable limits and become an aid to persecution in the hands of the unscrupulous. I well recognize that, where a public officer, acting within the scope of his lawful authority, libels another, the fact that he acts maliciously does not deprive him of absolute privilege: see, e.g., Spalding v. Vilas, 161 U.S. *210483, 499; and Glass v. Ickes, 117 F. 2d 273, 276 (C.A.D.C.). In other words, when an officer acts within the scope of his powers and duties, his motive does not become a material consideration. But, that does not mean that a public official can deliberately publish a libel and then obtain absolute privilege by subsequently subjoining an official act in the same connection. The difference between cases such as the Spalding and Glass cases, supra, and the present is that in the former the officer acted first in performance of his official duty and the alleged libel was an incidental concomitant. In the latter, he libels first and then acts in respect of what he asserts is official.
Notwithstanding that the letter of January 5th cannot, on the basis of any of our prior cases (especially Matson v. Jackson), be found to be an official act of the Attorney General, the majority appear content to reiterate dicta to the effect that the powers of the Attorney General are “wide and vast” and, on the basis of this broad generality, hold that the libelous letter was “written [by the Attorney General] in the course and within the scope of his powers.” I readily agree that the powers and duties of the Attorney General are many and important. But, merely describing them by expansive adjectives should not be availed of to make an official act out of conduct which, under our decisions, should be found not to be within the powers or duties of the Attorney General.
To say that the Attorney General’s powers are “wide and vast” puts no limitation whatsoever on them. It is tantamount to saying that they are limitless. That being so, with the current decision of this court extant, the Attorney General (a mere appointive officer) will henceforth enjoy absolute privilege for any and all of his writings so long as he uses his official stationery and signs himself with descriptive designation of his *211office. He can even libel Ms appointor, the Governor, with impunity. What Mr. Justice Steen further said in Matson v. Jackson (at p. 288) is apposite here,— “. . . we have already pointed out that the proposed hearing cannot be justified as an aid to the execution or enforcement of the laws. Indeed a contrary view would be equivalent to holding that the Attorney General is vested with the power to conduct hearings as to the political, economic and social views of every public officer in the Commonwealth entrusted with the execution of the laws, from the Governor himself down to the least important officials, including even those duly elected, in order to ascertain whether, in his opinion, they are fit and competent to perform their respective duties in enforcing the laws, — a proposition the very statement of which illustrates its inherent absurdity.” The vice of overextending by court decision the powers of the Attorney General would be bad enough if the possible harm were confined to acts of that officer, but what the majority opinion now construes to be within his powers will, to a relative degree, be among the powers of every prosecuting officer in the Commonwealth within the territorial confines of his jurisdiction. It is disturbing, to say the least, to contemplate the potential evils.
But, more disquieting still is the evident facility with which the majority virtually repudiate the well-considered unanimous opinion for the full membership of this court in Matson v. Jackson, supra, of a little less than a year ago. That case and the present are not distinguishable in principle so far as the scope of the Attorney General’s official duties is concerned. Nor does the majority opinion attempt any serious differentiation of the two cases. When read in conjunction with the decision in Matson v. Jackson, the majority opinion in the instant case places this court in *212the anomalous position of holding that the Attorney General lacks official power to inquire into and investigate what the majority now say he had an official duty to charge.
It was, of course, the Attorney General’s right to communicate to the District Attorney anything he knew; in relation to his assistants or the conduct of his office which the Attorney General thought might be inimical to the public interest. It is equally the right of every other public official and of every private citizen, for that matter, to do likewise. But, in so acting, such persons (including the Attorney General) enjoy only conditional privilege as a defense to their incidental libels. Once the libel is established prima facie, it becomes the duty of the person charged therewith to allege and prove that the “publication [was made] upon a proper occasion, from a proper motive, in a proper manner and [was] based upon reasonable or probable cause”: see Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 645, 41 A. 2d 736, and cases there cited. The letter in question being libelous per se and the defendant enjoying only conditional privilege in the circumstances, it was error for the court below to sustain the preliminary objections and dismiss the complaint.
I would reverse with a procedendo.
Mr. Justice Chidsey joins in this dissent.Matson v. Jackson, supra, was handed, down June 27, 1951. The learned court below did not, therefore, have the benefit of that decision when, on May 29, 1951, it sustained the defendant’s preliminary objections to the plaintiff’s complaint in the instant case. Both the majority and concurring opinions in the court below drew the requisite all-embraeive “powers” of the Attorney General from his power of supersession, — a proposition which we flatly rejected in Matson v. Jackson.