Duncan v. the Record Publishing Co.

143 S.E. 31 | S.C. | 1927

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] September 21, 1927. The opinion of the Court was delivered by The appeal in this case was first heard in this Court on the 10th day of November, 1925. At the hearing, the Court consisted of Associate Justices Watts, Cothran, and Marion and Hon. R.O. Purdy, Acting Associate Justice. After the hearing, and prior to the disposition of the cause, Mr. Justice Marion resigned on January 1, 1926, but was appointed and commissioned by his excellency, Hon. Thomas G. McLeod, Governor of the State, to act as an Associate Justice in all causes which had been heard by him and which had not been determined. Mr. Associate Justice Marion wrote an opinion affirming the judgment of the Court below, and Mr. Justice Watts concurred therein. Mr. Justice Cothran wrote an opinion reversing the judgment and ordering the entry of a nonsuit, as provided by Rule 27. With that opinion, Mr. Acting Associate Justice Purdy concurred. The opinions were not filed. If they had been filed, the result would have been an affirmance of the judgment below, since the Court was equally divided; two of the Justices favoring affirmance, and two favoring reversal. Hutchinson v. Turner, 88 S.C. 318;70 S.E., 410, 806. Owings v. Graham, 120 S.C. 408;113 S.E., 279. Thereafter the Justices who participated in the hearing of the appeal ordered a reargument of the cause to be had at the June, 1927, term of the Court; the opinions mentioned before being lodged with the Clerk of Court for the information of counsel and not as the judgment of the Court. SeeOwings v. Graham, supra. Pursuant to the order of rehearing, the appeal was reargued on June 14, 1927.

We have examined carefully the record in the cause, and the able and interesting opinions of Justices Marion and Cothran. It is our opinion that the opinion of Acting Associate Justice Marion ably and correctly disposes of all the questions raised by the appellants, and that it plainly and properly sets forth all the legal principles applicable to the facts of the cause. An effort on the part of this Court to attempt to improve upon what he has so well said would be unnecessary and fruitless. We are entirely satisfied with and adopt his opinion as the opinion of this Court. That opinion was as follows:

MR. ACTING ASSOCIATE JUSTICE MARION: This is an action for libel, brought by the plaintiff, T.C. Duncan, against the Record Publishing Company and E.W. Robertson. The plaintiff recovered, and from judgment on verdict the two defendants have appealed upon exceptions, which assign error in the refusal of defendants' motions for nonsuit, for a directed verdict, and for a new trial, and in the charge to the jury. The exceptions, together with the Circuit Judge's charge, should be set out in the report of the case.

The material facts out of which the action arose are as follows:

The plaintiff, Duncan, was a member of the State Senate. On March 23, 1923, he was appointed a member of a commission of seven known as the Canal Commission, created by an Act of the General Assembly, approved March 26, 1923 (33 St. at Large, p. 828). This commission was vested "with full and exclusive power and authority to take full control of the interest of the State, * * * in the Columbia Canal property, * * * in the cause entitled `The State ofSouth Carolina v. Columbia Railway, Gas and Electric Co.'" then pending in the Courts. The defendant Robertson was an officer of and the owner of a controlling interest in the stock of the Columbia Railway, Gas Electric Company, hereinafter referred to as the Street Railway Company and was also president of a bank.

On March 28th, two days after the approval of the Act creating the Canal Commission, and five days after his appointment on the commission, the plaintiff, Duncan, addressed a letter to the defendant Robertson, making application for a loan of $25,000, which application was refused. During the year following the refusal of this loan the Canal Commission held a number of meetings, and had before it offers of settlement of the canal litigation submitted by the Street Railway Company and by Stone Webster, who had obtained from the defendant Robertson an option on the controlling stock in the Street Railway Company. These offers had been published in the newspapers, publicly discussed, and a settlement advocated by the Chambers of Commerce of Columbia and of Winnsboro, and by the signers of a petition bearing more than 1,000 names, which had been presented to the Canal Commission. The offers of the Street Railway Company had been rejected, but no decision as to the proposal of Stone Webster had been made public, when on the morning of March 11, 1924, the plaintiff. Duncan, arose from his seat in the Senate "to a point of persona and official privilege" and delivered a speech on the "cana situation," in the course of which he charged that this situation had been handled by the press of Columbia in a manner to put out "the most appalling propaganda ever put on in South Carolina"; that Stone Webster, "aided and abetted by the powerful newspapers of Columbia," had come into the situation as a "Trojan horse" for "the Columbia concern"; that the Street Railway Company was a company that had "feasted on its betters, by taking advantage of the financial situation," etc. The address contained references to "the gentleman who sits in the offices in the back of the Loan Exchange Bank" and to a "Columbia octopus," and proclaimed the speaker's intention "to make the men who have been feeding on dead men's bones take their medicine."

On the day the foregoing address was delivered by the plaintiff, Duncan, the Columbia Record, an afternoon newspaper, published on the front page the following:

"Facsimile of a Letter from Senator T.C. Duncan to Edwin W. Robertson, of Columbia "Senator Duncan is a member of the Canal Commission. He was appointed a member of the commission on March 23, 1923. The Act creating the commission was passed by the General Assembly during the session of 1923, and was approved March 26, 1923. Senator Duncan's letter is dated March 28, 1923. The loan solicited was not granted. The first meeting of the Canal Commission was held in Columbia, April 13, 1923.

"Union, Mar. 28 6 P.M.S.C.

"After five days return to T.C. Duncan, Union, S.C. To Mr. E.W. Robertson, % Loan Exchange Nat. Bank. Columbia, S.C.

"Personal.

"T.C. Duncan, Union, S.C. To E.W. Robertson, Columbia, S.C. March 28, 1923.

"Dear Sir: I would like to secure a loan of $25,000.00 — for three years — interest payable semiannually. I have security worth six times the amount of loan desired.

"I will be glad for you to have your representative to inspect the property that I would offer as collateral — I can make loan from a bank, but I do not desire the constant renewal of paper. I have Building Loan stock that will mature in three years, by means of which loan will be paid at maturity.

"If there is any one in the State who could handle the above matter, you are the individual — I would thank you for your early reply.

"Very truly, [Signed] T.C. Duncan."

This action for libel is based upon the foregoing publication. Plaintiff alleged that "in and by the publication hereinabove set forth, and the circumstances attending and surrounding the same, the defendants purposed and intended to charge and to convey to the public the charge that this plaintiff was susceptible to bribery; that he was by said letter inviting the defendant E.W. Robertson to approach and influence him in the discharge of his duties on said Canal Commission in a corrupt way; that plaintiff was dishonest and corrupt in the discharge of his public and official trusts and duties; that he was betraying the interests of the public and of the State in his official position; that plaintiff's integrity was impeached, and that he was unworthy of the confidence of the public and of the business world." The defendant, Robertson, by his answer, admitted the publication, but denied the innuendoes alleged, and pleaded, by way of self-defense and privilege, that he made the publication to defend himself against plaintiff's defamatory attacks and that the publication made was true. The answer of the Record Publishing Company presented substantially the same defenses.

The appellants' first general proposition is that the facts alleged and proved, when subjected to the correct legal test or tests applicable, do not make out a case of actionable defamation. To that contention, according to appellants' grouping, Exceptions 1, 4, 5, and 6 are directed, and the contention itself is broadly presented by Exception 1, which imputes error to the trial Court in refusing defendants' motion for nonsuit and for a directed verdict, upon the ground that plaintiff had "failed to prove that the publication alleged was libelous per se or by reason of special circumstances surrounding the publication," and had, "therefore, failed to prove a cause of action for defamation" against defendants.

In support of that position it is argued that the publication itself contained "no defamatory statement or implication, suggestion, or insinuation"; that the publication itself fully disclosed the situation and occasion and contained all the relevant facts, and that no extraneous facts and circumstances (inducement), which coupled with the language used would affect the construction and render it actionable, had been alleged or proved; that construing the words published, as they must be construed, in their ordinary and popular meaning, in the light of the occasion and all of the relevant circumstances disclosed by the publication itself, the publication was not reasonably susceptible of the defamatory meaning attributed thereto by the innuendo of plaintiff's complaint; and that it was, therefore, within the province of the Court to determine as a matter of law that the publication was not actionable as a libel and the duty of the Court to hold that the defendants were entitled to a nonsuit or directed verdict. The publication, as we have seen, consisted of a facsimile of Duncan's letter to Robertson, soliciting a loan, the statement that Duncan was a member of the Canal Commission, the date of his appointment, the date of the approval of the Act creating the Canal Commission, the date of Duncan's letter, the date and place of the first meeting of the Canal Commission, and the statement that the loan solicited by Duncan was not granted.

In the view that the publication itself disclosed the occasion and contained all the facts relevant to the matter published, the validity of appellants' conclusion that it contained no implication or suggestion of improper conduct on Duncan's part, and was not reasonably susceptible of the meaning ascribed thereto by the innuendo of the complaint, might well be doubted. But in addition to the facts contained in the publication itself the plaintiff alleged and adduced evidence to establish the significant and relevant facts (1) that the Canal Commission, upon which Duncan had been appointed a member just five days prior to the date of his letter to Robertson, was vested with "plenary authority with respect to" certain litigation then pending between the State of South Carolina and the Columbia Railway, Gas Electric Company; (2) that Edwin W. Robertson, to whom said letter was addressed, owned a controlling interest in said company, and (3) that on the very day of the publication Duncan from his seat in the State Senate had made a bitter and sensational public attack upon Robertson and his company and upon the press of Columbia. Certainly, when the matter contained in the publication is read in the light of the foregoing significant facts, it would seem scarcely open to argument that the publication was reasonably susceptible of the meaning which the innuendo of the complaint ascribed thereto, viz., that Duncan had invited the defendant, Robertson, to influence him in the discharge of his official duty by the extension of a personal loan, and had thereby been guilty to all intents and purposes of the crime of soliciting a bribe. For the Court to have held otherwise would, we think, have required the indulgence of a presumption for which unfortunately there is no basis in the common experience of mankind — that the average reader of the modern newspaper lives and thinks in the rarified atmosphere of "the pure, to whom all things are pure."

It is further contended that there was neither allegation nor proof that the publication effected a libelous purpose "by conveying to those to whom it was sent" the defamatory meaning charged (Hubbard v. Furman University,76 S.C. 514; 57 S.E., 479), and that in the absence of such allegation and proof the cause of action for libel was not established. No demurrer was interposed upon the ground that the allegations of the complaint were insufficient, and the testimony of readers of the publication, offered by plaintiff to establish that it was understood in the defamatory sense charged, was excluded by the Court upon defendants' objection. The Court excluded the testimony offered upon the ground that the question was one for the jury, "because they could tell what impression the writing conveyed as well as any individual could." If, as we have held, the writing as published was capable of conveying the defamatory meaning charged, the evidence adduced to establish its publication and the circumstantial setting thereof was, we think, sufficient to support, the inference of fact that such defamatory meaning was actually conveyed to the readers of the publication. The motions for nonsuit and for a directed verdict could not, therefore, have been properly granted upon the ground of failure to allege and prove that a libelous purpose was effected.

It is virtually conceded by appellants that the foregoing conclusions are required, if the Circuit Judge's view of the law, as embodied in the portions of his charge to which Exception 4 is directed, is correct. Exception 4 imputes error to the Circuit Judge in charging as follows:

"Where the words written and published of another are capable of two meanings, one of which is slanderous and the other is not, it is the duty of the jury to ascertain from the evidence, by the greater weight thereof, taking into consideration all the facts and surrounding circumstances attending the uttering of the publication, in what sense the words were uttered or published. In ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers, the jury are entitled to take into consideration both the ordinary meaning of the words, the time, place, setting, and surrounding circumstances attending and accompanying the publication thereof, including also the official position and duties of the party about whom the publication was made at that time, as they may find the same to be from the evidence by the greater weight thereof, and ascertain and determine from all of the evidence what meaning should be given to the publication. It is for the jury to determine from the evidence, by the greater weight thereof, the sense in which words were published."

The objections urged to the foregoing instruction are, in substance, that it erroneously makes the defendants' "secret intention" and "the sense in which the words were published" the test by which to determine the question of libel or no libel, and authorizes the jury "to take into consideration the time, place, setting, and surrounding circumstances" without regard to whether "these were known to and appreciated by the readers" of the publication. We think the objections are hypercritical. The charge was in accord with the law as thus stated in Newell on Libel and Slander (4th Ed.), pp. 736, 737, § 672:

"Wherever the words sued on are susceptible both of a harmless and an injurious meaning, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of the publication. * * * The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred. * * * If, however, the words are capable of the meaning ascribed to them by the innuendo, and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury to decide whether in fact the words were understood in that sense by those who first heard or read them."

That statement is in substantial accord with the law as stated and applied by this Court in several cases (Hubbardv. Furman University, 76 S.C. 510; 57 S.E., 478. Blackv. State Co., 93 S.C. 475, 476; 77 S.E., 51; Ann. Cas., 1914-C, 989. Nunnamaker v. Smith's, 96 S.C. 294;80 S.E., 465), and with the views expressed and applied by the Supreme Court of the United States in Baker v. Warner, 231 U.S. 594; 34 S.Ct., 175; 58 L.Ed., 389, and inWashington Post Co. v. Chaloner, 250 U.S. 293; 39 St. Ct., 448; 63 L.Ed., 989.

It is true that, if the extraneous circumstances relied upon to give a defamatory meaning to a publication were unknown to the readers of the publication, such circumstances could, of course, have no probative force to establish that the published writing conveyed a libelous meaning to such readers. But in correctly charging generally that the jury were entitled to take the surrounding and attendant circumstances into consideration, "in ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers," the Court was not bound to assume that evidence, if any, as to attendant circumstances which were unknown to the readers of the publication, would be given a probative force to which it was not entitled. And even if it be conceded that the general principle embodied in the charge as given might properly have been qualified by an instruction to the effect that in determining whether the publication conveyed a libelous meaning only attendant circumstances which were known to the readers of the publication could be considered (25 Cyc., 357; 17 R.C.L., 314, § 54), in the absence of a specific request for such an instruction, the Court's failure so to charge cannot be held for reversible error. Mrs. Hall'sCafeteria v. Insurance Co., 128 S.C. 214; 122 S.E., 580.Strickland v. Moskos, 131 S.C. 249; 127 S.E., 265. Langleyv. So. Ry., 113 S.C. 54; 101 S.E., 286.

It is further contended that the Circuit Judge erred (Exception 5) in charging as follows:

"To constitute an actionable libel, the writing must make a false charge or insinuation against the plaintiff; it must be inspired by malice; it must tend to impeach the reputation of the plaintiff, and to injure him in his office, business, or in the estimation of the public. To render a defamatory statement actionable, it is not necessary that the false charge be made in a direct, open, and positive manner. A mere insinuation is as actionable as a positive assertion, if it is false and malicious, and the meaning is plain."

The charge was a correct statement of the law, 17 R.C. L., pp. 312-314, §§ 53-55. Turner v. Brien, 184 Iowa, 320;167 N.W., 584; 3 A.L.R., 1589, 1590. Appellants do not contend to the contrary, but say that it was inapplicable, in that the evidence was not reasonably susceptible of an inference that defendants had made any defamatory insinuation concerning the plaintiff, and that the foregoing charge was tantamount to an instruction that the jury could find in defendants' publication insinuations for which they "would be legally liable." That contention is essentially the same as is embodied in the defendants' request to charge, the refusal of which is made the basis of Exception 6, which request was as follows:

"The publication alleged in the complaint in this action was a letter written by the plaintiff to defendant Robertson, and if you find by the preponderance of the testimony that the circumstances stated in connection with the receipt of the letter are correctly stated, and that no comment was made thereon, you cannot find from the publication itself that the defendants were actuated by the motives alleged in the complaint, or that they intended to give to the publication the meaning alleged in the complaint. There must be some other evidence to establish the truth of the allegation of such meaning and motive."

If, as we have held in disposing of Exceptions 1 and 4, the issue, as to whether the publication, in the light of the extrinsic facts established, bore and conveyed the defamatory meaning charged, was properly submitted to the jury as an issue of fact, it is apparent that appellants' position as to the errors assigned by Exceptions 5 and 6 is untenable. Upon that issue the charge give (Exception 5) was sound and clearly applicable, and the request to charge refused (Exception 6) was properly refused as involving an invasion of the jury's province.

The second general proposition advanced by appellants is that the publication alleged to be libelous "was absolutely true" and that its "literal truthfulness" was a complete defense, "irrespective of the occasion of the publication or the motive or purpose of the publisher." Under this general proposition appellants group their Exceptions 2, 7, 8, and 9.

Exception 2 makes the contention that the Circuit Judge "should have granted a nonsuit and directed a verdict," upon the ground that "the testimony admits only of the inference that the publication by defendant was absolutely true, so that plaintiff has failed to establish any cause of action for defamation, as alleged." Exception 7 imputes error to the trial Judge in charging as follows:

"If you find that charges or insinuations against this plaintiff, if any, made in the publications made by defendants in this case were true, then your verdict as to such charges or insinuations found to be true must be for defendants. I charge you this because in a case of this character the truth of the publication, and of any charges or insinuations made therein, is a complete defense. And, even though evil motives may have prompted defendants to publish the truth, this will not make them liable. And it makes no difference whether either or both of the defendants did not know, at the time that the publication or charges were made, that they were the truth."

The specifications of error are (a) "that the publication made no charges nor insinuations against plaintiff, and there was no evidence of any charges or insinuations made by defendantsaliunde," and (b) "that proof of the literal truthfulness of a publication is a complete defense, regardless of any insinuation sought to be placed thereon by innuendoes alleged or otherwise," etc. That the publication was "absolutely true," in the sense that each and every statement therein contained was literally true, we do not understand to be disputed. But it does not follow that such literal truth was a complete defense, as appellants contended. The plaintiff's cause of action for libel was predicated upon the charge that the publication, literally true as it was, was intended to convey and conveyed to the readers thereof the defamatory meaning attributed thereto by the innuendo of the complaint. The trial Court having properly held as a matter of law that the publication was capable of the construction placed upon it by the plaintiff, and the issue of fact as to whether the statement was published and understood in the sense charged having been properly submitted to the jury, it was necessary that the truth of the publication, pleaded by way of justification, in order to constitute a complete defense, should be established in the sense that the publication was alleged to convey a defamatory meaning. 36 C.J., p. 1233, § 194, and the numerous cases cited in footnote 29. Turner v. Brien,184 Iowa, 320; 167 N.W., 584; 3 A.L.R., 1590. Snyderv. Tribune Co., 161 Iowa, 671; 143 N.W., 519. Julianv. Kansas City Star Co., 209 Mo., 35; 107 S.W. 496. The rule is thus stated in Newell on Libel and Slander (4th Ed.), p. 766, § 699:

"A plea is bad which falls short of a justification of the slanderous words in the sense imputed to them by the declaration, for the plea necessarily confesses that such sense is correctly imputed. * * * The whole libel must be proved true, not a part merely. * * * Justification must be of the very charge it is attempted to justify, and it is not permissible to set up a charge of the same general nature, but distinct as to the particular subject."

The author of the note to Hutchins v. Page, 31 L.R.A. (N.S.), at page 140, states the law as follows:

"In order that the truth constitute a complete defense, it must be established in the sense in which it is charged. As said by Lord Chief Justice De Gray in R. v. Horne, Cowp., pt. 2, p. 687, a man cannot defame in one sense, and defend himself in another. Hence the sufficiency of evidence to justify a defamatory matter depends upon the question whether the facts are charged with an innuendo, since if this is the case, according to the weight of authority, it is necessary to allege and prove the truth of the charge according to the imputation of the innuendo, or the defendant will fail in his attempt to justify, assuming, of course, that the words are capable of the meaning imputed to them, and that the defendant seeks to justify according to that meaning.Jones v. Townsend, 21 Fla., 431; 58 Am. Rep., 676. Stowellv. Beagle, 57 Ill., 97; s. c. on subsequent appeal,79 Ill., 525. Downey v. Dillon, 52 Ind., 442. Samples v. Carnahan, 21 (Ind.) Ill. App. 55 (51 N.E., 425). McGuire v.Vaughan, 106 Mich., 280; 64 N.W., 44. Fidler v. (Delavan)Delevan, 20 Wend. (N.Y.), 57. Wahle v. CincinnatiGazette Co., 4 Ohio L.J. (Wkly. Law Bul.), 61. Gagev. Robertson, 12 Ohio, 250. Nott v. Stoddard, 38 Vt., 25; 88 Am. Dec., 633. Royce v. Maloney, 57 Vt., 325."

Thus, "where the innuendo imputes to the facts a charge involving dishonesty, corrupt or criminal intent, it is necessary, in order to justify the charge, not only to allege the truth of the facts, but also their truth according to the intent imputed to them." Gage v. Robinson, 12 Ohio, 250; and see Clifton v. Lange, 108 Iowa, 472; 79 N.W., 276.Paxton v. Woodward, 31 Mont., 195; 78 P., 215; 107 Am. St. Rep., 416; 3 Ann. Cas., 546. Since appellants do not contend, but, on the contrary, expressly disclaim, that they sought to justify by showing the truth of the charge which plaintiff's innuendo imputed to the publication, it is clear that their contention that the "literal truthfulness" of the publication constituted a complete defense is untenable and Exceptions 2 and 7, which are predicated upon the validity of that contention, must be overruled.

The instruction complained of in Exception 8 was to the effect that "the benefit as a defense of the truth of matters published may be lost, if the matter published was a private transaction with which the public had no legitimate connection or concern, and the manner and style of publication made a false insinuation against the plaintiff, which would render the matter libelous." That instruction followed the broad statement that, "where the facts printed and published are true, no liability for libel will arise from the mere fact that the truth stated is liable to suggest damaging inferences concerning such plaintiff, or from the mere fact that from the truth so stated natural inferences of a defamatory character might be drawn which would be untrue" — the purport of which statement was to clarify and emphasize the point, which the trial Judge had previously made in his charge, that "the inference of hurt, or injury, arising out of a statement of facts, in order to become actionable, must be such an inference as is drawn or established by the general consent of men." Upon analysis it will be perceived that the modification here complained of does not, as appellants suggest in argument, go to the extent of applying the doctrine announced by certain Courts (Hutchins v. Page,75 N.H. 215; 72 A., 689; 31 L.R.A. [N.S.], 132.Burkhart v. North American Co., 214 Pa., 39; 63 A., 410), that truth is not a defense to a civil action for libel, unless published "upon a lawful occasion, in good faith, and for a proper motive." The Circuit Judge merely said, in effect, that truth would not be a defense if the matter published was not privileged and if it "made a false insinuation against the plaintiff which would render the matter libelous" — a proposition which is not open to valid criticism, when considered in the light of the rule that the plea of truth must extend to the defamatory meaning alleged to have been conveyed by the publication and of the Court's previous instruction to the effect that the truth of the publication, in the sense that it conveyed any such defamatory meaning, "is a complete defense," "even though evil motives may have prompted" the publication. Exception 8 must therefore be overruled.

In this phase of the case relating to truth as a defense, appellant's next contention (Exception 9) is that the trial Court erred in charging that, "where a libelous publication consists of making a charge of a crime and a party seeks to justify on the ground that the charge is true, the law of this State requires him to prove the truth of his charge — that is to say, the truth of the crime — beyond a reasonable doubt just as in criminal cases." The error assigned is not that the foregoing instruction was an incorrect statement of the law (Gill v. Ruggles, 95 S.C. pages 94, 95;78 S.E., 536. Burckhalter v. Coward, 16 S.C. 440; but see Salley v. Globe Indemnity Co., 133 S.C. 342;131 S.E., 616; 43 A.L.R., 971), but that defendants "did not justify in this case by seeking to prove the truth of a crime," but, on the contrary, by their answer "expressly denied the allegations of the complaint" that they "had charged plaintiff with the commission of a crime." Hence, as we understand appellants' point, it is contended that the charge was irrelevant and misleading. The defendants pleaded the truth of the "facts" published, and the truth of the publication "by way of justification and complete defense" to the action. Upon the issue thus raised, clearly the charge complained of may not be pronounced erroneous upon the ground that it was inapplicable. While the defendants did disclaim any intent to charge plaintiff with the commission of a crime, they did not withdraw or abandon the plea of truth "by way of justification and complete defense" — a plea which, as we have seen, could not be sustained without meeting the facts published in the sense imputed to them by plaintiff's innuendo. But, in any event, if the charge was directed to an issue which the Court improperly assumed to be made by the pleadings, "it was incumbent on defendants' counsel to call the Court's attention to its mistake." Gill v. Ruggles, 95 S.C. 100;78 S.E., 540. That was not done, and Exception 9 must be overruled.

Appellants' third general proposition is that the trial Court misapprehended and erroneously applied to the facts of this case the law of "self-defense and privilege." For the purpose of presenting their position upon this question, appellants in argument have grouped their Exceptions 3, 10, 11, 12, and 13. The main contention made is, in substance, that the Circuit Court erred in holding and in charging that the defense of privilege, based upon the right of self-defense and upon the right to publish and comment upon matters of public interest, interposed by both of the defendants, was not a good defense in bar, but was available and effective "only in mitigation or reduction of damages." By reference to the Judge's charge it will be seen that the facts as to the defamatory attack upon the defendant by the plaintiff, Duncan, in the State Senate, on the day of the alleged libelous publication by defendants, upon which the defense of privilege was based, were as fully stated in the charge as pleaded in the defendants' answers. Those facts were pleaded "as privilege and justification, as well as in mitigation." The portions of the charge complained of in Exceptions 10, 11, and 12, standing alone, would unquestionably be open to the criticism leveled against them, if such portions of the charge could properly be construed to constitute the whole of the Court's charge upon the defense of privilege.

Thus, in the instruction referred to in Exception 10, the Court charged that, "if a publication of a libel by a defendant against a senator is provoked by a speech made by the senator in the Senate, such speech by the senator, although made in the Senate, may be taken into consideration by the jury in mitigation or reduction of any damages caused to the senator by the defendant's publication, if the defendants' publication was libelous." In the instruction referred to in Exception 11, the Court charged that "the defense of self-defense and privilege, as I have heretofore set them forth, would apply in this case in mitigation or reduction of damages, if the publication by defendants was libelous, even though plaintiff's (defendants') publication resulted from a speech made by plaintiff during a session of the Senate, of which he was a member, and in the Senate chamber"; and, in the instruction complained of in Exception 12, the Court charged that "if the defendants, by the publication in evidence, charged the plaintiff with having solicited a bribe, while a public officer, to influence his official conduct, then the charge and publication would be libelous, and the burden would then be upon defendants to defeat liability by proving the truth of the charge, or to prove any facts or circumstances, which under the law as stated by me in this charge would mitigate or reduce any amount of damages recoverable by plaintiff."

We think, however, that a fair consideration of the charge as a whole, consecutively read, clearly discloses that in the portions of the charge excepted to the trial Judge was endeavoring to give the defendants the full benefit of the proposition of law advanced by them in their sixth request — that the plaintiff's senatorial privilege "did not deprive defendants of their right to defend themselves or of their privilege to answer his attack" — and to cover the contention made in the answer that the facts upon which defendants based their claim of privilege were to be considered not only in the aspect of justification or as a compete defense, but in mitigation of damages as well. See Section 426, Vol. I, Code 1922. The portion of the charge referred to in Exception 10 was followed, and that referred to in Exception 11 was preceded, by the following:

"In an honest endeavor to vindicate himself and his own interests, a defendant is often privileged to make statements which would otherwise be regarded as defamatory. If a party's good name is assailed in a newspaper, he may reply, defending himself, and, if his reply is made in good faith, without malice, and is not unnecessarily defamatory of his assailant, it is privileged. Even though false, a publication which is fairly in answer to a libel, if published without malice and in good faith, for the purpose of repelling a charge,is privileged, and is not actionable.

"An action for libel is not to be encouraged for publication made while parties are mutually engaged in making publications about each other. A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you find that the defendants were actuated by express or actual malice in making the publication, and have abused their privilege."

After giving the instruction referred to in Exceptions 10, 11, and 12, the Court charged:

"It is a legal defense to an action for libel if it is shown that the publication was true, or if the circumstances underwhich the publication was made were such as to render itright and proper that the defendant should make the publicationin question. In such cases, the publication is said to be privileged; and, if privileged, although it may be false, still its publication on such an occasion is excused for the sake of the common convenience and welfare of society at large." (Italics added.)

And subsequently the Court charged:

"If from a defendant's point of view strong words seem to be justified, he should not be held liable for using them, unless the jury find from the evidence that what he published was malicious and inconsistent with good faith." (Italics added.)

In view of the foregoing instructions it cannot be said that the trial Court limited the scope and sufficiency of the defense of "self-defense and privilege" to mitigation of damages. Under the well-settled general principles that the charge must be considered as a whole, that the refusal of an instruction covered by others given is not error, and that it is not improper to state the law as applicable to particular questions in separate instructions which are consistent with each other, the portions of the charge complained of in Exceptions 10, 11, and 12 cannot be pronounced erroneous. 38 Cyc., 1598. Union Bleaching Finishing Co. v. Barker Fuel Co., 124 S.C. 458;117 S.E., 735. Sanders v. Hayes, 128 S.C. 181;122 S.E., 572.

It is further contended that this defense of privilege, interposed by both defendants, was so conclusively established by the evidence that the trial Judge should have charged, "under the circumstances in this case, that the publication made by defendants was qualifiedly privileged" (Exception 13) and should have directed a verdict for defendants upon that ground (Exception 3). In his able dissenting opinion in the case Switzer v. Am. Ry. Express Co.,119 S.C. 242, 248; 112 S.E., 110, 113 (26 A.L.R., 819), Mr. Justice Cothran thus states the questions of fact involved in determining the issue as to whether a communication or publication is qualifiedly privileged:

"Was the `communication,' alleged to have been slanderous, one of qualified privilege; this question depending upon the further question whether or not, the `occasion' being shown to have been one of qualified privilege, the occasion was so abused, or its bounds so exceeded by ill motive, as to deprive the communication of the qualifiedly privileged character which is presumed by the fact of its utterance upon a qualifiedly privileged occasion?"

In Newell on Libel and Slander (4th Ed.), pp. 315, 316, § 277, it is said:

"The effect, therefore, of showing that the communication was made upon a privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact; that is, that the defendant was actuated by ill will in what he did and said, with a design to causelessly or wantonly injure the plaintiff; and this malice in fact, resting as it must upon the libelous matter itself and the surrounding circumstances tending to prove fact and notice, is a question to be determined by the jury The question whether the occasion is such as to rebut the inference of malice, if the communication be bona fide, i one of law for the Court; but whether bona fides exist is one of fact for the jury. And the jury may find the existence of actual malice from the language of the communicationitself, as well as from extrinsic evidence."

In the case of Switzer v. American Ry. Express Co., 11 S.C. 242,243; 112 S.E., 111; 26 A.L.R., 819, this Court said:

"While, as stated by Judge Earle in the case of Smith v.Youmans, supra (3 Hill, 85), the privileged `occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof the presumption thus raised is a presumption or inference of fact sanctioned by law, to be applied by the jury under appropriate instructions of the Court."

It is true, where the evidence is open to no other reasonable inference of fact than that the occasion, in the absent of actual malice, was privileged, the Court might proper so instruct the jury, leaving to the jury only the question is whether the plaintiff had sustained the burden of shown the existence of actual malice. Or, as pointed out in the majority opinion in the Switzer case, where the evidence susceptible of no other reasonable inference than that (the occasion was privileged, and (2) that the occasion was not employed in bad faith and with actual malice, for the purpose of making a defamatory communication, it would be the duty of the Court to hold that the defense of qualified privilege was established and to grant a nonsuit or direct a verdict for the defendant.

In the case at bar the Court modified defendants' fifth request which contained the language, "A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and I charge you that under the circumstances in this case that the publication made by defendants was qualifiedly privileged, and that you cannot award the plaintiff a verdict, unless you find that the defendants have abused their privilege," by charging as follows:

"A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence, applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you can find that the defendants were actuated by express or actual malice in making the publication, and have abused their privilege."

In the light of the principle enunciated by the foregoing authorities, we do not think the failure to charge, as requested, "that the publication made by defendants was qualifiedly privileged," may be held for reversible error, even in the possible view that under the facts of the case the Court might properly have held and charged that the occasion wasprivileged. And since the only effect of holding by the Court that the occasion was privileged would have been to require the placing on plaintiff of the burden of showing "express or actual malice" — a burden which, in effect, was as clearly devolved on plaintiff by this instruction as modified and by the general charge as if the Court had expressly assumed and held that the occasion was privileged — we are of the opinion that the point raised by Exception 13 is without substantial merit and must be overruled. And unless the Court could have held as a matter of law that the facts in evidence were susceptible of no other reasonable inference than that the publication was made without actual malice — and it is not seriously contended in argument that under the facts here the trial Court could properly have so held — it follows that there was no error in refusing the motion for nonsuit and for a directed verdict, upon the ground that the defense of privilege had been conclusively established by the evidence, and Exception 3 must therefore be overruled. SeeSwitzer v. American Ry. Express Co., supra. Smith v.Youmans, 3 Hill, 88, 89. Miller v. Kerr, 2 McCord, 288; 13 Am. Dec., 722; Newell on Libel and Slander, pp. 315, 316, § 277. Denver Pub. W. Co. v. Holloway,34 Colo., 432; 83 P., 131; 3 L.R.A. (N.S.), 699; 114 Am. St. Rep., 171; 7 Ann. Cas., 840; and editorial notes and cases cited and reviewed, 3 L.R.A. (N.S.), 697, and Sunley v. M.L.Ins. Co., 132 Iowa, 123; 109 N.W., 463; 12 L.R.A. (N.S.), 93.

Appellants' fourth general proposition is that the trial Judge erred in charging the law of damages. It is contended (Exception 14) that the Court erred in charging as follows:

"If the jury find from the evidence, by the greater weight thereof, that the publication in question was libelous, then the plaintiff would be entitled to recover such sum by way of actual damages as the jury in its discretion may think proper to compensate him for his injury, including the humiliation which he may feel and may have suffered by reason of the publication, and the jury are instructed that, if they find the publication was libelous, the plaintiff would be entitled to substantial damages."

The error assigned is (a) that the charge was in respect of matters of fact, and so violated Section 26 of Article 5 of the Constitution; (b) that the amount of damages was in the sound discretion of the jury, etc.; and (c) that the charge was peculiarly prejudicial, "in view of plaintiff's failure to offer testimony of any actual damage," and "in view of defendants' testimony going to mitigation and reduction of damages." It is further contended (Exception 15) that the Judge, in violation of the constitutional inhibition, intimated to the jury his opinion that plaintiff's actual damages should be increased, and not diminished, and that plaintiff should be awarded punitive damages, by charging as follows:

"If you find that the defendants, or either of them, have been proven guilty of publishing a libel, as defined in this charge, against the plaintiff, then, in determining the amount of damages to which the plaintiff may be entitled, you should take into consideration all the facts and circumstances of the case as disclosed by the evidence, the nature and character of the charges, the language, manner, and style in which such charges were made or published, and their tendency, the occasion on which they were published, the extent of their circulation, the probable effect of the publication upon those to whose attention it came, and its natural and probable effect upon the plaintiff's personal feelings, and his standing in the community and in public estimation; and you may, in reaching your verdict, take into consideration, in mitigation or reduction of damages, any and all facts and circumstances disclosed by the evidence which tend to show that the article was published under the influence of a provocation therefor recently given by plaintiff to the defendants or either of them; and if, under the instructions in this charge, the plaintiff is entitled to recover, you should award him such sum by way of damages as will fairly and adequately compensate him for any insult to him, including any pain and mortification and mental suffering inflicted upon him, and any injury to his standing as a man, citizen, or public officer in the public estimation; and the plaintiff would also be entitled to recover such punitive or exemplary damages as you may find to be proper under all such facts and circumstances as may be proven by the evidence, in case you find from the evidence that such defamatory publication or libel was wantonly or maliciously published with intent to injure the plaintiff."

Reading the foregoing portions of the charge, referred to in Exceptions 14 and 15, together, it is sufficiently apparent, we think, that the applicable law as to damages was fully and fairly charged, and that the instructions are not open to valid criticism, unless it can be said that the Judge trenched upon the facts in stating that, if the jury should "find the publication was libelous, the plaintiff would be entitled to substantial damages." In their printed argument, that is the gist of the objection urged by appellants to the Court's charge upon this phase of the case.

It is argued that since, under the well-established rule in actions for libel, "the amount of damages is peculiarly within the province of the jury" (17 R.C.L., 429, § 188. Gambrillv. Scholey, 93 Md., 48; 48 A., 730; 52 L.R.A., 87; 86 Am. St. Rep., 414; note 86 Am. St. Rep., 422. Holmesv. Jones, 147 N.Y., 59; 41 N.E., 409; 49 Am. St. Rep., 646), the instruction to the effect that upon the basis of a finding by the jury that the publication was libelous "plaintiff would be entitled to substantial damages" was an improper expression of opinion by the Court as to a question of fact which was exclusively for the jury. It is to be borne in mind that the sense in which the publication was alleged by plaintiff to be libelous was that it conveyed a charge of corruption and crime. The Judge's definitions of libel had been directed to the issue thus raised by the pleadings. Hence a finding by the jury that the publication was libelous would be equivalent to a finding that the publication had falsely and maliciously charged plaintiff with the commission of a crime.

Since "any printed or written statement which falsely 23, 24 and maliciously charges another with the commission of a crime is libelous per se" (17 R.C.L., 265, § 5.Smith v. Bradstreet, 63 S.C. 530; 41 S.E., 763), and since, from the publication of defamatory matter which is libelousper se, general damages are presumed to result "by inference of law" and "are not required to be proved by evidence" (37 C.J., 91, § see Lorick v. Bank, 74 S.C. 185;54 S.E., 206; 7 Ann. Cas., 818), it is apparent that the words "substantial damages" were here used by the Circuit Judge, as they were used in Wilson v. Palmetto National Bank, 113 S.C. 508,512; 101 S.E., 841, in contradistinction to "nominal damages." The question, therefore, is whether, upon the assumption that the jury found that plaintiff had been falsely and maliciously charged with the commission of a crime, the Court could properly charge that he would be entitled to recover "substantial" damages. In the case of Lorick v. Bank,supra, in a concurring opinion, Mr. Justice Woods said:

"The liability of a bank to its depositor for substantial damages, temperate in amount, for refusing to pay his check, not exceeding his credit, is generally, if not universally, recognized. And it is not necessary to recovery that there should be proof of special damages, the law presuming that the result is injury to the credit of the depositor from the general experience of men in such transactions. It is the application of the rule established in cases of slander, the refusal to pay the check being a declaration against the solvency and correct business dealing of the drawer."

In Wilson v. Bank, supra, which, like the Lorick case, was an action for damages for improper refusal to honor a check, the Court (Mr. Justice Hydrick) said:

"The next assignment of error is in charging the jury that the damages awarded in a case like this should be something more than nominal; that they should be substantial, but temperate in amount. The error complained of is in the use of the word `substantial.' It appears that `substantial' was used in contradistinction to `nominal'; that is, damages which are so small as scarcely to be entitled to the name, and such as are given for a mere technical invasion of a right, when no real or actual loss or injury has resulted. The authorities agree, and this Court has held, that, in a case like this, plaintiff is entitled to something more than nominal damages, but that the recovery should be temperate in amount."

In Lee v. McCrory Stores Corporation, 117 S.C. 236,238; 109 S.E., 111, which was an action for slander, in passing on an exception which charged that "the presiding Judge invaded the province of the jury in instructing them that they must find general damages substantial in amount, if they found that defendant's employee had used the language set forth in the complaint," this Court said:

"The case of Wilson v. Palmetto National Bank, 113 S.C. 508;101 S.E., 841, is full authority for the charge as made. The charges made the same distinction as to substantial and nominal damages in both cases. This is a stronger case than the Wilson case, in that an overdraft may be the result of carelessness. Stealing cannot be the result of a mistake. This exception is overruled."

In the light of the foregoing expression of this Court, 25, 26 we do not think the use by the trial Judge of the words "substantial damages" can soundly be held for reversible error. Conceding that under our practice the use of the word "substantial" in a charge of this character is not to be commended, and that the idea to be conveyed could more accurately and safely be expressed by the words "more than nominal damages," where, as here, it appears that the word "substantial" was used in that sense, if defendants desired a fuller and more precise statement, an appropriate request for such an instruction should have been preferred.Mrs. Hall's Cafeteria v. Insurance Co., 128 S.C. 214;122 S.E., 580. Nor do we think there is merit in appellants' further contention in this connection that the charge as given eliminated consideration of the defense of self-defense and privilege and of the strong evidence offered by defendants in mitigation. The instruction was based upon the hypothetical finding that defendants had published a libel as charged, and was followed by instructions which very clearly authorized the jury to "take into consideration, in mitigation or reduction of damages, any and all facts and circumstances which tend to show that the article was published under the influence of a provocation therefor recently given," etc.

But appellants say that in charging as to the facts and circumstances in mitigation the Judge used the permissory "may," while in charging as to the facts and circumstances which the jury might take into consideration in determining the amount of damages he used the mandatory "should" (Exception 15), and thereby unfairly discriminated against the defendants. We think an objection predicated on this refinement in the use of words is manifestly hypercritical, and rests upon too tenuous a basis to warrant a finding of reversible error. Exceptions 14 and 15 must therefore be overruled.

Appellants' fifth general proposition is that the Circuit Judge committed reversible error in refusing defendants' motions for a new trial upon the ground that the verdict was "capricious and the result of prejudice" (Exception 16) and "was grossly excessive" (Exception 17). It is contended that the action of the jury in awarding a verdict for the full amount asked for within a few minutes after the case had been submitted strongly indicates that it was the result of caprice and prejudice, and that the jury took no account of defendants' pleas in justification and mitigation of damages, and that the amount of the verdict is so "excessive as to impel the inference" as a matter of law that it was "the result of caprice, passion and prejudice, or other considerations not founded in the evidence" (Exception 18).

It is well settled that this Court, confined by constitutional limitation to the correction of errors of law in cases of this character, has no power to review and reverse the ruling of the Circuit Judge refusing to grant a new trial upon the ground that a verdict was excessive, unless the appeal record discloses and warrants the conclusion, as a matter of law, "that the Circuit Judge's refusal to grant a new trial amounted to manifest abuse of the discretionary power exclusively vested in him by law to grant new trial for or on account of matters of fact. Southerland v. Davis, 122 S.C. 511,515; 115 S.E., 768. Huggins v. Railroad Co.,96 S.C. 267, 278; 79 S.E., 406. Bing v. Railroad Co.,86 S.C. 530; 68 S.E., 645. Or, as was said by this Court in Union Bleaching Co. v. Barker, 124 S.C. 458;117 S.E., 735:

"This Court is without jurisdiction to review a judgment upon the ground alone that the verdict upon which it is based is excessive or contrary to the evidence. If upon a motion for a new trial it should be made to appear, as a matter of law, an inference from admitted facts, or of facts admitted for the purpose of the motion, that the verdict is excessive, this Court may review a contrary ruling by the trial Court."

In numerous decisions this Court has said that, in order to authorize the review and correction of a judgment upon this ground, "it should appear that the verdict is so excessive as to warrant an inference that it was the result of caprice, or some improper or corrupt motive." Leppard v. W.U.Telegraph Co., 88 S.C. 388; 70 S.E., 1004, and other cases cited in Strickland v. Moskos, 131 S.C. 247; 127 S.E., 265.

But, obviously, before an inference can be drawn as a matter of law that a verdict was excessive or that it was so excessive as to reveal caprice, prejudice, or passion, the facts must be "admitted," as pointed out inUnion Bleaching Co. v. Barker, supra, or, if not admitted, it must be assumed, in so far as the evidence warrants, that the facts are as found by the jury. In the case at bar, since the material facts are not admitted, and the jury has determined all issues of fact in favor of the plaintiff, it must be assumed that the facts are those established by the jury's verdict; and the only question which this Court is authorized to consider is whether the Circuit Judge committed error of law in not granting a new trial upon the ground that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded on the evidence. In his order refusing the defendants' motion for a new trial upon the ground that the verdict was excessive, the Circuit Judge thus states his views and conclusions as to the facts:

"There is sufficient evidence to sustain the verdict on both these points (libelous publication and actual malice), and the verdict is not against the preponderance of the evidence. The jury having found that the publication was both libelous and prompted by actual malice toward plaintiff, the mere fact that they found the full amount sued for does not show that they acted under the influence of either passion or prejudice, or that they failed to consider the plea of justification, mitigation, or truth. Whether or not such plea was established by the evidence was for the jury to determine; and, if the alleged provocation was established, it was for the jury to determine the extent of the mitigation to be allowed therefor, under the circumstances proven. It is my duty to determine whether or not the verdict was unjust or excessive under the evidence. * * * There is no exact measure of the damages to be awarded in a civil action for libel. In such a case as this they should include compensation for the injury done the reputation of a Senator, who inherited a good name from a revered bishop, and had been repeatedly honored by the suffrages of those who knew him best — something the value of which was most difficult to be measured. Many who heard, or read, of the libel would remember it, and overlook or forget the vindication. * * * Compensation is not the only element in the verdict. There was evidence to show actual malice on the part of defendants, and the defendant Robertson stated his individual worth was `around $300,000,' and, when asked how much more, replied, `That is enough for this case.' The jury did not think payment of $50,000 excessive punishment for a malicious libel published by one so able to pay. * * * Upon a fair consideration of the case, I do not consider the verdict either unjust or excessive. I see no evidence to indicate that the verdict was the result of either caprice or prejudice."

However difficult it may be to understand the mental proceses of jurors in arriving at a verdict, and however widely this Court may differ with the Circuit Judge in the conclusion, reached in the discharge of the duty exclusively imposed upon him by law, that the verdict of a jury was not against the preponderance of the evidence, if the facts in this case are assumed to be the facts established by the jury's verdict — that the plaintiff was the reputable and innocent victim of the defendants' express malice in publishing, without justification or excuse, a defamatory charge to the effect that he had been guilty of the foul crime of soliciting a bribe, etc., as alleged — then it is manifest, we think, that it may not soundly be held that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded in the evidence. If so, the contention that the Circuit Judge committed error of law in refusing the motion for a new trial upon the ground that the jury's award of damages was excessive cannot be sustained.

It is further contended, however (Exception 19), that the Circuit Judge's failure to grant a new trial was due to his misconception of "his power and duty," in that he held that, "in order to authorize the trial Judge to grant a new trial on account of excessive damages in a libel case, `the damages should be outrageous, out of all proportion to the injury, flagrantly extravagant,' or that it should appear that the jury `were not indifferent between the parties.'" It is true that in his order refusing the motion for a new trial the Circuit Judge, upon the authority of certain of our decisions, used the expressions quoted to define or describe what might be considered excessive damages in a libel case. It cannot be held that his use of those expressions was inaccurate; but, if it could, it does not appear that his conclusion upon the motion for new trial was controlled, or in any wise influenced, thereby. The Judge's conclusion, as we think is clearly indicated by the extracts from his order above set out, was predicated upon the view that under the facts the verdict was neither moderately nor outrageously excessive.

It follows that all exceptions must be overruled, and the judgment of the Circuit Court is affirmed.

It is the judgment of this Court that the judgment of the Court of Common Pleas for Richland County be and the same is hereby affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES STABLER and CARTER concur.

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Dissenting Opinion

In my opinion, this appeal turns largely, if not entirely, upon the correctness of the legal conclusion, announced in the opinion of Mr. Justice Marion, that the publication in question, taken in connection with certain extrinsic facts alleged in the complaint and established beyond controversy by the evidence, is susceptible of a defamatory imputation against the plaintiff, Mr. Duncan. In the opinion of Mr. Justice Marion, it is said:

"In the view that the publication itself disclosed the occasion, and contained all the facts relevant to the matter published, the validity of the appellants' conclusion that it contained no implication or suggestion of improper conduct on Duncan's part, and was not reasonably susceptible of the meaning ascribed thereto by the innuendo of the complaint, might well be doubted."

He adds:

"But, in addition to the facts contained in the publication itself, the plaintiff alleged and adduced evidence to establish the significant and relevant facts: (1) That the Canal Commission, upon which Duncan had been appointed a member just five days prior to the date of his letter to Robertson, was vested with `plenary authority with respect to' certain litigation then pending between the State of South Carolina and the Columbia Gas Electric Company; (2) that Edwin W. Robertson, to whom said letter was addressed, owned a controlling interest in said company; and (3) that on the very day of the publication, Duncan, from his seat in the State Senate, had made a bitter and sensational public attack upon Robertson and his company and upon the press of Columbia."

And he concludes thus:

"Certainly, when the matter contained in the publication is read in the light of the foregoing significant facts, it would seem scarcely open to argument that the publication was reasonably susceptible of the meaning which the innuendo of the complaint ascribed to it, viz., that Duncan had invited the defendant Robertson to influence him in the discharge of his official duty by the extension of a personal loan, and had thereby been guilty, to all intents and purposes, of the crime of soliciting a bribe"; in other words, that Mr. Duncan's letter amounted to a proposition that, if Mr. Robertson would render the financial accommodation applied for, he (Mr. Duncan) as a member of the Canal Commission, would in return favor Mr. Robertson's interests in the canal controversy. With this conclusion I am not in accord, and will endeavor to show that it is not only "open to argument, but is erroneous."

Mr. Justice Marion has evidently proceeded in conformity with the settled principles of law clearly laid down by the Supreme Court of the United States in the case of Baker v.Warner, 231 U.S. 588; 34 S.Ct., 175; 58 L.Ed., 384, where Mr. Justice Lamar, speaking for the Court, says:

"Where words are libelous per se the Judge can so instruct the jury, leaving to them only the determination of the amount of damages. Where the words are not libelous per se and, in the light of the extrinsic facts averred could not possibly be construed to have a defamatory meaning, the Judge can dismiss the declaration on demurrer, or, during the trial, may withdraw the case from the jury [I interpolate by granting a nonsuit or by directing a verdict for the defendant]. But there is a middle ground where, though the words are not libelous per se, yet, in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning. Whether they [actually] have such import is a question of fact. In that class of cases the jury must not only determine the existence of the extrinsic circumstances, which it is alleged bring to light the concealed meaning, but they must also determine whether those facts, when coupled with the words, make the publication libelous."

From this declaration of the law, I understand that, in the determination of the issues involved in a libel suit, it is the duty of the Judge in the first instance to declare whether or not the words used are libelous per se; if so, the sole issue for the jury is the amount of the damages to be awarded; if not, the plaintiff goes out of Court by an order sustaining a demurrer, granting a nonsuit, or directing a verdict, unless the Judge, whose prerogative it is, should decide that although the words are not libelous per se, taken in connection with the extrinsic facts averred, the publication is susceptible of a defamatory meaning. The Judge decides that issue as a question of law, and, if so held, the double issue is presented to the jury as to the truth of the alleged extrinsic facts, and whether these facts, established, coupled with the words used, make the publication libelous.

It is not contended by the plaintiff that the publication was libelous per se; so the first hypothesis stated by Mr. Justice Lamar passes out of the case. The question is: Do the facts present a case which fits either the second or third hypothesis; that is: (2) Where the words are not libelousper se, and in the light of the extrinsic facts averred could not possibly be construed to have a defamatory meaning; or (3) where, though the words are not libelous per se, yet in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning? My very firm conviction is that the facts of this case come under the second hypothesis of Mr. Justice Lamar: "Where the words are not libelous per se, and in the light of the extrinsic facts averred could not possibly be construed to have" the defamatory meaning alleged in the innuendo of the complaint.

The extrinsic facts relied upon, in connection with the publication, to support the conclusion that both combined are susceptible of the defamatory imputation of soliciting abribe are, as stated by Mr. Justice Marion: (1) That the Canal Commission was vested with plenary powers in reference to the litigation then pending between the State and the Railway Gas Electric Company; (2) that Mr. Robertson owned a controlling interest in that company; and (3) that on the day of the publication Mr. Duncan had made in the Senate a bitter attack against Mr. Robertson and the press of Columbia. (Note. — In reference to this last alleged extrinsic fact, which is detailed as one alleged in the complaint, it was not only not alleged in the complaint, but was made the subject of a motion by the plaintiff to strike it out of the defendant's answer, the favorable result of which motion, on circuit, was reversed by this Court. 131 S.C. 485;127 S.E., 606.)

However great may have been the impropriety of Mr. Duncan, a member of the Canal Commission, in presenting an application for a loan to Mr. Robertson, who was directly interested in the settlement of the canal controversy, naturally creating the apprehension in the mind of Mr. Robertson that a refusal would generate a hostile attitude on the part of Mr. Duncan, and subject Mr. Robertson to criticism, such conduct falls very far short of the offense of solicitinga bribe, the only innuendo that has received any consideration in the opinion.

This case is different in one remarkable aspect from any other libel suit that I imagine could be found in the books. It is not based upon the publication of a communication of which the defendant was the author, but upon one of which the plaintiff was the author, at a time when he had full knowledge of every extrinsic fact connected with the controversy. He knew that he had become a member of the Canal Commission; he knew that Mr. Robertson was vitally interested in the canal litigation; he knew that he had written the letter two days before the act constituting the commission had been approved. It is difficult for me to understand, if Mr. Robertson is to be charged with a defamatory imputation in publishing Mr. Duncan's own letter, with the extrinsic facts within his knowledge, why Mr. Duncan should not be charged with a consciousness of the same imputation; a consciousness which he emphatically disavows, and which, if not present with him, could hardly have been so with Mr. Robertson.

The setting of this controversy, in my opinion, shows that Mr. Robertson, rather than Mr. Duncan, was the most aggrieved; that he was decidedly "more sinned against than sinning." A year after the application of Mr. Duncan for a loan had been declined by Mr. Robertson, during which time it does not appear that any specific act had been committed by Mr. Robertson, or the parties with whom he was connected, to stir his indignation, Mr. Duncan arose from his seat in the Senate, of which body he was a member, to a question of "personal and official privilege," and delivered a broadside philippic, full of vindictive vituperation against Mr. Robertson, the Columbia press, and the citizens who favored a certain settlement of the canal litigation, in terms of condemnation and most horrible suggestion, which are thus analyzed by the presiding Judge from the defendant's answer:

"That defendant had deceitfully induced certain men to represent to the Canal Commission that it was to the interest of the State and this community to settle the canal controversy, when, as a matter of fact, such men were seeking only to promote the selfish interests of defendant, as a result of his deceitful procurement. That defendant had bribed or had improperly influenced the newspapers to circulate propaganda that it was to the interest of the State to make the settlement, when in fact such newspapers were seeking only to promote the selfish interests of the defendant, as a result of his deceitful procurement.

"That defendant had entered into a deceitful arrangement with Stone Webster, Inc., whereby they should undertake to settle the canal controversy with the Canal Commission apparently for the benefit of themselves, when, as a matter of fact, they were acting only to promote defendant's interests, pursuant to such deceitful arrangement. That defendant had been feeding on dead men's bones; that is, that defendant was a ghoul. That the Company which defendant represents had lived on its betters, had taken advantage of the financial situation, and had never done anything for the development or advancement of the City of Columbia or of South Carolina. That defendant was an octopus. That defendant had dominated Chambers of Commerce and little towns, and had deceitfully persuaded them to take an active part in the matter, apparently for the best interests of the public, but in reality to promote the selfish interests of defendant, pursuant to his deceitful persuasion."

In his "usual vigorous style" he held the defendant up in the most august deliberative body in the State to the contempt and hatred of all good men, as one who had done nothing for the community of his birth, but had feasted upon the misfortunes of others — as one who was then through fraud and deceit, and the domination and control of his fellow citizens, evading his just obligation to the State. He ransacked history, sacred and profane, for the outstanding figures of perfidy, treachery, and deceit, with whom to compare his victim; he characterized him as a ghoul, among Eastern nations an imaginary evil being who robs graves and feeds upon corpses, the hyena of the human race:

"They are neither man nor woman;

They are neither brute nor human;

They are ghouls."

He could not have been more vituperative and vindictive than if he had invoked —

"* * * some chosen curse,

Some hidden thunder in the stores of Heaven,

Red with uncommon wrath, to blast the man

Who owes his greatness to his country's ruin."

It is apparent that he desired the fullest publicity to his address, which could have been delivered in executive session, but was not; he admits that he wanted it broadcast throughout the State; he knew that newspaper reporters were present, and gave them afterwards information about his speech, knowing that it was to be published; he admitted, when asked for the evidence upon which he had made the damnifying charges, that he had "nothing in the world but the atmosphericevidence."

Mr. Duncan has convicted himself of having made a most bitter personal attack upon Mr. Robertson, within the safety zone of the State Senate, under circumstances of extreme vindictiveness; an attack gratuitous and uncalled for by any urge of personal or official duty; most extraordinary in coming from a man who less than a year before had made a "personal" appeal for financial assistance; an attack upon such baseless "atmospheric evidence" that upon the trial of the case not the slightest effort was made to sustain the charges. I am not surprised that his counsel were not willing that it should appear in the record.

I see nothing in his address to the Senate which justifies the invocation of personal privilege in making such an attack; not a defense, as is customary. If any part of it related to "official" privilege (which is not familiar to me, although with some experience in such matters), the proper course for presentation would have been through the commission of which he was a member.

It was in reply to such an attack, slanderous to the last degree, that the publication, true, absolutely true, in every detail, admittedly so, was issued. The most natural, and, I think the only, inference to be drawn from it is that Mr. Robertson, smarting under the charges of chicanery and corrupting practices, presented in most repulsive form, and with the scorn which blistered as the leash of a scorpion's tongue, was moved in self-defense to show that Mr. Duncan had made them because of the refusal of his application for a loan, under the circumstances set forth in the publication, and not from the spirit of truth; in keeping with the apprehension he entertained upon receipt of the letter in the event of refusal, but worse, as it was personal, and not official, antipathy that he had provoked. As Mr. Robertson says in his testimony:

"When I was advised of Mr. Duncan's speech in the Senate, I was naturally very much incensed, and I intended that the public should have the benefit of his communication to me, so that they could see both sides, and why possibly his motive was rather that of ill will than trying to do any good for the State."

I feel assured that Robertson intended this, and only this, and that no other reasonable inference can be drawn from the publication; and, even if it went to the extent of suggesting impropriety, Mr. Duncan is shown to have been the author of his own misfortune. It is very clear, from Mr. Robertson's reply to Mr. Duncan's application for a loan, that he did not then consider that Mr. Duncan had committed the crime of soliciting a bribe. He doubtless thought then, as he testified, that it was an act of impropriety, embarrassing both to himself and to Mr. Duncan. As he states:

"When I got the letter, I was very much perplexed and worried, because I knew if I declined, I would run the risk of incurring the enmity of a member of the Canal Commission, and, if I made the loan, I would lay myself liable for being suspected for [of?] trying to influence the commission."

That the act of Mr. Duncan, in attempting to negotiate a loan with Mr. Robertson under the circumstances, was one of impropriety, I do not think that any one will deny. The extrinsic facts alluded to by Justice Marion, and stated above, simply emphasize that impropriety, and add nothing in the way of an inducement in supporting the innuendo. It was an act of impropriety, affecting both himself and Mr. Robertson; in subjecting himself to the suspicion that he was using the great power of his official position to induce a loan; and in placing Mr. Robertson in the embarrassing situation of apprehension that, if he refused the loan, he would generate a hostile attitude in Mr. Duncan to the great financial interests he had at stake, and that, if he granted it, he would subject himself to the suspicion of attempting to influence a most "vigorous" member of the Canal Commission.

It seems clear that, before Mr. Duncan could have been convicted of soliciting a bribe, the State would have been obliged to show, not only that Mr. Duncan had requested a loan of Mr. Robertson, but that he had promised to give something out of his official relation in return for the accommodation; and it seems equally clear that the imputation or inference should contain these elements of the offense before the publication can be held libelous per quod.

It is significant, in view of the interpretation that the publication amounted to a charge of solicitation of a bribe, that not a word was said in Mr. Duncan's letter to Mr. Robertson in reference to his position on the Canal Commission; not a word by Mr. Duncan suggesting any favor to be extended by him to Mr. Robertson in return for the loan. It is upon its face a plain, open business proposition, that Mr. Robertson should make him a loan of $25,000.00, upon security six times in value and to be inspected by a representative of Mr. Robertson on the ground. If the interpretation contended for by the plaintiff is to be sustained, then it must be inferred from the letter that such was Mr. Duncan's intention; a conclusion which Mr. Duncan repudiates, and which, to my mind, is altogether unthinkable. It is hardly conceivable that Mr. Duncan would have offered security "worth six times the amount of the loan desired," to be inspected and approved by Mr. Robertson's representative, if he had not intended to repay the loan, assuring Mr. Robertson, in addition, of the maturity of certain building and loan stock, which would mature in three years, the length of the credit, out of which the loan would be repaid. It seems to me an exceedingly far-fetched innuendo that Mr. Duncan expected to render Mr. Robertson favorable consideration as a member of the commission, in return for a loan which he says in his letter he could readily obtain from other sources, in return for a plain business, well-secured, accommodation; and it is evident that the charge of soliciting a bribe could not be sustained, in the absence of an intention on Mr. Duncan's part to render some official service in return for the accommodation.

But, putting the very worst construction possible upon the publication of the letter with a statement of the extrinsic facts, and assuming that Mr. Robertson intended to convey the impression that Mr. Duncan applied for the loan, under the circumstances, upon the assurance or belief that Mr. Robertson would be afraid, on account of his official connection with matters in which Mr. Robertson was vitally interested, not to grant the financial accommodation requested; in other words, that Mr. Duncan was using the "big stick" of his official position to induce favorable action upon his application; in the first place, no such innuendo is suggested in the complaint or discussed in the opinion of Mr. Justice Marion.

Inferences are attributed to Mr. Robertson from the publication. Without the slightest intention to reflect upon Mr. Duncan, except as to the impropriety of his application under the circumstances, it must be conceded that that act of impropriety was susceptible of the inference that he was using his official position to induce the loan. If the innuendo had charged that as an inference to which the publication, coupled with the extrinsic facts alleged in the complaint, was susceptible, I think that the Court would have been justified in so holding. Mr. Duncan had never before had financial dealings with Mr. Robertson; he had but two days before his application for the loan been appointed a member of the Canal Commission under the Act approved that day; he knew that Mr. Robertson was largely interested in the pending matter of a disposition of the canal; he knew that the Canal Commission was vested with large recommendatory powers at least, in connection with a settlement of the pending differences between the State and the canal owners; he had need of financial assistance; he must have known that his position as a commissioner would naturally incline Mr. Robertson to act favorably upon his application.

This may have savored of the inference that he was using his newly acquired power and influence to further his obtainment of the desired loan, which he intended fully to secure and pay at maturity; to inspire a fear in Mr. Robertson that his influence on the commission would be inimical to his interests, if the loan should be refused; but I cannot see how it is possible to say that it savored of the inference that he was "susceptible of bribery," or that he was thereby "soliciting a bribe," which are the innuendoes charged.

The crux of the inquiry is whether or not the extrinsic facts, stated by Justice Marion to have been alleged in the complaint, add anything to the construction of the publication as a defamatory imputation. They are, as stated, that the Canal Commission had plenary powers in the settlement of the litigation, and that Mr. Robertson was financially interested in that settlement. As I have stated, those facts simply emphasize the impropriety of Mr. Duncan's application, and lend color to the innuendo that might have been alleged, but was not, that Mr. Duncan was using his official position to induce the loan. This innuendo not having been alleged in the complaint, the defendant had no opportunity of establishing the truth of the inference of which the facts were susceptible, and it cannot be said that he would not have had a fair chance of establishing it.

If, then, the extrinsic facts referred to, add nothing by way of inducement to the strength of the inference alleged in the innuendo, the plaintiff is confined to the terms of the publication as uttered. The facts there stated are not only admittedly true, but the publication is not only not libelousper se, but legally innocuous, because absolutely true. A plaintiff in a libel suit has the right, if he so chooses, to rely solely upon the publication as it was uttered; and if the Court should decide it libelous per se, he is entitled to damages; or, conceding that it is not libelous per se, he has the right to allege certain extrinsic facts — that is, facts dehors the publication — which, coupled with the actual publication, develop the defamatory meaning of the publication. Where he alleges no such extrinsic facts, as in the case at bar, it seems to me clear that he is confined to a reliance upon the publication as it stands as being libelous per se.

In complaints for libel there are (where the publications are not libelous per se) three distinct parts: The inducement, the colloquium, and the innuendo. The inducement contains a statement of the extrinsic facts which, coupled with the actual publication, form the basis of the innuendo; the colloquium contains the application of the alleged defamation to the plaintiff (necessary at common law, but dispensed with by Section 425, Code C.P.); the innuendo contains a declaration giving point and meaning to the matters expressed in the actual publication, coupled with the extrinsic facts alleged to the inducement, not as a statement of new facts, but as the defamatory construction of which the entire combined elements are susceptible to the minds of those who might read the publication. 17 R.C.L., 393.Bell v. Clinton Mill, 129 S.C. 242; 124 S.E., 7.

In the last-cited case the Court said that notwithstanding Section 425 of the Code of Civil Procedure, "the inducement and the innuendo are as essential, under the circumstances stated, as they were at common law." (Note. — Attention is called to the omission of a line in the printed report of this case. 129 S.C. at page 251, line 15 from bottom, which correctly appears in 124 S.E., at page 10, line 7 from bottom of first column, and the insertion of a line which is a duplicate of line 15 from top, 129 S.C. at page 251.)

So in Hubbard v. University, 76 S.C. 510;57 S.E., 478, the Court, referring to the change as to the colloquium made by Section 425 of the Code, said:

"The change, however, does not obviate the necessity of setting out the facts which make language, not in itself defamatory, have that import [I interpolate, the inducement]."

In that case it is declared that the "universally accepted rule" is as thus stated in 13 Enc. P. P., 32:

"If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts andcircumstances must be set forth and connected with thewords charged, by proper averment." (Italics supplied.)

Reaffirmed in Oliveros v. Henderson, 116 S.C. 77;106 S.E., 855.

And the Court adds this:

"Many authorities will be found in other jurisdictions to the effect that the Code of Procedure has made no change in this rule of pleading. * * * Indeed, the rule is so manifestly founded on common sense and justice that probably

NOTE: In 129 S.C. 251, line fifteen from the bottom should read: "the bystanders understood. The import of the words used." — Reporter. nothing but an explicit enactment would lead the Courts to depart from it."

In the Hubbard case, it was held that, as the publication was not libelous per se, and as the complaint contained no allegation that on account of certain extrinsic facts it was understood by those who read it as defamatory, the complaint was demurrable. Exactly the situation in the case at bar.

In Power v. Miller, 2 McCord, 220, it was held that words charging a person with perjury are not actionable "unless it appear by a colloquium [inducement?] or by the words themselves, that they had reference to an oath taken in the course of a judicial proceeding."

In Ashbell v. Witt, 2 Nott McC., 364, it was held likewise that, where words are not actionable without a colloquium(inducement?), of which no evidence is given, the case will not be referred to the jury, but the Court will nonsuit the plaintiff.

In 37 C.J., 22, it is said:

"When the words are not actionable per se, it is necessary to plead in the inducement such extrinsic facts as will render the words actionable. * * * The averments must be of facts and circumstances which, by way of introduction, show the words in question to be actionable."

It is universally held that, the office of the innuendo being as above stated, the actual publication, coupled with the extrinsic facts alleged in the inducement, in its import, cannot be enlarged, extended, or changed by the innuendo. Thus in the Bell case, supra, the Court said:

"The import of the words used, coupled with the inducement, * * * the innuendo cannot enlarge, extend, or change" (citing Hubbard v. University, 76 S.C. 510;57 S.E., 478; 17 R.C.L., 393).

In Wilson v. Hamilton, 9 Rich., 382, the Court said:

"The new matter introduced by an introductory averment, in explanation of words doubtfully or ambiguously expressed, admits of proof; but an innuendo which is only explanatory, and connects together facts already known, either from the face of the paper or by reference to extrinsic matter, is never proved, nor admits of proof. * * * An innuendo cannot supply this defect, apparent on the declaration, and, as the necessary allegations are omitted, there was no evidence submitted proper for the consideration of the jury, and the nonsuit was, therefore, properly ordered."

In 37 C.J., 23, it is said:

"The want of a proper inducement or colloquium cannot be supplied by the innuendo. The innuendo cannot be used for the purpose of alleging new matter and extrinsic facts necessary in connection with the alleged publication to constitute a cause of action."

"Words not actionable per se cannot be made so by innuendoes."Penry v. Dozier, 161 Ala., 292; 49 So., 909.Moore v. Johnson, 147 Ky., 584; 144 S.W. 765. Holtv. Ashby, 150 Ky., 612; 150 S.W. 810. Brown v. IndependentPublishing Co., 48 Mont., 374; 138 P., 258. LanstonCo. v. Mergenthaler Linotype Co. (C.C.A.), 147 F., 871; Id. (C.C.A.), 154 F., 42. Wofford v. Press Co. (C.C.A.), 211 F., 961. Smith v. Agee, 178 Ala., 627;59 So., 647; Ann. Cas., 1915-B, 129. Fitzpatrick v. Age-HeraldPublishing Co., 184 Ala., 510; 63 So., 980; 51 L.R.A. (N.S.), 401; Ann. Cas., 1916-B, 753. Pollock v.Evening Herald Publishing Co., 28 Cal.App. 786;154 P., 30. Whitley v. Newman, 9 Ga. App. 89;70 S.E., 686. Wisner v. Nichols, 165 Iowa, 15; 143 N.W., 1020.Cooper v. Seaverns, 81 Kan., 267; 105 P., 509; 25 L.R.A. (N.S.), 517; 135 Am. St. Rep., 359. Hanson v. Bristow,87 Kan., 72; 123 P., 725. Curtis v. Iseman,137 Ky., 796; 127 S.W. 150. Moore v. Johnson, 147 Ky., 584;144 S.W. 765. Spears v. McCoy, 155 Ky., 1;159 S.W., 610; 49 L.R.A. (N.S.), 1033. Bishop v. Smith,198 Ky., 230; 248 S.W. 538. Vinson v. O'Malley,25 Ariz., 552; 220 P., 393; 37 A.L.R., 877. Med. Co. v.Caulk (D.C. Del.), 4 F.2d 126. Bowie v. News, 148 Md., 569; 129 A., 797. Manley v. Harer, 73 Mont., 253;235 P., 757. Bradburg v. Segal, 121 Me., 146; 116 A., 65.Crossland v. Freeman, 7 Boyce (Del.), 195; 105 A., 145.Hendrix v. Register, 202 Ala., 616; 81 So., 558. Wall v.Railroad Co., 18 Ga. App. 457; 89 S.E., 533. Wright v.Great Northern Railroad Co. (Mo.App.), 186 S.W. 1085.Furlong v. German American Press (Mo.), 189 S.W. 385.Irvine v. Barrett, 119 Va., 587; 89 S.E., 904; Ann. Cas., 1917-C, 62. Vitagraph Co. v. Ford (D.C.), 241 F., 681.Talbot v. Mack, 41 Nev., 245; 169 P., 25.

In Flaks v. Clarke, 143 Md., 377; 122 A., 383, the syllabus is:

"The office of an innuendo is to explain the words published, and to give them their true meaning, but it cannot introduce new matter, add to or enlarge the sense of those words, or impute to them a meaning not warranted by the publication, when taken alone, or read in connection with the inducement and colloquium."

"An innuendo cannot be used to change the ordinary meaning of words pleaded and give them a construction which they do not bear." McCormick v. Weinstein, 81 Pa. Super., 163.

"Words not actionable per se may be made to appear actionable by averring such extrinsic facts as will show that they were intended to be slanderous and were so understood. These averments must be distinctly stated in the inducement, and applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendoes." Phoenix Co. v. Robertson,80 Okla. 191; 195 P., 487.

In that case the plaintiff averred no extrinsic facts, and the Court said:

"The publication, without pleading extrinsic facts, would not bring the case within the rule stated above."

In its opinion the Court quotes an exceedingly clear statement from the Alabama Court in Gaither v. Advertising Co.,102 Ala., 458; 14 So., 788:

"In other words, the Court determines whether the words used are susceptible of the meaning sought to be given to them by the innuendo. If this inquiry is decided by the Court against the contention of the pleader, this puts an end to it; for it is not permissible to make proof that the words employed were uttered in the sense, or with the meaning, imputed to them in the innuendo. That is not the subject of proof. If it be decided by the Court that the words are susceptible of the meaning the innuendo seeks to ascribe to them, then it becomes a question for the jury to determine, under all the circumstances, whether they were intended to mean what the innuendo avers they did."

The complaint in this case contains no inducement; there are no extrinsic facts stated to add a new complexion to the publication; there is no implication stated in the publication from which an inference derogatory to the plaintiff might be inferred; the publication states only conceded facts; there is no controversy or doubt as to a single one of them; the reliance of the plaintiff is upon an inference or inferences drawn from these admitted facts; this is not permissible in order to make out the charge of libel.

In Simons v. Burnham, 102 Mich., 189; 60 N.W., 476, it is said:

"Actions for slander and libel do not lie upon inferences (Townsh., Sland. L., § 133), though we must recognize a distinction between inferences which are the natural result of implications contained in the language of the publication — which may, in a sense, render it ambiguous, and justify a construction at variance with the strict meaning of the words as ordinarily used — and inferences drawn only from the facts themselves. In the former case the action may lie — not because of the inference, but by reason of the implication; in the latter it will not."

"A party sued for libel may justify the charge as laid and deny the innuendo, and that when the truth is made to appear the fanciful or apparently warranted explanation by way of enlargement must disappear." American Tel. Tel. Co. v. Fry, 8 Tenn. Civ. App. 159.

It may be suggested that the foregoing furnished the ground for a general demurrer, and that, if the evidence supplied the needed averment, the defendant cannot now be heard to complain. While the Code specifically provides that the objection that a complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur upon that ground, which means that, notwithstanding such failure, the defendant may object to testimony tending to supply the deficiency, and may move for a nonsuit or a directed verdict, I think that, if the evidence is received without objection, the defendant will have lost the benefit of his adversary's neglect. In the case at bar there is in the evidence not a single extrinsic fact that would lend color to the alleged defamatory character of the publication. The only fact which bears even the suggestion of such color is that the occasion of the publication was the vitriolic explosion of the Senator from Union County, which furnished the amplest justification in Mr. Robertson to present the facts in explanation of his unwarranted gratuitous attack; a fact which the plaintiff in the former appeal inthis case (131 S.C. 485; 127 S.E., 607) sought to havestricken out.

The foregoing considerations, in my opinion, sufficiently demonstrate the duty of the Circuit Judge to have granted a nonsuit; but there is another ground upon which it should have been granted, and that is the immunity to which Mr. Robertson was entitled under the principle of qualified privilege, much more substantial, in my opinion, than the "personal and official privilege" under the justification of which Mr. Duncan secured the ear of the Senate. Upon the former appeal in this case (131 S.C. 485; 127 S.E., 607), in which the plaintiff sought to have stricken from the defendant's answer all reference to his senatorial tirade, the Court said, approving McLeod v. Publishing Co., 126 S.C. 366;120 S.E., 70:

"Indeed, there is authority for the proposition that one, in an honest effort to defend himself from a charge, if it is done without malice, may make statements that would otherwise be slanderous and then go free because his reply is entitled to a privilege,"

— 17 R.C.L., 364, where it is said:

"In an honest endeavor to vindicate himself and his own interests, a person is often privileged to make statements which would otherwise be regarded as defamatory. Thus, if one's good name is assailed in a newspaper, he may reply, defending himself, and, if his reply is made in good faith, without malice, and is not unnecessarily defamatory of his assailant, it is privileged. Even though false, a publication which is fairly an answer to a libel, if published in good faith for the purpose of repelling a charge, is privileged."

"The law justifies a man in repelling a defamatory charge by a denial or by an explanation. He has a qualified privilege to answer the charge, and if he does so in good faith, and what he publishes is fairly in answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged." 36 C.J., 1267.

I think that both of these conditions concur in establishing the qualified privilege of Mr. Robertson. There can be no question but that his "good name" was not only assailed, but absolutely annihilated, if the senatorial audience gave heed to the invectives of Mr. Duncan. The only basis for his excoriation was "atmospheric evidence," the floating rumors of the unresponsible. What was Mr. Robertson to do? Submit like a cowering cur, or resent it with violence? The law forbids the latter; he was unwilling to adopt the other, and, in my opinion, did what he was legally justified in doing, explain the motive behind the attack, and leave the public to question its truth or justice.

In my opinion, the judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for the entry of an order of nonsuit under Rule 27.

ON PETITION FOR REHEARING AND FOR COURT EN BANC

---

Dissenting Opinion

I agree entirely with the denial, in the proposed order, of the contention that a single Justice has, under any circumstances, the right to demand a convocation of the Court en banc, as it is denominated. As to certain other matters discussed in the order, and as to the conclusion that the petition should be dismissed, I do not agree, for the reasons which follow:

In the proposed per curiam order it is stated:

"* * * The call for such Court should be made while the Supreme Court has pending before it, and before it hasdetermined, the cause in which the assistance of the Circuit Judges is desired."

If this statement is intended to announce simply a matter of preferred course of procedure, I have no objection to it, provided that the custom heretofore prevailing is observed that, where a dissenting opinion has been submitted, both opinions shall be held for consultation. The statement, however, may be construed as a denial of the power to convoke the Court en banc, after the filing of theopinion. As to this, I think that, until the remittitur shall have been transmitted by the Clerk of this Court to the lower Court, this Court has absolute control of the case. It may withdraw the opinion which has been filed; it may substitute another for it; it may modify it in any manner; it may order a reargument of the appeal; or it may convoke the Court en banc, and open up the entire appeal before the Court as thus constituted.

While perhaps in a majority of instances of the convocation of the Court en banc, it has been ordered before the opinions have been formally filed, this Court has distinctly recognized its power to do so after such event. The case ofState v. Holleyman, finally decided as reported in 55 S.C. 207;33 S.E., 366; 45 L.R.A., 567, was heard at a term prior to October, 1898; on October 31, 1898, the opinionof the Court was filed, affirming the judgment of the Circuit Court, by a divided Court (which at that time was composed of four Justices); the Chief Justice (McIver) and Justice Gary dissenting. See 31 S.E., 362. Thereafter the defendant appellant filed a petition for a rehearing. It does not distinctly appear in the report of the case that a rehearing before the Court en banc was asked, but upon the petition the Court made the following order:

"A question arising under the Constitution of the United States being presented for the determination of this Court in these cases, and the opinions which have been filed showing that `the entire Court is not agreed' as to the determination of that question, it is necessary, under the provisions of Section 12 of Article 5 of the Constitution of this State, that all of the Circuit Judges shall be called to the assistance of the Supreme Court for the decision of such question. Uponthis ground the petition for a rehearing must be granted, and these cases are set, therefore, down for hearing," on January 3, 1899, before the Court en banc.

The case was reargued before the Court en banc, at the date stated, and on June 2, 1899, the judgment of the Court, "thus constituted," was rendered, reversing the judgment of the Circuit Court. This Court did not decline to convoke the Court en banc upon the ground that the opinions had been filed; nor did it hesitate to act upon the patent situation that, although no clause of the Constitution was up for interpretation or construction, a constitutional question was involved, in the application of the Constitution to the admitted facts of the case. It is of interest to observe that the present Chief Justice, then a Circuit Judge, sat as a member of the Court en banc and concurred in the opinions of Chief Justice McIver and Justice Gary, reversing the action of the Circuit Court. It is significant that in the judgment of the Supreme Court as then constituted, the Court en banc, no reference whatever was made to the judgment of the Supreme Court as ordinarily constituted, which had been filed, but stayed by order, clearly showing that the judgment of the Circuit Court was the judgment being reviewed on appeal, and not that of the Supreme Court.

The case of Traynham v. Railroad Co., finally decided as reported in 92 S.C. 43; 75 S.E., 381, was heard at the June term, 1911, of this Court; on July 8, 1911, the opinionof the Court was filed, affirming the judgment of the Circuit Court in favor of the plaintiff. Mr. Justice Gary, later Chief Justice, filed a dissenting opinion. See 71 S.E., 813. On July 12, 1911, the defendant appellant filed a petition for a rehearing before the Court en banc, upon the ground that there was involved in the cause a question of constitutional law, upon the determination of which the entire Court was not agreed. I set out below the entire petition:

"PETITION FOR REHEARING "To the Honorable the Supreme Court of South Carolina:

"The defendant appellant, Charleston Western Carolina Railway Company, hereby petitions for a rehearing of this case in order that this Court may call to its assistance the Circuit Judge as provided by Section 12 of Article 5 of the Constitution of 1895, as well as by Section 19 of an Act entitled `an Act to provide for the organization of the Supreme Court, to define its jurisdiction and to provide for the appointments of its officers and to define their powers, approved 19th day of January, 1896, 22 Statutes, page 3'; that is to say, for a rehearing before the Court en banc upon the following grounds and for the following reasons:

"First. It appears that there is involved a question of constitutional law upon the determination of which the entire Court is not agreed, and this defendant is entitled to a rehearing before the Court en banc under the provisions of the Constitution referred to above and as construed by this Court in the case of State v. Holleyman, 55 S.C. 235;31 S.E., 362; 33 S.E., 366; 45 L.R.A., 567.

"Second. The main opinion of the Court in this case, written by Mr. Chief Justice Jones and concurred in by Messrs. Justices C.A. Woods and D.E. Hydrick, construes the Act of the Legislature of South Carolina involved in this case as applying to interstate commerce, because the opinion holds and decides that the shipment is interstate. It is, therefore, respectfully submitted that the said Act of the Legislature of South Carolina is unconstitutional, null, and void, as being in conflict with Article 1, Section 8, clause 3, of the Constitution of the United States, which confers on Congress power to regulate interstate commerce with foreign nations and among the several States, and denies to the State of South Carolina the power to pass any Act which undertakes to regulate interstate commerce or burden the same; (b) the Act in question as construed by this Court regulates interstate commerce, in violation of the provisions of the Constitution of the United States above referred to, and places an unreasonable burden on such commerce.

"Third. It is further respectfully submitted that the decision of the Court in effect is a regulation of interstate commerce and in conflict with the provisions of Article 1, Section 8, clause 3, of the Constitution of the United States, which denies to the State, either by Act of the Legislature or by a decision of its Courts, the right to regulate interstate commerce or burden it in any way.

"The decision of the Court in the case determines a question arising under the Constitution of the United States, to wit, under Article 1, Section 8, clause 3, and the opinions which have been filed show that the entire Court is not agreed as to the determination of said question. Mr. Justice Gary dissents in his opinion from the majority of the Court, and holds that the Act is a burden on interstate commerce, and further that a shipment during its actual transportation in interstate commerce cannot be subjected to State legislation at any point along the line of transportation, whether before or after reaching its destination. In this situation this case falls squarely within the provisions of Section 12 of Article 5 of the Constitution of South Carolina, and entitles this defendant, as a matter of law, it is respectfully submitted, to a rehearing before the Courten banc, and particularly so in view of the decision of this Court as announced in the case of State v. Holleyman,supra.

"Wherefore the defendant petitions for a rehearing of the case before the Court en banc, and that an appropriate order may be made by this honorable Court in that behalf, and in the meantime the remittitur be stayed until the further order of this honorable Court."

The petition was granted, and the case set down for reargument before the Court en banc at the November term, 1911. I have not before me a copy of the order, but it is fair to assume that it was based upon the grounds stated in the petition, for which reason I have incorporated herein the petition. This Court did not decline to convoke the Courten banc upon the ground that the opinions had been filed; nor did it hesitate to act upon the patent contingency that, although no clause of the Constitution was up for interpretationor construction, a constitutional question was involved,in the application of the Constitution to the admitted factsof the case.

It is of interest to observe that the present Chief Justice, then an Associate Justice, sat as a member of the Courten banc, and concurred in the leading opinion reversing the action of the Circuit Court. And in this connection it is important to observe that the Court en banc, as it has come to be designated for convenience, is not a Court establishedto hear appeals from the Supreme Court, as ordinarily constituted. It is the Supreme Court differently constituted, and its province is to pass upon the appeal from the lower Court; the appeal to the Supreme Court, as ordinarily constituted, is thereby transferred to the Court en banc, as if it had never been heard or considered by the Supreme Court.

II. I do not agree with the statement in the order that:

"* * * The privilege of calling to the aid of the Court the Circuit Judges is a matter entirely for the Court and its Justices; it is not a right given to a litigant. The Court, and the Justices thereof, will therefore, when it is deemed advisable, without petition or suggestion from a party to a cause pending before it, call the Court en banc." (Italics added.)

It does not appear to have been apprehended by the learned Justice who prepared the order that there are two distinct contingencies in which it is made mandatory upon the Chief Justice to convoke the Court:

(1) When it shall appear to the Justices, or any three of them, that there is involved a question of constitutional law, or of conflict between the federal and State laws, etc., "upon the determination of which the entire Court is not agreed."

(2) Whenever the Justices or any two of them, desire it,on any cause or question before the Court.

In City of Florence v. Brown, 49 S.C. 332;26 S.E., 880; 27 S.E., 273, the Court said:

"Both the Constitution and the statute above referred to provide for but two contingencies in which the Circuit Judges shall be called in: (1st) Where a constitutional question is involved; 2d where at least two of the Justices of this Court desire that the Circuit Judges shall be called in."

It is manifest that the second contingency is the creature of the desire, option, volition, of the entire Court, or of any two of the Justices, in any cause, or upon any question, constitutional or otherwise. The exercise of that "desire" is necessarily committed to the Justices, and a suggestion from a litigant, who is vested with no right to such exercise, would obviously constitute at least an act of impropriety, if not impertinence.

But the first contingency is not the creature of the desire, option, volition, of any number of the Justices, or even of the entire Court. If it should appear to the Court, or to any three of the Justices, that in the appeal from the Circuit Court, there is involved a question of constitutional law, upon the determination of which the entire Court is not agreed, the Constitution by its terms, specifically declared to be mandatory (Article 1, § 29), imposes the inescapable duty upon the Chief Justice to convoke the Court en banc. The unbidden and perhaps unwelcome guest is at the door; the Constitution says that he shall be admitted. It is not for this Court to say that the exercise of a right, guaranteed by the Constitution, to have the question of the invasion of the Constitution tried by a Court constituted as it has prescribed, "is a matter entirely for the Court and its Justices;it is not a right given to a litigant."

The vital question, then, is first presented: Does the appeal in this case, from the judgment of the Circuit Court, involve a question of constitutional law? I can offer no more convincing evidence of the fact that it does than to quote from the opinion prepared by Mr. Justice Marion, at the time a member of this Court, which has received the approval of four of the Justices of this Court as now constituted:

"Appellants' fourth general proposition is that the trial Judge erred in charging the law of damages. It is contended (exception 14) that the Court erred in charging as follows: `If the jury find from the evidence, by the greater weight thereof, that the publication in question was libelous, then the plaintiff would be entitled to recover such sum by way of actual damages as the jury in its discretion may think proper to compensate him for his injury, including the humiliation which he may feel and may have suffered by reason of the publication, and the jury are instructed that, if they find the publication was libelous, the plaintiff wouldbe entitled to substantial damages.' The error assigned is (a) that the charge was in respect of matters of fact, and soviolated Section 26 of Article 5 of the Constitution; (b) that the amount of damages was in the sound discretion of the jury, etc.; and (3) that the charge was peculiarly prejudicial, in view of plaintiff's failure to offer testimony of any actual damage, and in view of defendants' testimony going to mitigation and reduction of damages. It is further contended (exception 15) that the Judge, in violation of theconstitutional inhibition, intimated to the jury his opinion that plaintiff's actual damages should be increased, and not diminished, and that plaintiff should be awarded punitive damages by charging as follows," etc.

Mr. Justice Marion then proceeds to furnish the most conclusive proof that a question of constitutional law was involved in the cause, by considering and deciding it.

The question is not whether the conclusion reached by Mr. Justice Marion is correct, but whether the issue, raised by the exceptions, that the Circuit Judge violated the provisions of Article 5, Section 26, of the Constitution, "involved a question of constitutional law." His consideration of it, and the statement of his conclusion that the charge, as amatter of law, was not in violation of the Constitution, leave no possible room for doubt that a question of constitutional law was involved in the appeal. If it was so involved, and it appears that in its determination the entire Court is not agreed, the constitutional right of the appellants to a convocation of the so-called Court en banc became complete, notas a matter of privilege, to be awarded at the pleasure or will or discretion of this Court, but as a matter of constitutionalright — demandable; a consideration which clearly marks the distinction between the two contingencies under which the Court en banc may be convoked.

That the entire Court is not agreed upon the resolution of the constitutional question involved, it would be sufficient to say that, as a member of the Court, I do not concur in the conclusion of the Court that in the charge of the trial Judge complained of he did not violate the provisions of Article 5, § 26, of the Constitution. I do not, of course, contend that my single opinion that a constitutional question is involved in the appeal entitles the petitioners to a convocation of the Court en banc. Under the express constitutional provision, that contingency must appear to at least three of the Justices of this Court. My effort shall be to convince at least two other members of the Court that that contingency is presented; and, if so, the duty of calling in the Circuit Judges to hear the pending appeal is mandatory.

III. The order which has been proposed, dismissing the petition for a rehearing and a convocation of the Court enbanc, is I understand it, is based upon two propositions, which in my respectful opinion are entirely erroneous:

A. That a question of constitutional law is presented only where an interpretation or construction of a clause of the Constitution is under investigation.

B. That, where this Court has decided in favor of the constitutionality of a law or other matter, that fact is conclusive that no constitutional question was involved.

A. If this proposition should be sustained I do not doubt but that 90 per cent. of constitutional questions would be held to be not constitutional questions. Constitutional questions arise under either of two conditions:

(1) The interpretation or construction of a certain clause, which under many circumstances is so plain and unambiguous as to constitute its own interpretation; in others, not.

(2) The application of an interpreted clause to a given situation, presenting the issue of the validity of a statute, or of a judicial ruling or determination.

In the case at bar there is no question as to the interpretation or construction of Article 5, § 26; it is perfectly plain and unambiguous: "Judges shall not charge jurors in respect to matters of fact, but shall declare the law." Hence, if there is a question of constitutional law involved, it is in the application of this clause to the admitted facts in reference to the charge of the Circuit Judge. There is no question but that he did charge as complained of:

"* * * The jury are instructed that, if they find the publication libelous, the plaintiff would be entitled to substantialdamages."

The defendants moved for a new trial upon the ground that this charge was a violation of the clause quoted; the motion was overruled. The defendants excepted to the judgment entered on the verdict upon the same ground. The matter was fully argued at the hearing before this Court, and was fully discussed and considered in the opinion of Justice Marion, which has been approved by a majority of this Court. The proposed order declares:

"All the appellants have done was to allege that as a matterof fact — not as a matter of constitutional law — the Circuit Judge violated the quoted provision. The question, therefore, before this Court, has been, not as to the intention or effect of the constitutional provision, but if the language used by the Circuit Judge in his charge to the jury was within the constitutional inhibition."

Certainly no question of fact is involved in that issue. There is no question as to the interpretation of the clause of the Constitution; there is no question as to what the Circuit Judge charged as a matter of fact; and necessarily, upon the conceded facts, the only issue that could have been raised is one of law, of constitutional law. Of course, in the illustration employed in the opinion, where the constitutional right to a jury of 12 men might be involved, the primary issue would be one of fact, whether the jury actually was composed of 11 or 12 men. If, as a matter of fact, it should appear that the jury was properly constituted, there could arise, of course, no constitutional question. If, however, it should appear that only 11 men sat on the jury, the integrity of the jury, and the validity of the objection to its action as thus constituted, would necessarily have to be determined by the application of the constitutional provision in question, which of necessity presented a question of constitutional law.

In Waggoner v. Wichita, 273 U.S. 113; 47 S.Ct., 271;71 L.Ed., 566 (decided January 3, 1927), the plaintiff contended that a certain tax assessment was violative of the Fourteenth Amendment; the District Court held that it was not; on writ of error the Circuit Court of Appeals held the same; on writ of error the Supreme Court held that, as the appeal involved a question of constitutional law, it should have come directly to that Court; rather than remand the case to the Circuit Court of Appeals, with direction to transfer it to the Supreme Court, that Court entertained the appeal and confirmed the holdings of both of the inferior Courts. The fact that both had decided the issue against the constitutional objection did not, manifestly, in the mind of the Supreme Court, alter the conclusion that a constitutional question was involved.

A "question of constitutional law" embraces scores of rights and immunities under the Constitution, the protection under which, to the citizen, does not at all involve an interpretation or construction of any clause of the Constitution, but the application of the Constitution to the state of facts undisputed: Religious worship, freedom of speech, equal protection of the laws, taxation, bills of attainder, ex post facto laws, right of suffrage, elections, dueling, Courts public, slanders, seizures, double jeopardy, bail, corporal punishment, contempt, habeas corpus, imprisonment for debt, and many others. Could it be contended that, where a person claims such rights or immunities, the issue does not involve a question of constitutional law, for the reason that there is no question as to the interpretation of the particular clause under which the right or immunity is claimed? The right or immunity is often claimed because there is no question as to the interpretation.

There are 46 cases cited in the notes to Article 5, § 26, in which this Section was considered in its application to the admitted facts; in some the constitutional contention of the losing suitor was sustained; in others, not. Can it be said that not one of those cases involved a constitutional question, because the interpretation or construction of the clause was not before the Court?

"Where the constitutionality or legality of a fine is contested, appeal lies, irrespective of the amount." Ex parte Travers, 3 La. Ann., 693.

"* * * Constitutional law treats [of] the relations of the government with the individual from the standpoint of the rights of the individual." Goodenow, Comp. L., 8.

In Carter v. McClaughry, 183 U.S. 365; 22 S.Ct., 181;46 L.Ed., 236, the petitioner filed a petition for a writ of habeas corpus, alleging that his imprisonment was violation of the Constitution of the United States, Fifth Amendment, which provides that:

"Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

The Supreme Court held that it had jurisdiction upon the ground that the case involved the application of the amendment to the admitted facts. There was no controversy as to the interpretation of the amendment.

The Illinois statute provides that an appeal shall go directly to the Supreme Court, where the case involves a construction of the Constitution. In Reid v. Chicago, 20 Ill. App. 149, it was held that the Supreme Court has jurisdiction when the case involves a question whether drawing off water from a stream, subject to an easement of abutting property owners, amounts to a taking of property within the Constitution. Also a judgment finding defendants guilty of contempt for refusal to permit an inspection of their books, where the defense was that the order violated constitutional rights. Denison v. Schermerhorn, 257 Ill., 128;100 N.E., 491.

In Wiley v. Sinkler, 179 U.S. 58; 21 S.Ct. 17;45 L.Ed., 84, it was held that the right to vote for members of Congress was derived from the Constitution of the United States, and that the Court had jurisdiction of an action for damages for the refusal of the exercise of such right, as one arising from the Constitution. There was no controversy in that case as to the interpretation of the Constitution, but it was over the application of the Constitution to the admitted facts.

"A question of constitutional law is involved where the question presented by an appeal to the appellate Court is whether the trial Court erred in refusing a demand for the submission of the case to a jury." Tinsley v. Kemery,83 Mo. App. 94.

Also:

"Where the right to a jury trial is claimed, and its denial excepted to, at every stage of the proceedings." Creve v.Tamm, 138 Mo., 385; 39 S.W. 791.

The Judicial Code of the United States, in Section 238, provides that a writ of error from the Supreme Court to a lower Court shall lie "in any case that involves the construction or application of the Constitution of the United States." In Berry v. Davis (C.C.A.), 15 F.2d 488, it was held that the Supreme Court had exclusive jurisdiction of an appeal from a judgment of a District Court, on petition for mandamus to compel county and precinct registrars to register negro voters. It was held to involve a dispute under the Fourteenth and Fifteenth Amendments. The case did not involve an interpretation or construction of those amendments, but their application to the admitted facts.

In Empire State-Idaho Mining Developing Co. v. Hanley,205 U.S. 225; 27 S.Ct., 476; 51 L.Ed., 779, it is held "* * * that it is only when the Constitution of the United States is directly and necessarily drawn in question that such an appeal can be taken, and the case must be one in which the construction or application of the Constitution of the United States is involved as controlling."

How it can be doubted, in the present case, that the Constitution of South Carolina is "directly and necessarily drawn in question," in its construction or application to the situation presented, I cannot conceive. If so, it necessarily follows that the appeal involved a "question of constitutional law."

In Pierce v. Creecy, 210 U.S. 387; 28 S.Ct., 714;52 L.Ed., 1113, it was held that, in habeas corpus proceedings, the contention of the petitioner that the indictment upon which extradition papers had been issued did not charge a crime against the federal government, within the meaning of the Constitution regulating extradition, involved the construction of the Constitution.

Hundreds of cases might be cited where it was held that a question of the application of the Constitution to a given state of facts, in the Federal Courts, was a question of constitutional law.

The order declares:

"In almost every case decided by a jury now brought to this Court complaint is made, and generally without foundation therefore, that the Circuit Judge has violated the provisions of Article 5, Section 26, by charging on the facts. If this Court should accept this `pretext' of raising a constitutional question, and on account thereof call in the 14 Circuit Judge of this State every time there is a disagreement as to an exception raising a `constitutional question' as to charge on the facts, and every time a defeated litigant made demand therefore, because the Constitution, in his opinion, had been violated, we would bring about a situation even more unfortunate than the one suggested by the great McIver."

It should be remembered that the Constitution does not provide for the convocation of the Court en banc upon the "pretext" of a constitutional question being involved. Two conditions must be met: (1) At least three Justices of the Court must be satisfied that there is involved a question of constitutional law; and (2) that in the determination of that question the entire Court is not agreed. If these conditions appear to be present, it can hardly be that the injection into the case of the constitutional question can justly be characterized as a "pretext." If the claim of a constitutional question should be considered so devoid of merit as to constitute a "pretext," it would scarcely pass both of these requirements.

It is not within the province of this Court to consider what it conceives may be the consequences of a plain constitutional mandate; that is a consideration presumed to have been in the minds of the framers of the Constitution; and, whatever inconveniences may appear to result from it, this Court has no right to set its judgment against that of the Constitution makers. As Chancellor Harper states in the Pell v. Ball case:

"It concerns the public that the Constitution should be maintained inviolate; and the Legislature [I interpolate,here the Constitution itself] made it the duty of the Court to submit all such questions to all the Judges of the State."

B. It is insisted that no question of constitutional law is involved, for the reason that this Court has decided that the charge of the Circuit Judge was not in conflict with the Constitution. Here the misapprehension is conspicuous, that the decision of the Court en banc is a review of the decision of the Supreme Court which has been filed. I have endeavored to demonstrate that such is not the case. If the Chief Justice, under the constitutional mandate, should order that appeal to the Court en banc, the opinions of this Court which have been filed would become absolutely of no force whatever, except as persuasive arguments of the correctness of the opposing views. The appeal would be from the judgment of the Circuit Court, and the decision of the Court and the decision of the Court en banc would be "final and conclusive," regardless of the majority decision of this Court, as has occurred in several instances.

The only plausible argument to sustain this position, as I see it, is a supposed analogy between the old Court of Errors and the Court en banc. There can be no doubt but that the conception of a Court en banc is attributable to the constitution and powers of the old Court of Errors, but they are so entirely different from the constitution of what we have come, simply for convenience, to designate as the Court en banc, that a comparison between them fails to supply, from a supposed analogy, any light whatever upon the point at issue.

The Court of Errors was an independent Court, composed of the law judges, six in number, and the chancellors, four; the act specifically provides for an appeal from either the Court of Appeals at law or the Court of Appeals in equity; it was vested with the power to make its own rules; and it made them (City Council v. Ahrens, 4 Strob., 241); and its decisions, as long as it existed as a Court, were reported as the decisions of the Court of Errors, found from Rice's Law, A.D., 1838, to 15 Rich., A.D., 1867.

What we have come to refer to as the Court en banc is nothing more than the Supreme Court sitting with the Circuit Judges, who, as the Constitution provides, have been "called to the assistance of the Supreme Court." It has no supervisory control over the Supreme Court; it has no appellate jurisdiction to review the decisions of the Supreme Court; it is more than a consultative Court, for each of the Circuit Judges has as potential an influence in the decision as a Justice of the Supreme Court; it makes and is authorized to make no rules for its procedure; and its decisions are the decisions of the Supreme Court, differently constituted, declared to be and enforced as such.

Great stress is laid upon the following extract from the opinion of Chancellor Harper in the case of Pell v. Ball, 1 Rich. Eq., 419:

"To decide in favor of the validity of a law which is charged to be contrary to the Constitution is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question."

And from it it is concluded:

"To decide that the charge of the trial Judge does not violate the constitutional inhibition against charging on the facts is certainly to decide that there is no constitutional question involved in the case. For, as said by the Chancellor, `The Constitution does not touch the question,'" — developing against the error, as I see it, of apprehending that this Court has rendered a decision, from which an appeal would lie to the Court en banc. The declaration of the great Chancellor above quoted must be taken in connection with the question immediately under review in that case, which was whether a litigant, who had failed in his contention before the Court of Appeals in Equity that a certain order of the Chancellor below was in contravention of the Constitution, had the right suo motu to appeal to the Courtof Errors.

On circuit the defendants contended that, under the Constitution, the Court of Equity was without jurisdiction to divest a party of his title to land (as would be done in cases of partition), except in actions for the partition ofintestate estates; that it could not be done in other cases of tenancy in common. The Chancellor decided against this contention, and upon appeal to the Court of Appeals in Equity, composed of the four Chancellors of the State, the decree of the Chancellor on circuit was affirmed, the Court holding against the claim of unconstitutionality. The appellants then, of their own motion, had the Clerk of the Court of Errors to enter the case upon the docket of that Court, as an appeal from the Court of Appeals in Equity to the Court of Errors, under the seventh section of the Act of 1836, establishing the Court of Errors. The matter before the Court was a motion by the respondents to strike the case from the docket of the Court of Errors. That was the matter under consideration, and not whether a question of constitutional law was involved in the appeal before the Court of Appeals in Equity, as unquestionably there was. The Court of Errors decided that, as the Court of Appeals had decided that there was nothing in the constitutional contention of the appellants, the entry of the appeal upon its docket, without some direction to that effect by the Court of Appeals, was invalid, and granted the motion to strike.

The point in the decision was that the review, by the Court of Errors, of a decision of the Court of Appeals, was not strictly an appeal, which ordinarily implies that it shall be at the option of the losing suitor, but a matter within the discretion of the Court of Errors, and to be ordered by it. The obvious distinction between that case and the case at bar is that in the Pell v. Ball case there was a decision andjudgment of the Court of Appeals, sought to be reviewed by the Court of Errors, while in the case at bar there hasbeen no decision and judgment of this Court, final in its character. The fact that an opinion has been filed, affirming the judgment of the Circuit Court, by no means constitutes a final judgment, so long as the remittitur has been stayed, and the whole case is under the control of this Court. It is not in contemplation of the Constitution that the Courten banc shall review the judgment of the Supreme Court, which, of course, could be done only in case there had been a final judgment of the Supreme Court. When a Courten banc has been convoked, the unmatured judgment of the Supreme Court is suspended, and the whole case, as an appeal from the lower Court, is heard and determined; the judgment rendered is still the judgment of the Supreme Court, although it may be the reverse of the tentative conclusion (made tentative by the convocation of the Courten banc of the Supreme Court.

If, therefore, the above extract from the opinion of Chancellor Harper be correct, it has no application to the case at bar, for the reason that there has been no adjudication by the Supreme Court that the Constitution has not been invaded. The question which would be presented to the Court en banc would be whether the action of the lower Court was an invasion of the Constitution, regardless of the tentative conclusion of the Supreme Court, as evidenced by the opinion which has been filed, but which has not gone into effect.

I do not see the force or correctness of the suggestion that the Court en banc is simply "consultative" in character. I do not think that it can be so considered, in view of the conceded fact that it is the Supreme Court still, and that the vote of each Circuit Judge is as potent as that of any Justice. The Constitution provides that the decision of the Court so constituted shall be final and conclusive. It is impossible, in view of this declaration, to consider its conclusion as simply "consultative."

It is not at all certain but that, if timely application had been made to the Court of Appeals in the Pell v. Ball case, that Court would have certified the case to the Court of Errors upon the presence of the constitutional objections. What that case decides is that, where there has been no such application to the Court of Appeals and it has pronounced final judgment in the case, the losing party cannot,suo motu, docket the case as an appeal case in the Court of Errors. The proper course to pursue is plainly indicated in the following extract from the Pell v. Ball case:

"Upon the opening of a cause in one of the Courts of Appeals, the counsel concerned may move or suggest an order for sending the case to the Court of Errors, as plainly involving a constitutional question; but, if the suggestion be adopted, the order will be regarded as made on the Court's own motion. If the order be refused, then, on the hearing on the merits, counsel will be fully heard on any constitutional question which may appear to them to be involved in the cause, and consequently on the propriety of sending the case to the Court of Errors; and they will not be entitled to be heard a second time, if the point should be decided against them. If any constitutional question be not made at the principal hearing, parties ought not to be permitted to make it by an original application at any time after the judgment is rendered."

The motion to strike the case from the docket was, therefore, granted upon two grounds: (1) That no application was made to refer the case to the Court of Errors, and no order made by the Court of Appeals to that effect; (2) that the matter of reference was not suggested until after final judgment by the Court of Appeals.

Neither of these conditions obtains in the present case, for the case on appeal is still in the bosom of the Court, and subject to its absolute control. I cannot believe that Chancellor Harper meant to declare that the Court of Appeals,after hearing argument upon a constitutional question involved,and considering it, could have, among themselves, decided against the contention of unconstitutionality, andfor that reason held that no constitutional question was involved. That is exactly the position taken in the order to which I object. I consider the parallelism complete between this application by the appellants, and an application to the Court of Appeals under the old practice, before a final decision by that Court, and that then, as now, there could be no question that a question of constitutional law was involved. In this case there is no application to be passed upon by the Supreme Court, as a Court; all that is required is a showing that the appeal which is now pending in the Supreme Court, in the opinion of the three Justices of this Court, involves a question of constitutional law, upon the determination of which the entire Court is not agreed. Of that I do not see how there can be a question.

It is suggested that the contrary conclusion would open the door of the Court en banc to all manner of fictitious claims of unconstitutionality, and greatly hinder the administration of justice. The reply to that suggestion is that under the old practice an order from the Court of Appeals was necessary to establish the presence of an issue of constitutional law, and under the present Constitution three Justices must certify to the presence of such issue. Under either system, the check upon the intrusion of fictitious constitutional issues, "pretexts," was and is complete. The extract quoted from the case of City of Florence v. Brown,49 S.C. 332; 26 S.E., 880; 27 S.E., 273: "We are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved" — must be interpreted in the light of the application made in that case for the convocation of the Court en banc. It is distinctly stated that no question of constitutional law was involved; nothing more than the construction of a Statute involving certain municipal powers. The application was addressed to the exercise of the Court's desire, under the second contingency above stated; and naturally the observation of the Court had reference to the exercise of the power vested in the Court, to convoke the Court at its pleasure. It could not have had reference to the mandate addressed to the Chief Justice when a constitutional question was raised. Besides, I have yet to learn that the infraction of the Constitution is not a "grave question of public concern." As is said by Chancellor Harper in Pell v. Ball, 1 Rich. Eq., 419, so copiously quoted from in the order:

"Constitutional questions were regarded by the Legislature as of great importance, and the decisions of them as affecting not only the party, but the public."

IV. What is considered a question of constitutional law, and the rule to govern the Courts in such an issue, is clearly stated in the case of Salinger v. U.S., 272 U.S. 542;47 S.Ct., 173; 71 L.Ed., 398 (decided November 23, 1926):

"The statutes which define and distribute federal appellate jurisdiction, and make the existence of a constitutional question the test of the right to a review, as also of the Court in which the review may be had, always have been construed as referring to a question having sufficient substance to deserve serious consideration, and not one which is so devoid of merit as to be fanciful or frivolous, or which is not open to discussion because settled by prior decisions [citing cases]. Under a different construction, the restrictions and distributing provisions in the statutes would have little purpose; for constitutional questions of no substance readily could be devised and presented as mere pretexts for obtaining a review on other questions [citing cases]."

That the question here involved, whether the Circuit Judge invaded the province of the jury in charging upon the facts, was one "having sufficient substance to deserve serious consideration, and not one which is so devoid of merit as to be fanciful or frivolous, or which is not open to discussion because settled by prior decisions," is demonstrated by the fact that it received, and I assume deserved, serious consideration at the hands of Justice Marion, who devoted one-sixth of his entire opinion, disposing of nearly 40 exceptions, to a consideration of it, in which he distinctly disapproved of the charge, though holding harmless the error.

I think, too, that it is sufficiently demonstrated that the objection is substantial, and not fanciful or frivolous, by the following observations:

The portion of the charge specifically complained of is this: "* * * the jury are instructed that, if they find the publication was libelous, the plaintiff would be entitled to substantial damages," which means, of course, that the jury must award such substantial damages, in that event. That this was an invasion of the rights and duty of the jury and an infringement of the constitutional inhibition, "Judges shall not charge juries in respect to matters of fact, * * *" I do not entertain a doubt. There are no less than five decisive reasons why the charge complained of was erroneous:

(1) In actions for libel, the award of damages is peculiarlywithin the province of the jury.

In 17 R.C.L., 429, it is said:

"The amount of damages recoverable is peculiarly within the province of the jury."

"Though the law implies some damage from the utterance of words slanderous per se, the amount" of the damages "is for the jury." Smith v. Singles, 6 Pen. Del., 544; 72 A., 977.

In Holmes v. Jones, 147 N.Y., 59; 41 N.E., 409; 49 Am. St. Rep., 646, the Court said:

"But the amount of damages in an action for libel is peculiarlywithin the province of the jury. The jury may give nominal damages, or damages to a greater or less amount,as they shall determine."

To the same effect are Tracy v. Hacket, 19 Ind. App. 133;49 N.E. 185; 65 Am. St. Rep., 398. Hassett v. Carroll,85 Conn., 23; 81 A., 1013; Ann. Cas., 1913-A, 333.Hines v. Shumaker, 97 Miss., 669; 52 So., 705. ArizonaCo. v. Harris, 20 Ariz., 446; 181 P., 373. Hughes v. Samuels,179 Iowa, 1077; 159 N.W., 589; L.R.A., 1917-F, 1088. Shryock v. Calkins (C.C.A.), 248 F., 649. Gambrillv. Schooley, 93 Md., 48; 48 A., 730; 52 L.R.A., 87; 86 Am. St. Rep., 414; 13 A. E. Enc. L., 432. Marks v.Jacobs, 76 Ind., 216. Nolan v. Traber, 49 Md., 460; 33 Am. Rep., 277. Negley v. Farrow, 60 Md., 158; 45 Am.Rep., 715. Devaughn v. Heath, 37 Ala., 595. Coffman v.Publishing Co., 65 Wn., 1; 117 P., 596; Ann. Cas., 1913-B, 636.

(2) Even where the publication is admitted libelous andwithout mitigating circumstances, the jury is vested withthe power in its discretion to award only nominal damages.

"Following the general rule, the question whether plaintiff is entitled to nominal or substantial damages is ordinarily a question for the jury. It is within the province of the jury to allow nominal damages only, in the exercise of its discretion." 37 C.J., 116.

"In an action for libel, where specific allegations and proof as to damages are not made and offered, but the reliance [is] upon the mere publication of the libelous statement, the jury cannot be instructed to limit the amount of recovery to nominal damages, though they may in their discretiondo so." Starks v. Comer, 190 Ala., 245; 67 So., 440.

(3) The award of substantial damages must be basedupon the injury sustained by the plaintiff in his woundedfeelings, mental suffering, soiled reputation, or loweredstanding in the community. To charge that in a particularcase a plaintiff is entitled to substantial damages is to assumean issue of fact in this respect, which should be left to thejury.

In 17 R.C.L., 430, it is said:

"The following elements may be taken into consideration in assessing such damages: Injury to feelings, mental suffering, injury to character and reputation, and similar injuries incapable of definite money valuation; the nature of the imputation, including the time, manner, and language in which the charge was made, and the character, condition, and influence of the parties."

"Under an allegation of general damages only, the issue is: What damages has the plaintiff suffered generally in the community where he is known, by the publication of the defamatory matter? Id."

It is conceivable (and I have not the slightest purpose to intimate, even, that the plaintiff comes within such description) that the person libeled may be so devoid of character, so beggared in reputation, "none so low as to do him homage," that an injury to his character, reputation, or standing in the community is impossible. If, then, the damages are to be measured by the injury one has sustained in such character, reputation, or standing, to charge a jury that the plaintiff, in a particular instance, is, upon proof of the libel, entitled to substantial damages, is to assume that there has been an injury to such character, reputation, or standing — that he has sustained in the community a character or reputation susceptible of being injured to a substantial degree.

"The defendant was liable for the natural consequences of the tort which it had committed. * * * Whether those were of a character to entitle the plaintiff to substantial damages, or only to nominal damages, was for the jury to decide, and they were, in effect, so instructed." Bishopv. Journal, 168 Mass. 327; 47 N.E., 119.

"There is no presumption as to general reputation or character, and requested charge that law presumes plaintiff, in action for slander, to be woman of good character, held properly refused." Tingle v. Worthington, 215 Ala., 700;110 So., 143.

In Astruc v. Star Co. (D.C.), 195 F., 349; affirmed by (C.C.A.), 204 F., 776, the plaintiff assigned error in the refusal of this request:

"The plaintiff is entitled to substantial damages, in view of the gravity of the libel, intending to hold him up to public ridicule and injure him in his occupation."

The Court held that there was no error in such refusal, for the reason that the amount of damages for a libel is peculiarly within the province of the jury, whose duty it is to consider all the circumstances under which the libel was published and the character and reputation of the plaintiff. The Court said:

"I prefer, however, to rest my conclusion on the broader ground that it would have been error to charge the jury that the plaintiff was entitled to substantial damages," — citing several cases and quoting the following from the case of Amory v. Vreeland, 125 App. Div., 850; 110 N Y S., 859:

"Many elements enter into an action for libel and slander, which are not present in other actions for personal wrongs. A man may be grossly libeled, and still his character and reputation may be such that he suffers no injury, or the circumstances under which the libel is published or the slander uttered [may] be such that no substantial damage ought to be given."

In that case it was held:

"While the trial Judge, in an action for libel or slander, has the right to set aside a verdict of the jury for nominal damages, where the facts disclosed are such, that in his judgment substantial damages should have been awarded, still, in the first instance, the jury should not be instructed that they cannot give such verdict as they deem proper, even if it shall be one for nominal damages only."

(4) To charge that, upon proof of the libelous characterof the publication, the plaintiff was entitled to substantialdamages, amounted to an absolute elimination of all mitigatingcircumstances connected with the transaction.

It is not deemed necessary to repeat what I have said upon this subject in my dissenting opinion; but as a parting shot I cannot refrain from saying that never have I known of a more scathing and slanderous denunciation than was the unprovoked volcanic eruption of Mr. Duncan, delivered under strained "official and personal privilege" of the Senate, and admittedly based upon "atmospheric evidence."

"The poison of asps is under their lips, whose mouth is full of cursing and bitterness."

The cruel enormity of the admittedly baseless attack should have gone far, if not to the limit, in the mitigation of substantial damages, which consideration was not allowed, by the charge complained of, to enter the minds of the jury.

(5) To charge as complained of amounted to an absoluteelimination of the defense of qualified privilege.

Nor need I amplify what I have said in reference to this matter, further than to say that Mr. Duncan's letter had been written two years before his speech in the Senate. During that time, although Mr. Robertson felt keenly the embarrassment which it placed him in, he opened not his mouth. That the publication of the letter was provoked by the speech no one can doubt. He who deliberately brings on a quarrel receives little sympathy in his complaint that his adversary went further in retaliation than a powdered courtier would have gone.

There is a vast difference between an action for libel and an action for dishonoring a check. In the latter the Court has held that the plaintiff is entitled to "substantial, but temperate," damages, and it is sought to align actions for libel with such an action. In the case of a dishonored check, the law presumes "substantial, but temperate," damages. In an action for libel, the plaintiff must prove that his reputation, etc., have been injured.

Upon the merits of the appeal my views have already been elaborated. I still think that the judgment has crystallized an act of injustice to the defendants, and for that reason that the petition for a rehearing should be granted. I am firmly convinced that to deny the request, a righteousdemand, in my opinion, under the Constitution, for the convocation of the Court en banc, would be a denial of the constitutional rights of the defendants.

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Addendum

The appellants have asked for a rehearing of this appeal, and in their petition therefor have also requested that upon such rehearing all of the Judges of the Circuit Court be called to the assistance of the Supreme Court to take part in the decision of this cause, pursuant to the provisions of Section 12 of Article 5 of the Constitution.

The appellants have also filed "Reasons and Argument in Support of Petition for Rehearing." In this "argument," the appellants take the position that, if it appears to the Justices of this Court, or any one of them, that there is involved in the appeal a question of constitutional law, "upon the determination of which the entire Court is not agreed," it is mandatory that the Chief Justice "shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court." The request of the appellants, and the question they make, are of considerable importance, and the Court deems it proper to pass directly thereon at this time.

The Court en banc — composed of the Justices of this Court and all the Circuit Judges — was created by the Constitution of 1895. We quote from Section 12 of Article 5 thereof, as originally adopted, such portions as are deemed necessary now:

"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any two of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * the Chief Justice, or in his absence the presiding Associate Justice, shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court. * * *"

By Joint Resolution of the General Assembly, at its session of 1910, the question of amending Section 12 of Article 5 was submitted to the qualified electors at the ensuing general election. By an act of that body, at its session of 1911, it was recited that the proposed amendments had been adopted by the people and the General Assembly ratified the same. In the official printed Code of 1922, the provision before quoted from the Constitution of 1895 appeared in this changed form:

"* * * Whenever, upon the hearing of any cause or question before the Supreme Court, * * * it shall appear to the Justices thereof, or any three of them, that there is involved a question of constitutional law, * * * upon the determination of which the entire Court is not agreed, * * * the Chief Justice, or in his absence the presiding Associate Justice, shall call to the assistance of the Supreme Court all of the Judges of the Circuit Court. * * *"

The appellants assert that Section 12 of Article 5 was incorrectly printed in the Code of 1922; that the word "three," as used in the provision last quoted, was improperly inserted therein; that the language"any three of them" should not so read, but should read"any of them" and that accordingly, in and by the terms of Section 12 of Article 5, when "it shall appear to the Justices" of this Court, or any of them," that a question of constitutional law is involved in a cause pending in this Court, it is required that the Court en banc shall be called.

The claim set forth rests upon the contention that the amendment of Section 12 of Article 5, voted favorably by the people in the general election of 1910, as submitted to them by the Joint Resolution of that year, was only to strike out the word "two" in the provision quoted from the original section of the Constitution, and that the purpose of the amendment as proposed by the General Assembly, voted by the people, and ratified thereafter by the General Assembly, was to require the calling of the Courten banc in a cause where a question of constitutional law was involved, at the instance of only one Justice of this Court, and not at the instance of at least three of the Justices, as it appears to be necessary from the wording of the section in the printed Code of 1922.

Pointing to both the Joint Resolution of 1910 (No. 594, Acts 1910, p. 1063), and the ratifying Act of 1911 (No. 58, Acts 1911, p. 117), the appellants particularly call our attention to this discrepancy; that in the respective parts of both of these legislative enactments, where it is declared what amendments were proposed and ratified, it was declared that the word "two," as found in the original section, was to be stricken out and the word "three" was to be inserted in lieu thereof; but that the language used in the other parts of the enactment, when it was stated how Section 12 of Article 5 should read "when amended," did not contain the word "three," but only the words "any of them" appeared. And it is urged that a proper construction of both the Joint Resolution and the ratifying Act requires that it be held that the Constitution was so amended as to require a calling of the Court en banc at the request of oneJustice, when this Court is not entirely agreed upon a constitutional question which may be involved in a cause. It is to the proper construction of the said Joint Resolution and the ratifying Act that we now direct our attention.

We agree with the following legal proposition advanced by the appellants:

"Provisions of a Constitution regulating its own amendment, otherwise than by a convention, are not merely directory, but are mandatory, and a strict observance of every substantial requirement is essential to the validity of the proposed amendment." 12 C.J., 688.

These "substantial requirements" for the amendment of our Constitution are set forth in Sections 1 and 2 of Article 16 of the Constitution. There is no showing before this Court that there was failure in any respect to comply with either of the requirements made in the sections and article last mentioned as to the amendments of Section 12 of Article 5 now under consideration. In the absence of any such showing, this Court will presume, of course, that the General Assembly, and all other officials charged with duties in connection with the submission, adoption, and ratification of the amendment, discharged such duties in the manner required by the Constitution.

The inquiry, therefore, turns to an examination of the Joint Resolution of 1910 and the ratifying Act of 1911. These enactments are so much alike, except wherein changes in language were necessary, that hereafter it will only be required to refer to the Joint Resolution. The real question is this: Which language in the Resolution must control — that contained in the part of the Resolution where it was declared what amendment was to be made, or that set out in the clause which stated how the section sought to be amended should read "when amended"?

The appellants contend for the view that the language contained in the "when amended" clause must control, and they cite in support of their position the case of Bush v.Western Union Telegraph Co., 93 S.C. 176; 76 S.E., 197, seemingly in harmony with the position taken in certain language of Mr. Justice Hydrick, who delivered the opinion of the Court in that case, which we quote:

"* * * But we think the question to be decided is: Which part of the Act shall control and be looked to to ascertain the legislative will, the part which declares what amendments were to be made, or the part which sets out the section, as it read, `when amended'? There can be no doubt of the power of the Legislature to amend an Act or section by declaring, in the amending Act, what words shall be inserted or omitted, or, it may declare, in the amending Act, that the Act to be amended shall be amended so as to read as follows, and then set out the Act as amended, or it may, as it undertook to do in this case, combine the two methods, and declare in the first part of the amending Act what amendments are intended, and also set out the Act, as it will read `when amended.' But, when there is a conflict in the provisions of the amending part of the Act and the Act `as amended,' to which must we look to find the legislative intent? This question naturally suggests another: To which part of the Act would a legislator most naturally look, in considering it on its passage, to determine its intent and effect, and whether he would favor or oppose its passage? It requires only a moment's reflection to answer: The Act as it would read `when amended.' It follows, therefore, that we can ordinarily look to that part of an amending Act with greatest certainty of finding the legislative will, and, therefore, that part of the Act should ordinarily control."

The appellants, in line with the quoted expressions from the Bush case, argue that, in the instance of the Resolution under consideration, the words "any of them," appearing in the "when amended" portion of the Resolution, are controlling over the words "any three of them" set out in the declaratory part of the enactment, since both legislators and qualified electors were more likely to have read the "when amended" clause, and voted for the proposed amendment with the idea in mind that the section would be so amended as to permit one Justice to require the calling of the Courten banc. The principles referred to by Mr. Justice Hydrick must be given due regard in construing the intention and effect of the Joint Resolution, but they are not absolutely conclusive, for as that distinguished jurist himself said if the same opinion and in the same connection:

"We do not mean, however, to say that this is always soor to lay it down as a hard and fast rule, applicable to al cases; for it is conceivable that a case might arise in whichthe evil to be remedied, or the defect in the statute to beamended, the amendment proposed, and the Act as amended,when considered altogether in the light of all the circumstancesand the rules of statutory construction, might leadto the conclusion that the legislative will is to be found inthe amending part of the Act. If so, of course, that mustcontrol, for it is the intention only which we seek." (Italics ours.)

Supporting these last-stated declarations of Mr. Justice Hydrick, to the effect that this Court should seek first of all, in construing a legislative enactment, the legislative intent and will (and, we may interpolate, the intent and will of the people as expressed at the ballot boxes), we call attention to what was said by Mr. Justice Watts, now Chief Justice, speaking for this Court, in Heintish v. Floyd, 130 S.C. 434;126 S.E., 336:

"While the Legislature, in proposing a constitutional amendment, is, in many respects, not subject to the rules controlling ordinary legislative action, still the fundamentalpurpose in construing an amendment is to ascertain and giveeffect to the intent of its framers and of the people whoadopted it; and the Court must keep in mind the objectsought to be accomplished, and the evils sought to be remedied. 12 C.J., 700." (Italics ours.)

And very much analogous to the expressions of both Justices Hydrick and Watts, is the language of Mr. Justice Marion in Kirkland v. Allendale County, 128 S.C. 541;123 S.E., 648:

"Another familiar general principle of interpretation of Constitutions is that a provision should be construed in thelight of the history of the times in which it was framed, and with due regard to the evil it was intended to remedy so as to give it effective operation and suppress the mischief at which it was aimed." (Italics ours.)

In endeavoring to ascertain the intention of the legislators who submitted the amendment to Section 12 of Article 5 to the people, and the will of the people who voted favorably to that amendment, and the intention of the General Assembly when the amendment was ratified, we accordingly look back to the situation and conditions from the time of the adoption of the Constitution in 1895 to the ratification of the amendment in 1911.

The present Constitution originally established a Supreme Court consisting of only four Justices, a Chief Justice and three Associate Justices (Section 2 of Article 5). It was provided that "the concurrence of three of the Justices shall be necessary for a reversal of the judgment below, but if the four Justices equally divide in opinion the judgment below shall be affirmed." Section 12 of Article 5. As shown before, when it appeared to the Justices, or any two of them, that the Court was not entirely agreed on a constitutional question involved in a cause then pending, the Courten banc should be called at the instance of those two Justices. The population of the State growing, and much progress in development of numerous new industries and enterprises occurring, the result was a great increase of litigation in the Courts of the State; so much so that the General Assembly had to increase the number of judicial circuits from 8 to 12 and likewise increased the number of Judges and Solicitors in the same proportion. More business for the Circuit Courts, of course, meant, naturally, there would be more business for the Supreme Court.

Again, it must have been apparent that it was rather unfortunate for the Supreme Court to be composed of an even number of Justices, and the necessary provision, under the circumstances, that when the Justices were evenly divided the judgment of the lower Court should be affirmed. The result of this last-mentioned provision was that, if two Circuit Judges disagreed upon the same legal question, which happened to be presented to them, at different times and in different causes, the judgment of the one whose decision was appealed from first reviewed by the Supreme Court, and affirmed by a divided Court, became not only the law of the particular case in which the decision was rendered, but such decision thereafter was binding authority in all similar subsequent cases. City of Florence v. Berry, 62 S.C. 469;40 S.E., 871. So, if two of the Justices of the Supreme Court and eleven of the twelve Circuit Judges were of one opinion on a legal question, and two of the Justices and one of the Circuit Judges thought otherwise, it was not only possible, but oftentimes probable, that the judgment of the three Judges should, and would, overcome the opinion of the thirteen who concluded to the contrary, unless the two Justices of this Court exercised their right to call together the Court en banc.

Whatever the reasons — because the business of the Supreme Court required it, or because it was better to have a Court composed of an uneven number of Justices, or to do away with the holding of so many Courts en banc, or for other reasons — the General Assembly and the people amended Section 2 of Article 5 of the Constitution by adding another Associate Justice to this Court. This amendment was proposed in 1910 and ratified in 1911. There is no question here as to the validity of that amendment.

In 1895, when the Constitution was adopted, the wise and foreseeing framers of that most important instrument must have realized that there would likely arise immediately upon the going into effect of the Constitution a multitude of questions as to the meaning and effect of many provisions, clauses, and words contained therein. Realizing, too, that these questions should not be determined by only a divided Supreme Court, the provision for the Court en banc, at the instance of only two of the Justices, to pass upon constitutional questions, was, doubtless, thereupon inserted in Section 12 of Article 5. Fifteen years after, however, in 1910, when numerous questions as to the meaning of the Constitution had been passed upon by the Court of last resort, it was, more than likely, the belief of both legislators and people that there would be fewer questions of constitutional law to be determined thereafter. Looking forward to a decreased number of constitutional questions, and with little chance of a divided Supreme Court, it was altogether natural for the General Assembly and the qualified electors to believe that there would be less necessity in the future than there had been in the past for the meeting of the Court en banc. It must be presumed, also, that the members of the General Assembly, and perhaps a great number of our citizens, knowing of the insistent and repeated demands for more judicial circuits and a larger number of Circuit Judges and Solicitors, had repeatedly their attention called to the statement of the then wise Chief Justice, Hon. Henry McIver, who, speaking for the entire Court, although the Justices were then evenly divided on a question before them, in 1896, had said:

"In view of the expense, delay, and interference with the ordinary duties of the Circuit Judges, which will in many, if not most, cases result from calling the Circuit Judges to the assistance of this Court, we are not disposed to exercise the power vested in this Court, except where some grave question of public concern is involved." City of Florencev. Brown, 49 S.C. 332; 26 S.E., 880; 27 S.E., 273.

The amendment to Section 2 of Article 5, increasing the number of Associate Justices from three to four, and the one making the change in Section 12 of the same article, as to the number of Justices who might call for a session of the Court en banc on a constitutional question, were both proposed at the same session of the General Assembly, voted upon by the electors in the same general election, and were ratified at the same legislative session; evidently they were companion propositions. Expecting the amendment for the additional Associate Justice to become a part of the Constitution, the plan, obviously, was also to increase at the same time the number of Justices who might require the calling in of the Circuit Judges on constitutional questions. It seems easily reasonable to suppose that, when only two Justices were required to call the Court en banc at the time when the Supreme Court was composed of only four members, and often divided in their decisions, with an increased Court of five members, with little chance at any time of even division, that the plain intention was to strike out the word "two" and insert in lieu thereof the word "three."

As a matter of grammatical construction, we think it is also apparent that if the General Assembly, in framing its Joint Resolution, had intended that one Justice, and not two or three Justices, should have the power to demand a session of the Court en banc, it would have been the most natural thing for the language used to have been expressed in the words "any one of them." This would have been a complete following of the former style of the language used in the section originally. The fact that the word "one" was not used in the section "when amended" leads us strongly to the conclusion that in the drafting of that part of the Resolution the word "three," used in the amendatory part of the Resolution, was inadvertently left out.

In speaking of the amendatory Act, then under review, in the case of Bush v. Western Union Telegraph Co., supra, where the case was decided only some three years after the passage of the Act, Mr. Justice Hydrick stated:

"We are gratified that our construction is most strongly fortified by the fact that the Act of 1909, as amended, has been re-enacted, without change, by the Legislature in the Code of Laws of 1912, which seems to be conclusive of the question."

While our construction of the Joint Resolution and the ratifying Act, under examination, has not been strengthened by any direct legislative action, or by any further vote of the electors of the State, still we feel that such construction has been "most strongly fortified" by other facts and circumstances. The amendment, in the form we think it must have been adopted, was published to the people early in 1911; it was so printed in the official Code of 1912; and, again, it was similarly printed in the official Code of 1922. The opponents of the proposition to amend at all, both in the General Assembly and among the electorate, at no time questioned the effectiveness of the necessary Acts to accomplish the purpose sought, or raised a doubt that the amendment as published in our law books was otherwise than what had been the declared intention of the people and their chosen Senators and Representatives.

The General Assembly, in 1920, looking forward to the codification of all the laws of the State in the year 1922, as required by the Constitution (Article 6, § 5), in its Act thereabout, directed the Code Commissioner and his collaborators to insert in the official Code of 1922 the Constitution of the State. A committee of the General Assembly was appointed to supervise this work and its progress. This compilation, including the Constitution, was printed and laid upon the desks of the members of the two Houses in 1921, that full and careful examination thereof could be had prior to the session of 1922, when the Code was to be adopted. Surely, if there had been the least question as to what was the intention of legislators and voters in a matter so important as the amendment to Section 12 of Article 5, and any doubt that the expressed will of the people and the General Assembly had not been correctly recorded in the official Codes of 1912 and 1922, such question and doubt would have been made known much earlier than this. The bench and bar of the State, including especially this Court, have acquiesced for more than 16 years in the provisions of the section as it was supposed to have been amended.

Accordingly this Court is gratified that under the well-considered decisions of the Court, rendered in former times and under other circumstances, it can, and does, conclude that the clearly expressed will of our people and the declared intention of two General Assemblies have been effectually carried out, and that such will and intention are correctly set forth in the official printed Code of 1922.

Referring further to the provisions of the Constitution for the Court en banc, and to the appellants' request that such Court be called, we regard this as an opportune time to announce what we conceive to be the only proper course and practice to be followed in calling a session of the Courten banc.

There is no provision, constitutional or statutory, in our law for an appeal from the Supreme Court to the Court en banc. Unless such right has been expressly given by proper authority, no litigant has the privilege of claiming it; nor can it be granted when requested. Mr. Justice Cothran, speaking for the Court en banc, has said:

"The right of appeal is not a vested one, but a matter of grace." Osteen v. A.C.L.R. R. Co., 119 S.C. 438;112 S.E., 352.

The already much-discussed Section 12 of Article 5 of the Constitution provides when and how the Court en banc shall be called. We quote from Hon. W.H. Townsend, Circuit Judge, who sat as a Judge in the Court en banc in the case of Citizens' Bank v. Heyward, 142 S.E., 651, decided on June 14, 1926, some of the interesting observations he made in his concurring opinion as to that Court:

"Like our former Courts of Error under the Acts of 1836, 7 Stats. at Large, 340, as noted by Chancellor Harper in Pell v. Ball, 1 Rich. Eq., 421, 426, and of 1859, 12 Stats. at Large, 648, the Court en banc differs materially from the Supreme Court, in that it is merely a consultative one, like the English Court of Exchequer Chamber, whose judgments were authoritative, though the suitor had no right of appeal to it. The Court en banc is called into existence by the Justices of the Supreme Court, only when they may desire to consult with the Circuit Judges as to particular causes or questions. It has no fixed terms, and loses jurisdiction when it has answered the questions submitted. InterstateCoal, etc., Co. v. Clintwood Coal, etc., Co.,105 Va., 574; 54 S.E., 593, by filing with the Clerk of the Supreme Court its written decisions, signed by a majority of the Justices and Judges. Hinson v. Pickett, 2 Hill [Eq.], 354. Its functions are then exhausted."

In the same case of Bank v. Heyward, Mr. Justice Cothran, in his dissenting opinion, made some interesting and forceful comments as to the Court en banc, and its relations to the Supreme Court, a part of which we reproduce:

"While it is quite common to refer to `the Court so constituted' as the `Court en banc,' there is, as a matter of fact, no such Court, considered as an independent tribunal, separate and distinct from the Supreme Court (a species of super-Supreme Court). It has no supervisory control, no appellate jurisdiction, over the Supreme Court; in fact, it is called together in cases only in which the Supreme Court, as ordinarily constituted, has failed to render a judgment, on account of the facts which require the calling in of the Circuit Judges, in which event the parties litigant are summoned before a Court, still the Supreme Court, but differently constituted from the ordinary elements, a Chief Justice and four Associate Justices."

As remarked before, and as indicated by both Mr. Justice Cothran and Mr. Circuit Judge Townsend, the Court en banc is not an independent Court, but, called as a consultative Court, it becomes for the time being the Supreme Court, and, in our opinion, the call for such Court should be made while the Supreme Court has pending before it, and before it has determined, the cause in which the assistance of the Circuit Judges is desired. It must be apparent that, if this Court is to have the full benefit of the assistance of the learned and honored Circuit Judges of the State, when it shall be deemed necessary, the call for their aid should be made before the cause in which their learning and wisdom is wished has been decided by this Court, so that the Circuit Judges may aid the Justices in reaching a correct conclusion. To hold the Court enbanc after the Supreme Court has rendered its decision is but to ask the Circuit Judges to review the action of this Court in the cause decided, not to assist its Justices in rendering proper judgment, as contemplated by the Constitution.

As indicated above, not only the power, but the privilege, of calling to the aid of the Court the Circuit Judges, is a matter entirely for the Court and its Justices; it is not a right given to a litigant. The Court, and the Justices thereof, will, therefore, when it is deemed advisable, without petition or suggestion from a party to a cause pending before it, call the Court en banc.

The opposing view, that the right to request a session of the Court en banc is given to a party to a cause, and the position that, when there is any kind of difference in this Court as to a matter involving a constitutional question, it is the duty of the Court to call in the Circuit Judges, so earnestly presented in the dissenting opinion, were completely answered almost a century ago by the Court of Errors, then composed of those distinguished jurists, Chancellors David Johnson, Job Johnstone, William Harper, B. F. Dunkin, and Judges John Belton O'Neall, J.J. Evans, A.P. Butler, D.L. Wardlaw, and Edward Frost, with Chancellor Harper speaking for the Court, in the case ofPell v. Ball, supra, decided in 1845. When referring to the opinion in that case, let it be recalled that the Court of Errors, created by the Act of the General Assembly in 1836, composed of the chancellors in equity and all the law Judges, was the pattern after which was framed our present Court en banc. The requirements for the calling of the Court of Errors were remarkably similar to those stated in our Constitution to be necessary for a convocation of the Supreme Court Justices and the Circuit Judges. Since what Chancellor Harper wrote, so learnedly and forcibly, refutes the arguments advanced against the conclusion we have announced, we quote much at length from his interesting opinion, emphasizing some expressions which are peculiarly appropriate to present conditions and significantly in point upon the question presented. Said the Chancellor:

"I admit that, when an appeal is given, it is generally understood as of course to imply that it shall be at the option of the party against whom judgment is pronounced. But it is absolutely impossible to give this meaning to the word, in two of the instances in which it is used in the clause in question. * * * And I am satisfied that the powergiven to two Judges of demanding a Court of Errors canonly be exercised before judgment rendered.

"If the right of appeal were the right of the suitor, hecould only exercise it after judgment against him; but the appeal Courts have familiarly, and without doubt or question, ordered cases to the Court of Errors, if upon the opening of them any constitutional question appeared to be involved. * * *

"The right of two Judges to demand a Court of Errors indicates the Court to be merely a consultative one, like the English Court of Exchequer Chamber, which any of the Superior Courts may assemble, and whose judgments areauthoritative, though the suitor has no right of appeal to it. Then, what was the evil in the case of constitutional questions?Certainly, it was not that the suitor had not a doubleappeal, or it would have been allowed in all cases, whetherconstitutional questions were involved or not. The suitoris as much aggrieved by an erroneous decision, deprivinghim of property or any other right, if the question be oneof law merely, as if it were of law affected by the Constitution.Constitutional questions were regarded by the Legislatureas of great importance, and the decision of them asaffecting not only the party, but the public.

"It concerns the public that the Constitution should be maintained inviolate; and the Legislature has, therefore, made it the duty of the Court to submit all such questions to all the Judges of the State. It is said that the Courts whose errors are intended to be corrected are thus made the Judges in the last resort of the propriety of their own decisions. But every Court in the last resort must, of necessity, be the judges of the correctness of their own decisions, as of their own jurisdiction. * * *

"There is no time fixed by law for the meeting of the Court of Errors; but this depends entirely on the action of the two Courts. Yet, if the suitor may appeal at his option,he must of necessity have the right of requiring the Courtto assemble to hear his appeal. * * *

"It is argued that to decide that no constitutional question is involved is to decide the constitutional question. * * * To decide in favor of the validity of a law which is charged to be contrary to the Constitution, is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question. * * *

"It certainly enters into our consideration that the constructioncontended for would render the administration ofjustice, under our present system, utterly impracticable. It is already very onerous. * * * But if it were left to the option of the parties, in every case, to have an ulterior appeal, it is plain that it would be impossible to get on. On the construction contended for, this would be, in effect, the result. There is hardly a case in which some pretext ofraising a constitutional question might not be found. * * * This would be often resorted to for purposes of delay, and when the docket of the Court shall have accumulated, the delay would be interminable. Is it not safer to leave it to the Court, whose duty it will be to send the cause to the whole of the Judges, not only in cases in which a constitutional question is clearly involved, but in those in which a question can fairly be made?

"There must be a discretion which is not precisely defined. If there is any danger of abuse in this, it is that the discretion will be too liberally exercised; and there is nohardship on the suitor, who has already exercised all theright of appeal which the Constitution intended him to have."

Even though it be sought to make it otherwise appear, we are confident our holdings are not in conflict with anything appearing in or about the case of State v. Holleyman, 55 S.C. 207;31 S.E., 362; 33 S.E., 366; 45 L.R.A., 567, or the case of Traynham v. C. W.C. Railway Co., 92 S.C. 43;75 S.E., 381, referred to somewhat at length in the dissenting opinion. In both these cases the Supreme Court was divided on a question as to whether or not a statute of this State was in conflict with the Constitution of the United States. The session of the Court en banc in each of the cases was ordered at the instance of the entire Court, and not because it was desired by just one member of the Court. It nowhere appears in the decision of either of the case that it was the opinion of the Justices of the Supreme Court, or the opinion of the Justices and the Circuit Judges sitting en banc, that a party to a cause at any time had the right to demand, as a matter of law, that the Court en banc should be called to hear his appeal.

The situations that occurred in the Holleyman and Traynhamcases are the very kind of situations that ought to be avoided, if possible, and it is the purpose now of this Court to prevent, as far as possible, their recurrence. In the first hearing of the appeal in the Holleyman case, the judgment of the Circuit Court was affirmed. When the case was heard by the Court en banc, the judgment of the Circuit Court was reversed, and, as seen, the Supreme Court, composed of its Justices alone, was reversed in the same case on the same legal question by the Supreme Court, composed of its Justices and the Circuit Judges, called the Court en banc. The identical thing occurred in the Traynham case. Who will dare say otherwise than that it would have been better for the Justices of the Supreme Court, when it developed that there was a situation requiring that the Circuit Judges be called to the assistance of the Supreme Court, for the Supreme Court, or a majority of its Justices, before announcing the decisions of the Court, to have first called the Court en banc? Had that course been pursued, then the Supreme Court would have rendered but one decision, and the Court would not have been placed in the unfortunate position of having it appear that it had reversed itself.

We deem it entirely unnecessary to attempt to review the many decisions from jurisdictions other than our own to which attention has been called in the dissenting opinion. The provisions of the Constitution of South Carolina as to the Court en banc are peculiarly singular in this State. We do not know of another State in the American Union which provided for a Court of that kind in its system of jurisprudence. It must be manifest that a decision of any foreign jurisdiction could have no bearing whatever upon any question now before this Court in this case. The very fact that it is necessary to look to the decision of Courts outside of South Carolina for arguments to use that this Court is wrong in the views it holds is but a concession that the decisions in South Carolina sustain the opinions of the majority of the Court.

The dissenting opinion observes, with some interest, that the present Chief Justice sat as member of the Court enbanc in both the Holleyman and Traynham cases, and joined in the action of that Court, which resulted in the reversal of the judgments of the Circuit Court, and thereby also reversed the former decisions of the Supreme Court. The implication, we assume, is that the present Chief Justice is not now in harmony with some positions he has formerly taken. The facts do not warrant even a suggestion of inconsistency on the part of the present Chief Justice, for there is no change in his position in any way. The question as to the proper procedure for calling the Courten banc was not in the slightest way adverted to in either the Holleyman or Traynham cases. Whatever the petitions for rehearing may have contained, the fact remains that the Justices of the Supreme Court were divided in their opinion in both cases, and the Court en banc was convened in both cases by the Supreme Court. The experience attained from the results of those two cases has caused the present Chief Justice, and the members of the Court who now agree with his view, to more strongly feel the propriety of marking out for the efficient administration of justice the procedure which, it is thought, should be followed in the convocation of the Court en banc.

As will be clearly seen by reference to Article 5, Section 12, of the Constitution, already quoted, the Circuit Judges are to be called in only when three of the Justices shall have decided that "there is involved a question of constitutionallaw," upon the determination of which the entire Court is not agreed, and the decision as to whether or not the Circuit Judges shall be called in involves the exercise of their discretion. "Constitutional law" is defined in Mr. Black's Law Dictionary as follows:

"That department of the science of law which treats of Constitutions, their establishment, construction, and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law."

That definition, in somewhat varying language, but practically with the identical meaning, is approved by many well-recognized authorities.

We do not think the alleged error on the part of the Circuit Judge, that he charged on the facts in violation of Section 26 of Article 5, raised a question of constitutional law. There is not involved here the construction or interpretation of the provisions of that section, which are: "Judges shall not charge juries in respect to matters of fact, but shall declare the law." All the appellants have done was to allege that, as a matter of fact, not as a matter of constitutional law, the Circuit Judge violated the quoted provision. The question, therefore, before this Court, has been not as to the intention or effect of the constitutional provision, but if the language used by the Circuit Judge in his charge to the jury was within the constitutional inhibition. An apt analogous illustration is this: One convicted in the Court of General Sessions of crime alleges, on appeal to this Court, that he was tried, over his protest, by a jury of 11 men, in violation of the constitutional provision giving him the right to trial by a jury of twelve. The State contends that the jury consisted of twelve. The question then before this Court would not be a construction or interpretation of the constitutional provision referred to, for it would be conceded by all interested that the accused was entitled to trial by a jury of twelve. The only question before the Court would be one of fact as to the number of jurors who sat in the trial.

So here it is conceded by all the parties to this cause, and by all the members of the Court, that the Circuit Judge should not have charged on the facts of the case. All this Court has had to do was to read the testimony, from which the facts of the case were derived, and then to read the charge of the Circuit Judge, and see if in any respect the Circuit Judge contravened the constitutional provision. In the opinion of Mr. Justice Marion, which was adopted as the opinion of the Court, the position was taken that, under the decisions of this Court, the Circuit Judge did not charge on the facts of the case at bar. The dissenting opinion filed in the case did not discuss this question. The usual rule is that, when a dissenting opinion does not controvert any position taken in the majority opinion, it is assumed that the dissenting opinion acquiesces in the conclusions of the majority as to positions not controverted. Chancellor Harper stated:

"To decide in favor of the validity of a law which is charged to be contrary to the Constitution is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question."

To decide that the charge of the trial Judge does not violate the constitutional inhibition against charging on the facts is certainly to decide that there is no constitutional question involved in the case; for, as said by the Chancellor, "the Constitution does not touch the question." Now, perhaps even more so than in 1845, "there is hardly a case in which some pretext of raising a constitutional question might not be found." The good old standby intended for honest use, and so frequently abused, that no person shall be deprived of property without due process of law, is always eagerly anxious to be the "unbidden and perhaps unwelcome guest * * * at the door."

And of late keeping close company with that "constitutional question" is the other, that imputes error because the trial Judge charged on the facts. In almost every case decided by a jury, now brought to this Court, complaint is made, and generally without foundation therefore, that the Circuit Judge has violated the provisions of Article 5, Section 26, by charging on the facts. If this Court should accept this "pretext" of raising a constitutional question, and on account thereof call in the fourteen Circuit Judges of this State every time there is a disagreement as to an exception raising a "constitutional question" as to charge on the facts, and every time a defeated litigant made demand therefore, because the Constitution, in his opinion, had been violated, we would bring about a situation even more unfortunate than the one suggested by the great McIver. The Circuit Judges would be engaged practically all of their time in attendance upon the Court en banc, therewith the incidents of "expense, delay, and interference with the ordinary duties of the Circuit Judges." This would necessitate the probable continuous appointment of fourteen or more Special Judges to conduct the business of the Circuit Courts.

This Court is of the opinion that we can safely follow the precedent laid down by this Court, composed of Justices McIver, Pope, Gary, and Jones, all of whom served the State ably in the high office of Chief Justice, when they declared in Florence v. Brown, supra: "We are not disposed to exercise the power vested in this Court, except where some grave question of public concernis involved." The question whether or not a Circuit Judge in some particular case charged on the facts of that case is certainly not a grave question of public concern. Mr. Justice Cothran has said:

"It is a proverb as old as the law that it is to the interest of the State that there be an end of litigation." SumterTrust Co. v. Holman, 134 S.C. 412; 132 S.E., 811.

This case, as already stated, has been heard by this Court twice, and the conclusions reached have been against the appellants in both instances.

It is not our purpose to go again into the facts of the case. We have only legal questions before us.

We have no desire to fire "a parting shot" at either of the parties to this cause. The one fired in the dissenting opinion, like most "parting shots," was too late to be effective. It is an argument that the verdict of the jury was wrong. So far as that verdict is concerned, this Court is concerned only with the question if the trial Judge, in the trial of the cause, committed any error of law. We are only judges of the law. We are not advocates of either of the parties to the cause. The arraignment of the respondent in the dissenting opinion in all likelihood would have been interesting to the trial jury, if used by counsel for the appellants in the addresses to that tribunal. We are not called upon here to defend him from that arraignment. It is sufficient to say that the jury has vindicated him. We shall not undertake to criticize the verdict of a jury, who, it must be assumed, did their duty as they conceived it to be, and who have not the privilege or opportunity of making any reply to any criticism we might offer as to their conduct.

In their petition now before this Court the appellants ask, in any event, if the judgment below be affirmed, that the same be made effective within 60 days from the last day of the term of this Court (November — , 1925), when the appeal was first heard, and that the plaintiff be required to cancel and remit interest on his judgment accruing since said time. The reasons for this request, briefly stated, are that Section 17 of Article 5 of the Constitution provides that "it shall be the duty of the Justices of the Supreme Court to file their decisions within sixty days from the last day of the Court at which the cases were heard," and that the delay in rendering the judgment herein has not been caused by the laches of the appellants. To sustain this request there is cited the case of Griffith v. Cromley,58 S.C. 448; 36 S.E., 738.

The facts relating to the hearing and determination of this appeal are these: It was heard first on November 10, 1925; the Court was then composed of Chief Justice Gary, Associate Justices Watts, Cothran, and Marion, and Acting Associate Justice R.O. Purdy. Chief Justice Gary, because of illness, did not participate in the case. Mr. Justice Marion resigned, effective January 1, 1926, but he was appointed by the Governor to serve as an Acting Associate Justice in all causes formerly heard by him. In May, 1927, the four Justices who sat in the cause, being evenly divided in their opinions as to affirmance or reversal, on account of the great importance of the cause, deemed it best that there be a rehearing before a full Court, and so directed. In the meantime, Chief Justice Gary had died; Mr. Associate Justice Watts became Chief Justice, and Justice Blease, Stabler, and Carter became members of the Court. The rehearing was had on June — , 1927, without objection or question of any kind by appellants or respondent. The decision of the Court affirming the judgment below was handed down on September 21, 1927, and within ten days thereafter the appellants filed their petition for another rehearing.

It is well known to the bar of the State that the work of this Court for several years past has been exceedingly heavy, and, unfortunately, it has been interfered with to a great extent by both the illness and deaths of several members of the Court. This case has been here a long time, due much to the facts related above, but even more so because this Court has agreed at all times with one thing so frequently and insistently urged by the appellants, that the issues involved were of great importance, and that the financial interests of appellants at stake were large.

It has required much time for the Court as a whole, and for several Justices and Acting Associate Justices, to properly consider the cause. This will be quite apparent to the appellants, as well as all others concerned, when they are reminded that the transcript of record contains 236 pages; that each of the appellants made 19 exceptions, all important; that the printed arguments for the appellants contain 83 pages, and the argument of the respondent has 77 pages; that the total number of authorities cited by both sides, including textbooks, aggregate at least 150; and, most important of all, that the Court was divided in two instances as to the determination it should make. These facts have been related that the seeming delay of the Court may be understood.

Even in the circumstances, however, as a matter of law, we do not see how this Court, though it felt disposed to do so, could grant the request of the appellants. We do not think the Griffith case, supra, warrants our doing so. In that case, which was an action in equity, it was contended that the decree of a Judge of the Court of Common Pleas was void, because it was not filed within 60 days after final adjournment of the Court at which the cause was heard, but this Court held otherwise. It was decided, in effect, that the Court would not, where it could prevent, permit a party to a cause to suffer by delay, not occasioned by his fault, but due to the Court itself.

In an equitable action, this Court has very great latitude in rendering its judgments, and might, in proper cases, order a remission of interest. In an action at law, however, and such is the case at bar, this Court is "a Court for the correction of errors at law under such regulations as the General Assembly may be law prescribe." Section 4, Article 5, Constitution. We are not advised of any statutory enactment which permits the Court to order a remission of interest on a judgment, based upon the verdict of a jury. To the contrary, the General Assembly has expressly declared that all money judgments shall draw interest at the legal rate. Section 3636, Vol. 3, Code 1922. It follows, therefore, that the Court cannot relieve the appellants, even if it were thought proper to do so.

As to the other matters mentioned in the petition for rehearing, the Court has again, at appellants' instance, reviewed the trial below, and we are satisfied with the opinion of the Court, as written by former Associate Justice Marion, which covered all the exceptions of the appellants, and we find no error of law therein. In connection with the opinion of the Court, however, we direct that the charge of the trial Judge and his order refusing a new trial be reported.

It is hereby ordered that the petition for rehearing be denied, and that the order staying the remittitur be revoked.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.

MR. JUSTICE CARTER concurs in result.

Case Details

Case Name: Duncan v. the Record Publishing Co.

Court Name: Supreme Court of South Carolina

Date Published: Sep 21, 1927

Citation: 143 S.E. 31

Docket Number: 12275

Court Abbreviation: S.C.