W. Harrelson YANCEY
v.
David E. GILLESPIE and Spindle City Publishing Company, Inc.
No. 523.
Supreme Court of North Carolina.
May 4, 1955.*211 G. T. Carswell, Robert G. Sanders, Charlotte, for plaintiff, appellant.
Mullen, Holland & Cooke, Gastonia, by J. Mack Holland, Jr., Gastonia, for defendants, appellees.
HIGGINS, Justice.
Boiled down to its essence, the article complained of says the editor is informed the city council, by a vote of four to two, with the verbal backing of the mayor, has purchased a "shabby" lot in Gastonia for $3,000; "that the purchase is not a bargain," but is a "wasteful and non-arbitrated use of public money"; that the editor of the paper believes the deal smells. The clause underscored is the only reference to the plaintiff. The article charges that a majority of the council had the verbal backing of the mayor; that is, that he approved the action of the council in making the purchase. There is no allegation the article had any *212 hidden or undisclosed meaning, or that the language used had any special or unusual significance. The article does not charge, and the complaint does not allege, that the mayor exerted, or attempted to exert, any influence, improper or otherwise, upon the council, or that he did, or intended to do anything more than to give his verbal support to their decision. The article, when fairly and impartially construed, does not have the meaning the plaintiff seeks to give it. The editor of the paper charges the wasteful, not corrupt, use of public money. The expenditure of public money is a matter of judgment, and to charge the council with bad judgment is not libelous. One of the functions of a newspaper is to give information about public affairs and how public officials are carrying on the public business. So long as that qualified privilege is not abused, an action for libel cannot be maintained.
Article I, Sec. 20, of the Constitution of North Carolina provides: "Freedom of the press.The freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained, but every individual shall be held responsible for the abuse of the same."
The question then is: Does it appear from the article and the complaint that the editor of the paper abused the privilege granted by the Constitution?
"Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously." Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95, 172 N.E. 139, 140, 72 A.L.R. 913. "Anything connected with the plaintiff's official duties was a proper subject of discussion, which, if made without malice, was not libelous." Swearingen v. Parkersburg Sentinel Co., 125 W.Va. 731, 26 S.E.2d 209, 215.
In determining whether a published article is libelous it must be read and considered in its setting. Here, the city paper, by the article complained of, called attention in a critical and sarcastic vein to the manner in which the council had expended the city's money. Conversion, embezzlement, misconduct in office are not charged against the council and a fortiori not against the mayor. Publication of the official acts of public men and bodies is in the public interest. On a similar question, Chief Justice Clark, in the case of Lewis v. Carr, 178 N.C. 578, 101 S.E. 97, 98, said: "It was qualifiedly privileged because though the defendant was under no legal obligation to act, it was a publication required by the public good if the charges were true. In cases of qualified privilege, the falsehood of the charge will not of itself be sufficient to establish malice, for there is a presumption that the publication was made bona fide." Fields v. Bynum, 156 N.C. 413, 416, 72 S.E. 449; Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775. Whether a publication is privileged is a question of law to be determined by the court. Hartsfield v. Harvey C. Hines Co., 200 N.C. 356, 157 S.E. 16. When the correct tests are applied, it becomes manifest the article is not libelous. Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931; Newberry v. Willis, 195 N.C. 302, 142 S.E. 10; Fields v. Page Trust Co., 195 N.C. 304, 142 S.E. 7; Stevenson v. Northington, 204 N.C. 690, 169 S.E. 622; Pentuff v. Park, 194 N.C. 146, 138 S.E. 616, 53 A.L.R. 626.
The complaint alleges a defective cause of action. The judgment sustaining the demurrer is
Affirmed.
BARN HILL, C. J., took no part in the consideration or decision of this case.