*1 Argued reargued September 6, March affirmed October
HOLDEN v. PIONEER BROADCASTING
COMPANY et al 2d
365 P. *2 argued Philip for the cause Levin, A. Portland, him, appellant. & Kitson, were Rader With on brief and Peterson Portland. Lent,& Portland, argued for the cause Clarice, Portland, James H. respondents. Koerner, him on the brief were With Wayne Young, and Hilliard, Dezendorf MeColloch & Portland. presiding, and Warner, J.,
Before Rossman, Perry, and Justices. Lusk, Goodwin O’Connell, Sloan, O’CONNELL, J. alleged damages recover an action to
This is during by a tele- made defendants libelous statement company is the owner The defendant vision broadcast. are defendants the individual station; television respectively. announcer and director the news alleges “[t]hat the 30th on or about complaint The over broadcast day January, news on certain them, and each of Defendants, station, said television photograph publish a certain and broadcast did accompanied by operated and Plaintiff restaurant said Jury published the Grand and uttered words * * * * '* County Multnomah “deplorable situation” report to a jury referred grand reported, were was runaway girls involving who, being given-aid operators and assistance. plaintiff’s girls- restaurant and “these soon:find engaged prostitution and themselves similar vices.” complaint alleges further these utterances they were false and libelous and that were made.“will- maliciously fully, wrongfully.” Special, general and damages alleged complaint. punitive were allegations general Defendants moved to strike damages complaint punitive ground on the that the allege that defendants intended to defame did publish plaintiff, a- re- or that defendants refused plead- quested a non-intentional retraction of libel, precedent ing proof are of which conditions recovery damages under such ORS 30.155to 30.175. granted plain- defendants’ motion and, The trial court judgment failing plead was entered for further, tiff plaintiff appeals. defendants, appeal material to this are as The statutes *3 follows: Damages recoverable for defama- 30.155 “ORS pictures, by motion news- radio, television, tion periodical. Except provided printed paper in as or damages for on account of in an action 30.160, ORS defamatory published a or broadcast in statement magazine, printed periodical, newspaper, or other plaintiff pictures, by may or motion television radio, special damages general recover prove by competent have he can evidence, which, proximate result a direct and of.the as suffered defamatory statement.” publication of the damages general allowed. When 30.160 “ORS damages account of de- (1) on an action In in a
famatory published or broadcast statement periodical, printed magazine, or newspaper, other plaintiff pictures, or motion television recover radio, damages general unless: shall not “(a) but is demanded retraction or A correction provided or 30.165; in published ORS plaintiff proves preponderance “(b) The actually of the evidence that the defendant intended plaintiff. to defame the
“(2) plaintiff is entitled to recover Where the general damages, retraction ages.” publication a correction or
may mitigation of dam- be considered or re- 30.165 Publication correction “ORS (1) The demand for cor- traction demand. writing, signed by or retraction shall be rection the defamed attorney person and be de- or his defamatory publisher state- of the livered to the ment, publisher’s place by registered personally mail at the or either or residence within of business person days receives actual the defamed after defamatory knowledge The de- statement. of the specify are false and which statements shall mand they defamatory request corrected or may also refer to the demand The retracted. sources may be ascer- the true facts from which accuracy. tained with “ defamatory (2) publisher statement The receipt after two weeks more than have not shall or retraction in which correction the demand mailing investigate after such demand; and, publish or investigation, the correction he shall in: retraction published, “(a) issue thereafter first The printed magazines newspapers, or other
case
periodicals.
“ (b)
or telecast thereafter
first broadcast
The
television stations.
radio or
case of
in the
made,
public
“(c)
exhibition thereafter
first
picture theatres.
of motion
in the case
made,
shall consist
“(3)
retraction
correction
substantially
publisher
to the
a statement
previously
defamatory statements
that the
effect
*4
pub-
factually supported
that the
and
are not
made
publication
original
thereof.
regrets the
lisher
pub-
shall be
“(4)
retraction
or
correction
409
substantially
conspicuous
lished in
a manner as
defamatory
statement.”
We
requiring plain-
construe ORS 30.155-30.175as
plead
prove,
precedent
tiff to
and
aas
condition
to
recovery, defendants’ intent to defame or, in the ab-
upon
sence
such
of
to
intent,
failure
retract
demand.
Kelly,
App
(1940);
Hall v.
61 Ga
694,
pletely injury person, property, reputa- done him in his or course of law tion.” privileges No immunities citizens. Equality “Section 20. granting privileges, passed citizen class of citizens law shall belong terms, shall immunities, which, equally the same or all citizens.” *5 410 constitutionality
The of statutes aof similar nature passed upon majority has been in other states. In a question the cases in which the has been the raised courts have or in held, stated the denial of dicta, that remedy general damages the for defamation is un- contrary taken Allen v. constitutional. view is in (1889) Minn 41 Co., Pioneer Press 40 NW 936 and 117, Werner v. Associated News- Southern California papers, 216 P2d ALR2d 277 121, 825, 35 Cal2d 13 (1950), appeal 340 dismissed, 71 S Ct US (1951). L The cases are in 13 95 Ed 657 collected ALR2d 277. vary retraction statutes in the several states they person’s extent to which remove the defamed the edy, › upon but the constitutional attack these rem essentially urged the same as that has
statutes been ‘being by plaintiff contended that bar, in the case at way damages remedy by general aof the denial protection equal process repugnant and due repugnant amendment and of the fourteenth clauses declaring that of the state constitutions sections expression abusing right persons of freedom Oregon § (e.g., responsible Constitu Art. I, 8, shall be guaranteeing repugnant tion) to the sections Oregon § (e.g., remedy I, 10, Art. Con defamation for stitution) . point is based attack central
Plaintiff’s Oregon § Constitution, guarantee in Art. I, of law due course “every have man shall reputa- property person, injury him in his done is not a substitute retraction It is contended tion.” damages therefore, general that, remedy of for the the other consti- This and violated. constitution Legal › Law of See a Remedies Defamation, summary Defamation, 69 Harv various statutes L Ark Rev L Rev (1956). Note, Developments (1952). See also, Leflar, In objections by plaintiff tutional carefully raised are analyzed opinions; in two excellent one Mr. Justice Traynor in Werner v. Southern Associated California Newspapers, supra, and the other Mr. Justice supra. Mitchell in Allen Although v. Pioneer Co., Press provisions statutes constitutional dealt with in precisely Werner and Allen cases are not the same problems presented the 'basic ours, constitutional same. fi We agree are the analysis with the courts’ *6 adopt these dispositive cases and it as of the at case bar. necessary repeat
It is not to what was there ex pressed. In the Werner case the court held that the (Civil enactment of the California retraction statute § 48a) legislative Code was the result of a determi nation and choice based the resolution of con policy siderations of certain matters which were province legislature. statutory within the of the The scheme enacted in ORS 30.160-30.170 is the result of legis similar considerations. it is clear Unless that the lature exceeded the constitutional bounds within which power policy making it has the to exercise its functions we must hold this choice to be valid. legislature
Were we to hold that cannot consti-
tutionally modify
person
a
the remedies available to
who contends that he has been defamed we
in
would,
freeze the law of defamation in the form
effect,
in
at the time
existed
our constitution was
publisher
the defamation was malicious or reckless.
a retraction
publisher
decide whether we would
retraction
ing good
Co., 190 Minn
allowing
fi
California
faith or
to be
statute
to
Minnesota
retraction
statute
prove
free from
freedom from
does not
statute
unconstitutional.
good
statute
to limit
NW
in
uphold
negligence.
faith.
place upon
question
dealt with in the Allen ease
negligence
recovery
adopted. logically, holding congeal And, such a would arising the remedies for all whether out actions, law of defamation or other area of law. The legislature preclude effect would be to modifying principle the fault in tort at least to law, plain- the extent that it would affect the powerless tiff. would be Thus, effect change in the law were it to decide the interests principle of of the state would be better served if the liability theory liability par- aas in a absolute tort (or type cases) case in all ticular should be particular to decide that in a or if it were abolished, liability should be limited to cases which situation in other harm; words, intended cause defendant negligent liability conduct or ultrahazardous abrogated. will In this connection it be noted would simply changes 30.160-30.170, effect, that ORS to a certain class as it relates defamation, law of liability liability by eliminating persons, absolute publishing preparing negligence a defama- for tory retract). (unless refuses defendant statement Liability conduct of intentional to cases is restricted plaintiff. *7 defame intends to where the defendant modify legislature the fault repeat, cannot if the We modify it in cases it cannot principle in defamation require liability. a con- such To tort areas of other upon impose our law which a stricture would clusion adoption contemplated of been not have could constitution. our legis recognized that the past has court
In the
remedy previously available to
may limit the
lature
that the
held
have
We
injured
a tort-feasor.
one
remedy
negligent
away
take
can
guest
brought
an automobile
injury
actions
40
330,
149
Ganiere,
v.
Or
Perozzi
host.
against his
413
(1935).
P2d 1009
The same result obtains under
federal
280
50
Silver,
constitution,
Silver
US
(1929).
L
ALR
S
74 Ed
939
Ct
In the latter
the court said
“the Constitu
case
rights,
tion
not f
of new
or the
does
orbid
creation
recognized by
law,
of old ones
the common
abolition
permissible legislative object.” (280
a
attain
US
Oregon
122).
§10
Article
of
was
I,
Constitution
City
similarly
Portland,
in Noonan v.
construed
of
(1939). In that case the court
court,
Oregon
§ 10,
“Article
was not
I,
Constitution,
anyone
right
give
vested
in the law
intended
statutory
nor was
intended to
common;
or
either
Notwithstanding similar con-
the law
render
static.
provisions in
states,
other
the courts
stitutional
which eliminated the hus-
statutes
have sustained
liability for the
of his
law
torts
common
band’s
placed the wife
an economic
wife and
They have likewise sus-
her husband.
with
level
have abolished actions for
statutes which
tained
prom-
actions for breach of
affections,
alienation
Or
etc.”
ise,
Smith,
See (1955). argues guest plaintiff other statutes and wholly abrogating restricting remedies in
statutes (alienation types seduc- affection, certain cases marry) deal with the of contract breach tion, persons have 'the attributes a volun- who remedies *8 distinguished teer such and, statutes can be therefore, legislation such as 30.160-30.170 ORS where person suing expose has not chosen to himself to the upon harm visited him. The distinction is not sub stantial in this context. We cannot believe that provisions upon constitutional relied were intended to preclude legislative change tort remedies unless the injured person was in some sense a If “volunteer.” suggested there is substance in the there distinction, legislature is no reason to conclude that did not considering advisability weigh enacting it when ORS 30.160-30.170. legislature person’s remedy a
If the can limit in which there has been an intentional defama- cases it then of which we believe that course it can can, tion, step and a take a less absolve defendant from drastic liability general damages resulting from the non- publication preparation and intentional harmful publish condition that he a re- statements, quested retraction.
Assuming that does not have the person existing remedy, deprive of an power by plaintiff that the form of the conceded be would changed remedy if the substitute was a sub could plain equivalent of that which was taken. But stantial by way argues retraction is tiff money damages. equivalent The con the substantial taken others. In Allen trary has been view (1889), Minn Co., 117, 41 NW936, Press Pioneer said: court “* * * as far as vindication of character Now, it stands to reputation concerned, reason that charge, retraction of false frank full widely substantially published as especially if usually libel, as was readers the same *9 judgment complete a for than fact more damages. good redress a perfect there has been where Indeed, improper mo- an of entire absence faith, special publication a and no libel, the in tives, or injury pecuniary an action for resulted, has damages, brought re- a and frank after such full majority apology, a of cases is in traction speculative.” purely preserving argued constitution, that our It is through the assures law,” “due remedies course remedy by injured person action if he should a court pursue the constitution that, therefore, it and to elect remedy way by of retraction even the invalid renders remedy though that such a is more be conceded it damages judgment assuaging for a than effective by puts plaintiff. This suffered a the harm interpretation § stringent Conceding, on Art. I, purpose answering point, that is retraction remedy by “due the fact remains law,” not a course remedy by plaintiff injured “due that the does have if he is inten- course of law” under 30.155-80.160 ORS liability tionally it be said can defamed. Unless resulting negligent injury reputation to con- wholly pre- fault must conduct be duct or from without there is need to in- under our no constitution, served remedy; adequate quire whether retraction there remedy by of law due course available would be intentionally right are defamed, those who remedy simply an additional retraction would be provide could or withhold as deems right even if the to retraction was the wise. But sole remedy remedy person to a defamed, available course of law. term “due would he due course given meaning, requiring a limited of law” need not judicial procedure form of some test effective- mess of rehabilitating plaintiff’s retraction in reputation particular in a case.
Implicit argument in the that court surveillance must be damages available to assumption assess is the remedy by way that, whereas the may of retraction prove inadequate particular remedy in a case, money damages the form of adjusted by can be judicial equate recovery tribunal the dollar to the person harm suffered defamed. The harm to a plaintiff likely irreparable way to be either money recovery through pure retraction. It is a say speculation rep- the one is more already arable than the other. As indicated, there is *10 respectable view that retraction is a more effective remedy judgment money than a damages. for The legislature may have arrived at same conclusion in substituting general damages. retraction for legislature may also have considered that in each case plaintiff the benefit to the from a retraction would be equated closely money damages to the harm as fixed a court. It be said cannot that the had concluding for no foundation that retraction was an general adequate damages. substitute policy are also other There considerations involved In Werner in choice. Southern Asso- California supra, Newspapers, 35 Cal2d at ciated court said: Legis- are at least two bases “There on which reasonably conclude that
lature could the retraction provide provisions of section 48a a reasonable sub- general damages in. actions for stitute defama- newspapers against namely, and radio stations, tion danger general of excessive recoveries of dam- public ages and the libel actions interest in the of news. dissemination free damages are allowed for repu- ‘loss of
“General feelings,’ mortification and hurt tation, shame, (Civ. §48a), injuries but the extent of such Code, is difficult conclusively presumed to determine. At common law it was general damages re publication practical sulted from result a libel. ‘The may only jury that the award not nominal damages, the compensation but substantial sums in
supposed plaintiff’s reputation, harm to the any proof without it has occurred.’ fact (Prosser, p. 797.) Legislature § Torts, reasonably recovery could conclude that of dam ages proof injury without constitutes an evil.” through We hold that ORS 30.150 does not 30.175 con deprivation stitute an unconstitutional for defamation. argument
Plaintiff’s the retraction statute creates unlawful classification in violation of the equal protection Oregon clauses of the federal and the adequately constitutions is answered in the Werner case.
Plaintiff next contends that the trial court erred granting plain defendants’ motion to strike from complaint allegations relating punitive tiff’s damages. argue
Defendants’ that the trial court’s order can grounds: (1) be sustained on either one of two that the Oregon (ORS 30.175) retraction statutes 30.150 to punitive damages, contain no mention of it is which, *11 argued, legislative design reflects the to eliminate the punitive damages doctrine of from this class of cases; (2) conceding that the statutes that, do not bar the recovery punitive damages, proper of in the case, complaint in the instant ease did not contain sufficient recovery punitive allegations damages. to sustain a of opinion are of the We defendants’ second necessary, ground taken. is not is well therefore, 418
decide1 whether the re permit our'retraction statutes covery of The in the punitive allegations damages. do not defendants with complaint charge purport recitation that the intent defame The plaintiff. “utterances and were made defendants publication to be willfully, maliciously wrongfully” as an that defendants knew allegation construed or that defendants were moti were false charges defamatory ill making alleged vated will that the made The statement allegation was statement. a is mere con maliciously wrongfully” “willfully, The is not sufficient allegation of the pleader. clusion in fact. fl malice to charge in the dissent requires relied
One point
comment;
of
argues,
deprivation
dissent
from
objectionable
case is as
in the
remedy
present
legislation purporting
a
standpoint
constitutional
acre as “just compensation”
per
fix
certain price
is not
The analogy
apposite.
cases.
eminent domain
constitutional power
beyond
it would be
Certainly
in dollars for
recovery
a single
to fix
the legislature
value
irrespective
condemned
of land
all parcels
from the
resulting
the damage
But
each
parcel.
admittedly money
damage
property
taking
in each case
be measured
must
recovery
Obviously the
The harm for
of dollars.
number
ato certain
according
remedy
to be the
purports
damages”
“general
which
By defini
a different
sort.
is of
cases
in defamation
dam
as distinct
“special
damages”
tion “general
measurable
by proof
are not
are those
ages”
dam
general
loss'.
pecuniary
specific
harm
plaintiff
to compensate
purports
ages
Underwriters’
Mitchell,
fl Glenn
(1924).
P2d
7 Cal2d
v.
Report,
Gibson,
(1933).
Inc.,
Cf.,
[75]
61 P2d
Cal
Butler 21 Cal
App2d
App2d
(1936); Taylor
Freyman,
649, 171
591,
The holds that ORS Oregon § Article Constitution. I, 10, with consistent agree. 1 cannot persuasions all commentators of
Constitutional having grant such sections that written constitutions rights place the individual be- are intended to majorities. yond parliamentary temporary invasion (8th 1927) Cooley, 2 Limitations ed, Constitutional v. Dorman Mixon, 424; 38 Miss 733-738; Griffin 30 Porter, The Ala Hotchkiss v. Conn State, 216; 34 40 Co., 731, Park v. Free Press 72 Mich NW 414; 560, 1 LRA 599. supremacy as and not constitution, law, forcefully
merely good underscored has been advice, in our own cases: “* * * security right personal Magna and Charta, transmitted to us
has been
incorporated
law of this state,
fundamental
into the
society
preser-
every
guarantees
member
good
and for
detraction,
name from
vation of his
provides
right
any infringement
law
of this
* * *
remedy
[citing Oregon
adequate
stitution,
Con-
§ 10].”
29
Bowen,
Thomas v.
Or
Art
I,
421 “* * * of Mattson v. since the cases [E]ver ** * v. Oregon Astoria [supra] Batdorff Ann. City, 937, 287, 402 Pac. 188 Cas. (100 53 Or. law it has been settled N.C.C.A, 142, note), 8 the common-law remedy negli state that could not taken away inflicted injuries gently some other efficient remedy without providing * * West v. Jaloff, its 113 Or 184, 195, place ALR P 36 642, in Eastman v. County Judge Deady inquired As Clackamas, 32 F 24 (D Or, 1887), by this quoted in Theiler v. Tillamook County, court 75 Or al, and in Stewart v. Houk et P P 127 Or P 61 ALR 1236: “* * * Can some legislature, spasm novel take away every man’s opinion, slander, recovery assault and of a battery, debt? if it cannot do and, so such can it in cases, why F this?” 32 at 32. 24, supra *14 retraction Oregon statute abolishes general in cases of
damages except malice or failure proven to retract after request. The statute leaves the de- famed no other than retraction a negligent destruction of reputation. scheme challenged requires to notice within 20
plaintiff give days of knowledge of his with grievance. Thereafter, option defendant either retract or be sued. The plaintiff a in due of law” in “remedy has course the sense that the law a gives plaintiff day but if court, only the defendant refuses retract. to the enactment of the
Prior challenged statute, of this court recognized the decisions the general rule is libelous per se, where that, publication general as a will be presumed consequence damages publi- al., v. et Johnson 205 Grubb cation. Or 289 P2d 624, 422 al., Marr et al. v. Putnam et
1067;
196 Or
246 P2d
1,
Bay
Peck v.
122
509;
al.,
Coos
Times Pub. Co. et
Or
Phelps,
P
v.
Barnett
97 Or
191 P
408,
307;
242,
ALR
33 Am
Libel and
502,
663;
Jur,
Slander 222,
§
§
263, 282;
53 CJS
362,
Slander,
Libel
damages,
Special
depend
§ 239.
where recoverable,
upon pleadings
proof.
DeLashmitt v. Journal
Pub.
Co., 166 Or
P2d
“* * * [T]he Constitution does not forbid rights, the creation of new or the abolition of old recognized by ones the common law, to attain a # * permissible legislative object only depart I would not from this rule. It truism changing to add that in remedies the must way as to leave do so such intact the substantial rights guaranteed the constitution. injury
Remedy reputation, protected by Ar remedy, § must be a real and substantial ticle I, merely supra, a colorable Mattson v. one, Astoria, rights supra, guaranteed so that the Jaloff, West merely promises. the constitution are not false A *15 remedy one in which the substantial as best law, quo compensates restores the status or can, it either injured party In the for the loss. some situations equitáble damages In there áre remedies. others are
423 imposes for consequences law pecuniary which right. duty Deane of a of a or the violation the breach Bridge P Co., 440, 29 167, 172, v. Willamette Or may Damages as well LRA 614. include mental, suffering. Fehely physical, Senders, 170 Or ALR 1092. 135 P2d might disagree effi minds well on
Seasonable ciency desirability comparison a retraction money damages. 69 Harv L Note, See Rev with sincerely agree persons, I that for some defamed might vindication, interested retraction be an remedy may trifling than even better some verdict. persons equally other defamed assumed good, possibly do little would a retraction would com only rarely pound the same would reach harm, by original public Morris, reached defamation. See Newspaper Ill Retraction, Libel and Inadvertent L Rev 36. such considerations are beside However, remedy the mark the chal unless the afforded lenged statute is at law as demanded constitution. meaning explained law of due course of was argument in Dart- Daniel in his celebrated Webster College (4 Wheaton) Woodward, 17 US
mouth
The found in the Dartmouth case are relied in Hanson v. Krehbiel, 68 Kan 670, 75 P 64 LRA 790. And 1041, see the 2 discussion in Cooley, supra, Constitutional Limitations, 733-741, supra. v. Mixon, 38 Miss 424, Griffin plaintiff The retraction statute affords the no in- hearing adequacy dividual or trial to determine the remedy of a case. "Whether the retraction has reputation restored a or further beclouded it remains mystery. “remedy” operates rather automati- cally legislature to close the doors of the court. The arbitrarily has declared that a decision to retract, rendered the tort-feasor, shall be the exclusive remedy. “given” by The retraction is not the statute; merely mitigation is converted from a defense in to a defense bar. legislature may
It is settled that the not declare a price per “just compensation” certain acre to be for a taking ownership massive of land in divers under emi deny nent domain. To do so would the individual just compensation owner a trial to determine for the specific property. E.g., loss of his Hood River L. Co. County, v. Wasco 35 Or P 498, 57 1017; Branson v. Bragg Gee, 25 Or 36 P 24 LRA 462, 527, 355; Weaver, 251 US 40 S Ct 64 L Ed 135; Backus Depot v. Fort Street Union Co., 169 US 557, 18 S Ct Cooley, L42 Ed 853. See Constitutional Limi supra, tations, 743, 758, 1207; Davis, Administrative §7.04. Law
Similarly, can not declare that re- traction shall be the exclusive for the loss of constitutionally protected reputa- interest in one’s requires tion. Due course of law hearing individual to determine whether’retraction has in fact restored plaintiff’s reputation merely aggravated legislative judgment wrong. statute that the plaintiff been whole. the constitution has made But personal rights fungible speaking and not of day goods. must The ancient rule there abrogated by fact court has not been law guarantee any given judgment does not can be collected Hanson Kan Krehbiel, on execution. supra. *17 majority justified relying
As will in seen, is upon only passed upon one case which has the con- stitutionality of a similar statute. Werner v. Southern Newspapers, etc. Cal. 35 Cal2d 216 P2d 121, 825, appeal ALR2d 340 US 71 S Ct 252, 910, dismissed discussing L95 Ed 657. 290, decision, Before it may be instructive to consult the authorities else- where. pro-
In Moore v. Stevenson, 27 14, Conn statute every alleged “[t]hat in vided action for an libel, the may give proof defendant of intention; and unless the prove plaintiff shall malice in he shall recover fact, nothing damage proved specially but his actual alleged in the declaration.” Connecticut Public Laws ch LXXVII. court The construed “actual dam- age” special damages, recovery to mean without for general reputation. loss It then held, in order to constitutionality save the the statute, that “malice” negligence any wrong- would have to include as well as ful state of mind. To the same effect is Hotchkiss v. supra. Porter, 30 Conn Our statute does not admit of such construction in order save it. Michigan
Like the court in v. Porter, Hotchkiss Supreme Park Free Press Co., Court 72 Mich regarded supra, legal remedy a substantial for one defamation as of the fundamentals of civil order. general puni- The in that statute ease abolished damages against newspapers except actions tive charges- request or malice, cases of actual crime, and refusal retract. court’s conclusion has quoted: often been holding for in a “There no room constitutional any subject
system
reputation
private
more
legal protection
be removed
statute
full
to
than
from
liberty,
property.
is one of those
life,
necessary
society
rights,
to human
that underlie
* *
of civilization
*.
the whole social scheme
it 4Í5
íí
^
S
Legislature
competent
give
not
for the
“It is
liability
legal exemptions
one class
citizens
wrongs
granted to
not
others;
it is
competent
person,
ar-
to authorize
natural or
wrong
answering
to others without
tificial,
do
**
wrong
fully
In Hanson damages special in cases of retrac barred all but ute malice. 18 of the Kansas tion without actual Section injuries Rights provided: persons, “All Bill of person, reputation property, or suffered in shall have remedy by justice course of administered law, due delay.” The court held that under “due without course deprived reputa of law” one could no more of his self-executing property tion than man of his legislature. date of the “* * # not excuse We could ourselves
holding reputation [sic] is less valuable property, quoted provision or that rights protected spoliation. bill of it is less easy “It is not an matter to deduce, either from satisfactory reason or the authorities, definition of law of the land’ or ‘due course of law’. How- standpoint, saying from either ever, that we feel safe in legis- give terms do not mean act these that the may passed, lature have if such act does not opportunity being to one an deprived to be heard before property, liberty, reputation, or or, having deprived been does either, not afford a opportunity injury like to show the extent of his gives adequate no to recover therefor and. lature may not be ready suffered. say, courts, *34* “The retraction ÍÍ# 44- however, ^ inflicted determined upon proper [*] * * may # might not be full # that these are all than # arbitrarily by rather required notice to all Kans, mollify reparation aggravate supra, it. the act in an act of sufficient to It is questions parties, 674-675. for injury question for the injury legis- may al- Leach, 135 NC SE 66 LRA In Osborn provided absent bad statute unrea- that, faith, *19 only after notice, to retract failure or sonableness, against a damages” news be recovered could “actual preserve Again, the constitutional paper. in order to damages” to ity “actual held the court statute, of the damages. special general The court and both include supra, v. Park approved and Krehbiel, v. Hanson supra, North Caro that the and concluded Press, Free con if been unconstitutional lina statute would have remedy for retraction the exclusive to make strued 194 NC reputation. Park, Accord, loss Pentuff ALR 626. 146, 138 SE (6th F Cir, Butler,
In Pub. Co. Post provided: 1905), statute “ publi- appear at the trial, £If it shall good complained faith, in made of was cation through ground reasonable with fact, but mistake believing contained therein the statements publisher and demand true and that
were published a thereafter, time a reasonable within public complete full a manner in as retraction and original publication was which said as that attaching presumption or of malice made, publication growing libelous of said out of the provided thereby rebutted; matter shall be prevent nothing in this act shall contained proving alleging person malice on actual libelled from any special part publisher and ” resulting damage himto therefrom.’ Rev Stat 1900), quoted (as §5094 as amended Ohio, 137 F at provided:
The Constitution Ohio “ every open, person, £A11courts shall be goods, person, injury him done in his lands, remedy by reputation, due shall have course justice administered without denial or law; ” delay.’ § Art Constitution Ohio, quoted F in 137 at 725. *20 recovery barring a that statute held Circuit Sixth upon reputation would unilateral retraction
for of loss to then the statute and construed unconstitutional, be request only recovery an actual in case of bar such thought request a a for The court for retraction. right would a waiver of the constitutional retraction be to a trial. sustaining way the constitu- can of “We see no by tionality except placing the it of law this by plaintiff. Not the
construction contended put opera- only required to into is a retraction at demand the be made the but retraction must tion, By injured person demand the the libeled. such of remedy law person had the the he under waives gen- accepts of the lieu stood, as it eral retraction damages, he restricted, and consents reparation ato afforded, the thus in addition to recovery special damages of where he can show interpretation not he is actual malice. Under any right deprived of constitutional he because application to the new to his consents law If he has consent, case. under does not he still * * F the old law at 727. Printing v. Hoboken & Pub. 75 NJL Co., In Neafie A the court stated: argued “If it be that the act of 1898 must be light in of the common-law termi- construed nology dam- actions of and ‘actual libel, age proved specially alleged in the declaration’ (in legislature to intended exclude it was the absence of proof express malice fail- or the upon request) all ure to retract the libel allowance general injury compensation plain- for the say reputation, it is we tiff’s sufficient, think, adopt a such construction would neces- sarily of right render the act unconstitutional. The reputation against person to be secure in his attacks such as unwarranted and libels slanders right enjoying part pursuing life obtaining safety happiness guar and anteed -whichis Jersey our fundamental law. New Con pl. stitution, art. 1. And same instrument, conferring upon every person right freely speak, publish write and his on all sentiments sub
jects, imposes responsibility at the same time a right. people the abuse of that In short, the of this who ordained state, have constitution, empowered legislative body to authorize newspaper publisher other citizen to un justifiably injure neighbor’s reputation his without Q-ood making compensation injury. for that mo specific or the absence of tives, malice, are im portant mitigation punitive considerations in *21 damages, they but are no answer to a claim for * * compensatory damages 75 NJL 567, at Byers Ptg. v. Meridian Co., 84 Ohio St 95 408, (NS) NE LRA 38 held 917, 913, unconstitutional a apparently barring special statute damages all but denying remedy by after retraction as due course injury reputation. of law to Age Publishing In v. Ala Comer Herald Co., 151 (NS) provided 613, 44 So 13 LRA statute proven that in case of retraction, where there was no only damages” “actual malice, could be recovered. In constitutionality order to save the of the statute the damages” court construed gen “actual to include both special damages. eral and Publishing
In v. Co., Ellis Brockton 198 Mass provided: NE 1018, statute “ plaintiff proves ‘Unless the actual malice or good the want of or a faith, failure either to re tract or offer retract as he shall re aforesaid, only damages injury cover for the actual sustained, exemplary puni but in no action of libel shall ” damages § tive be allowed.’ R. L. c. 173, 92, as quoted (1908). at 543 198 Mass difficulties in order avoid constitutional court general special include “actual” both construed .to damages. Meyerle Co., 45 ND v. Pioneer Pub. NW 568, 178
In damages, special all absent barred but the statute after or failure to retract unreasonableness, faith, bad good in cases of held that retraction The court notice. mitigate gen damages punitive faith avoid would damages general damages, not avoid would eral but injuries retraction. This as remained after the for such again the constitu to save was made construction tionality of the statute. 1950), (Florida, Gore,
In Ross 48 So2d damages” in all but “actual cases of statute barred had no actual malice. The retraction where there been again in order save constitu court, Florida damages” tionality construed “actual statute, of the damages. general mean summary cases I have found shows that This Newspapers, prior etc. Southern Cal. to Werner many supra, none of courts called Cal2d had retraction statutes held constitutional to review made retraction exclusive statute appear In do not two states similar statutes for libel. appellate in the courts. Baldwin’s to have been tested (Cum (1955), Kentucky §§411.050 Rev 411.061 Stat, *22 (1959 1961); Supp Supp), 1943 Cum Neb Stat Rev § 25-840.01. Supreme upheld
In Court the California 1950, has no constitutional statute. California California majority opinion, § The I, like our Article section many ways, persuasive argu- by Traynor, a is, J., parliamentary absolutism. Werner v. South- ment for Newspapers, supra. 35 Cal2d etc. ern Cal. majority likely, the California therefore,
not 432
would have reached result our different under con- provision. majority, stitutional like California question policy sees the ours, as one that must be addressed to the rather than the court. majority proper The California that a held exercise judicial prevented making restraint the court from qualitative judgment upon adequacy remedy, legislative and that of a elimination at law in- right. holding, vaded no In constitutional so however, gave the California court considerable attention to policy arguments majority of its own. The California thought, example, Assembly for that the was moved jury to eliminate the “evil” of trials. Werner South- Newspapers, supra; ern Cal. etc. and see Chafee, Possible New Remedies Errors m Press, L Harv Rev 1. Such considerations are, course, legislative matters resolution within constitutional expressed But limits. constitutional limits ishould not ignored. Strong dissenting vainly urged voices Cali- weight authority fornia to follow the elsewhere. dissenting justices suggested there that the ma- jority exercising judicial was abdication rather than restraint. recently
This court has reaffirmed the rule that say Legislative Assembly we can unless acted contrary express to an constitutional limitation its question action is valid. The wisdom is subject judicial not review. State ex rel Overhulse Appling, 86; Or P2d Warren v. Marion County et al., Or 353 P2d cases depart I cited therein. would these decisions. guaranteed where the However, constitution has its remedy, legis- authors and their successors if the only remedy known lature thereafter eliminates the something judi- law to the and substitutes ais else,
433
question
resolve a properly presented
cial
function
remedy.
fact,
remedy is,
whether
substituted
an ex
is as
the statute
says
proper
The majority
as are
ac
widely
discretion
ercise
statutes,
city-sidewalk stat
automobile-guest
cepted
and the so-called
laws,
workmen’s
utes,
compensation
Werner case.
in the
heart-balm statutes
referred to
(the
between ORS 30.165
retraction stat
analogy
and legislation outlawing breaeh-of-promise-to
ute)
actions is weakened
fact
marry
by the
plain
tiff in a
libel case
vindicate a
seeks
constitutional
and not merely a common-law
right,
right. Further,
such a
does
plaintiff
not ordinarily have the attributes
of a volunteer frequently possessed by plaintiffs labor
under other
ing
statutes which
or in
substitute,
cer
tain cases eliminate, common-law remedies. With ref
erence
statute,
court ob
automqbile-guest
served that
there was no established rule of common
law
such
when
covering
cases
Article I,
10, became
§
v. Ganiere,
part of the basic charter.
Perozzi
supra,
149
at
In
Or
the so-called heart-balm statutes,
no constitutional
rights were involved.
I recognize
in each
that,
of the instances
re
mentioned,
proper
spect
prerogatives
legislative branch
of government has
compelled
courts to
uphold
substitution of a substantial
alternative
remedy for a
common-law cause of
or the
action,
elimina
outright
tion
aof
remedy when to do so violated no constitu
tional guarantee.
Ganiere,
Perozzi v.
On satisfactorily answers the ob- which found no case Michigan jection expressed court when considering than our far less drastic a statute it was addressing itself to the after There the court, own. unreality give only special remedy purporting aof chastity may damages have been whose to women profes- impugned of ethical or to defamed members practices, of their considered sions for destruction quote: shopkeeper. We “* '* * very rare in which cases must be destroy way profits in such a business a libel will that the directly traced to the mischief loss can be * * where a does not reach cases *. The statute operated to. cut off chances of office or libel has up pre- employment or in the or broken future, capable money relationships exact vented intangible produced or but fatal standard, spreads suspicion, helped ill will, influence beyond by apology recall or reach or retraction. continually reproduced Exploded lies are without and no one can antidote, the accurate standard the measure with precise amount of evil done probable.” supra, Park v. Free Co., Press atMich 566. expressions are found in I
Similar the cases have the comments of the cited, reviewers. See Newspaper Inadvertent Morris, Libel and Clarence supra; Frye, LIll Rev Retraction, 32 William Note, primer OLR Professor Morris, his on torts, observes that while the Werner decision in California may turning point abe in the law of is in libel, it wrong (1953) direction. Morris, Torts 297. I am sorry Oregon way. to see turn the same
I would reverse the trial court. and JJ., concur in this dissent.
Warner Sloan, dissenting. SLOAN, J., opinion
I concur in the of Justice Goodwin. How- importance ever, because of the of the decision, it proper express seems to some additional considera- judgment tions that must influence a of this conse- quence. judicial policy adopted If the is to be con- sistently followed, then this decision will be one of reaching the most far that this court has announced years. in adopted recent majority The court has opinion in Werner v. Southern Associated California Newspapers, 35 Cal2d P2d 825, 13 ALR thereby 2d 277. It embraces the most extreme view of judicial legislative if not deference, surrender, to su- premacy. opinion is not attempt It the intent of this to say only calamity will follow. It is, rather, attempt express differing point may, of view that hoped,
it is be of value to those who will later con- judicial policy tinue mold the of this state. purpose opinion of this to draw into judicial
sharper the distinction between focus review that are within the acts constitutional legislative power and those acts wherein limits legislature abridges the constitutional function of judiciary. frequent To avoid the tedium of cita in a footnote ‹ and I have references, tions collected particularly preparing much of the material used opinion. It is not exhaustive the literature on by any subject, means. It has been used because respect material found in it is the best to the historical judicial development appellate review the state Although writing courts. on the work of the Su preme is without too little attention by limit, Court has judicial given appellate been review courts at Rev 427 531, 533, Rev 16 Rev Case Note: 34 Or L Rev 20 Applicable Constitutional litical Science Review 898 635, 650, 651 (1935). (1954). (1954). Avoidance Recent ‹ Thayer, Haines, Warren, Shearer, Schwartz, 33 Minn L The Dodd, The Problem of State Thiele, Coxe, Jaffee, The Field, Unconstitutional Hickman, Field, Unconstitutional Corwin, The Dean, Carey, The Doskow, (1960). Supreme (1948). (1954). (1940). Judicial Judicial to Statutes Decisions, The American Doctrine Jr., Thayer (1920). Congress, Judicial Review of Convention of Constitutional Rev Historic Oregon Right (1954). Judicial-Self Constitution Political Court Power Supreme Review, Legal to Judicial Review, Constitutional The Constitution Constitutional Dealing Opinions and Unconstitutional Essays of 1857 (1941). Legislation Utility Legislation Court Judicial Responsible Restraint with Civil Constitutional Issues (1949). (1908). Legislation What (1926). (1957). of Judicial Laws — *26 Legislation Judicial in Indiana, and the Supreme Court in Minnesota, It Means Government Proceedings Part United Presumption Civil New Liberties, in Utah, Construction, Legislation Supremacy Review, 2, 1958, Rights Jersey, and Judicial Today, States 17 Ind L J 101, 40 Col L Rev and Debates 40, No. 1, Nebr L 4 Utah L Rev 35 American 71 Harv L R 769. 2 Kan L R 392 Cases, of Validity Not Supreme 12th Ed. (1893). (1932). Rutgers 20 Col L Rev Oligarchy, 48 Col L (1935). (1941). (1958). Court U L Po- necessary It and is to con- the state level. has been background judicial review as sider the historic basically problem is, such. here However, legislative simply recognize shall the court stated, tampering supremacy is even when the legis- constitutionally rights? with stated When courts lature sees fit bar a citizen’s access to the to legislative must that determination be treated with extended same deference that should and must be exclusively legislative purpose? particular ap- problem will be The of this case aspect proached from One, directions. two by given pro- protection course of law the due the state and with visions of federal constitutions particular reference to Section Article our own at the constitution. look broader And, two, judicial aspects restraint of function. remedy provides equi- It is said that the statute valent that an action if for libel. Even this as- sumption argument were which it is correct, not, is wide of the mark. The test to decide if a equivalent damages. retraction is must con- What remedy by cern is to if us decide is one accorded due course of law. guarantee Article of Section the Ore- “every
gon that man have shall Constitution injury person, of law for done him in his due course reputation” property unique is somewhat in the “reputation.” hap- word It was not a inclusion of the pro- penstance' use of the word the framers. ceedings Convention, of the Constitutional before of the word was make it clear the use cited, say inferable, least, deliberate.
this means the framers wrote into the constitution they a cause of action for libel as knew cause *27 were con- Other provisions to then exist. action would have limited the convention at sidered of adoption. these failed for libel but a of action cause lawyers. able included delegates The convention acted with lack of under- that they cannot be assumed that the cause demonstrate standing. proceedings essential for the pro- was not deemed only of action with but citizens, this, together tection of individual Article were to provide of Section 8, the provisions free- the otherwise absolute restrictions upon required us available to dom of the press. proceedings to be over- may they not be conclusive but are that legislature nullify if can deciding looked in of the constitution. command specific Water Co. Valley Ohio familiar case of In the now Borough, v. Ben Avon 253 US S Ct held that in a rate case “if the L Ed it was 'his will result, confiscation of property owner claims that issue to must for submitting the State provide in for determination its own tribunal judicial upon facts; as to both law and other judgment dependent order is void because conflict with the due wise the L64 Ed Amendment.” Fourteenth clause, process that decision was with read, together Ever since that holding Brandéis, the dissent Justice as to judgment” court must exercise “independent an irritant has created both law and facts has been much agitation. due
However, compulsion judicial process of confiscation has never been de- an allegation modified. Are we then to hold confisca- nied or holds some than confis- higher right tion of property ¶ Particularly, when :our own reputation cation reputation constitution protected equally what By right with does the or legislature property. t-his court assess the value of attempt property'.'as than entitled to different in- degree protection to. If the were jury reputation? person to- the Highway Department to take permit property the taker and rule would be the sole judge would court value thereof sustain such law? .far. Certainly, would not so Tet some un- go *28 the value of is now de- reputation explained-alchemy to second rate status in the graded constitutionally values. Justice Brandéis has protected recognized that function the form of legislative adminis- trative is not due In Ng Fung action, judicial process. v. White, Ho 1922, 259 US 42 S 276, 284, 285, Ct - - L66 Ed 938, he said:
“It may result also in loss of both property or of all that life; makes life worth Against living. danger of such without the sanction deprivation afforded by judicial the Fifth Amend- proceedings, ment affords in its of protection guarantee due of law. The process difference in of security judi- cial over administrative action has been adverted this court.” by in some Although instances due be process may done without benefit of the judicial it has not robe, been held that constitutionally can be protected rights taken n other than by judicial process. . is said, that however, above comparison condemnation is property inapposite
because the only measure of damages taking prop- is erty money. And, amount of therefore, money must be decided judicial due That process. The question. is: Who will decide question how
much money value is if lost, any, by the taking' or property by the tailing reputation? majority hold the legislature that can that predetermine xepu- money never has value. If the can,
tation taking “policy,” matter of as a decide that any money reputation can value then never have what pre- constitutional restriction can be found that other policy legislating land in it from that cludes negligently law, taken or force of shall never state, per acre? acre? the value of Or $5 exceed $100 only difference between such statute and the historically we consider is the instinctive notion one damage taking precise of land has some that or damage reputation and that measurable value or person Anot. review of the evidence in to'the does ingrained dispel or condemnation tax case should lingers with 'land. instinct premise matter fact the entire In the the ma- jority assump- decision in this case based reputation; negli- matter how loss of no tion recklessly gently can never result taken, mone- reputation tary It is 'loss of can loss. assumed compensated informing only those who wrongdoer was choose to notice that mistaken. *29 money assumption reputation no The has value contrary every taught precept we are child- is any example practical ask desired, hood. If a more any seeking employment. pro- Ask reformed ex-convict reputa- his man sole worth in life is fessional whose year spends Ask who tion. advertiser $10 establishing product reputation of his $10,000,000 or service. legislatively problem fixed whether com- is not
pensation of land or retraction loss of loss equivalent judicially reputation determined is the question requirements rights. Does it is: meet of the constitution? guest sustaining the
It is said that the cases stat-
441 'and acts in compensation utes workmen’s the several states power legislatures pass support least question. At do Oregon, act the cases that conclusion. The first act support guest which to abolish the cause attempted of action altogether Houk, Stewart v. was held unconstitutional. 127 1928, P Or 272 ALR 998, 893, P 1236. The Work men’s Act of this does Compensation state not attempt to deny judicial process.
A declaration is not an ade- legislative policy quate substitute for due process.
The second is directed at the conflict approach exist between the has, does, exercise of judicial versus function. Eeference to some of the works cited at the outset will disclose that, historically now, has been a conflict of many duration and participants, unending has occurred on both the federal and state fields contest. if not
interesting, significant, to note that this debate started with decisions some of the state be courts fore the federal constitution was adopted. › Marbury v. Madison, L Cranch Ed was not the original sin that fomented charges of “usurpation” of power. The debate as to the extent of re judicial view before began then has never at stopped either the state or federal level.
The Federal Court been Supreme has attacked by state when righters that court was dominated fed- eralists. It has been under equally strong attack the federalists when it has been dominated state The most recent all out righters. attack, is still within the memory of us. In an most of earlier › Haines, Review, supra, The American Doctrine of Judicial Note 1, p 148 et seq. *30 Legislation, Coxe, Judicial Power and Unconstitutional Note supra,
4á2 attacks. similar the state withstood'
time some of courts upon state courts have In moré times the attacks recent the state But that is because subsided ór ceased! any power relinquished to the their courts have struggle process. that at In whole fact the many "engaged the if not active, violent, times has by fought people attention and has of the whole been groups strongest political power can, men and of the inescapable thus to but one conclusion: lead far, ap- people, days to have never now, from colonial proved tolerated the funda- nor restriction of judicial Every attempt power. mental exercise by power, limit what circumscribe or matter .no agitated, force it has been has been consumed strength opinion. public attempts, All one, save amend the federal constitution so to restrict Supreme has Amendment Court failed. Eleventh against Every amend- restrained actions a state. other judicial power, enlarged ment it. that touched Every existing adopted after state constitution was judicial power questions extent had several of the erupted. people times The men who framed and the adopted who were much state constitutions aware restrained edict of constitutions that, unless they adopting, were courts would-continue ex- power. ercise that not one state consti- Nevertheless, power judicial deprived tution has its courts sug- forms review. Various of restraint have been gested, vigorously strong political supported by any adopted have To the forces; few been state. contrary many every imposed state has constitution power the-legislature. restrictions on the may just aca- What has been said considered given question hand. Not if it is demic to the at so, ' concept intended. *31 Judicial is a power handmaiden locked zealously in the archives of It unapproachable the courthouse. is not a beneficial to the power judge or permits him any unbridled over lives authority the and well the of It is being the the have people. power people permitted to remain in the judges to them protect from executive or legislative encroachment. It is the I the in power, believe, wanted exercised people just such a as case this. The instant the statute, impact of which was unknown to someday those who would be of is kind of deprived rights, very legislation for which the of judicial review was retained. power
What could have to people possibly been present resist the forces that induced to enact legislature statute libeled question? person-to-be What could that as a result of this anticipate legislative action his a access to court would be barred to him? of Few, any, if the citizens of this state would have been aware that a with tampering constitutional rights was in Nor is it as it is any answer, said progress. Associated Werner Southern Newspap- California ers, 216 P2d that the restric- Cal2d supra, only tions on the is found in the concerted legislature action citizenry. alert practical reality function cannot dismissed with legislative What platitude. conceivable of citizens could group possibly pressure counter the induced group to this act. have No, the pass people reliance on the placed preserve particular courts to land of no other right. despite the For, platitudes, pro- it to me, greater wrong tection To shun exists. case to this kind of than exercise judicial power it full extent. Our duty to the people para- is not be curtailed by mount and absolute. judicial obeisance to sense
mistaken mandate.
It has said: 'been many re- of law are “In the framers countries power,
garded ing possessing hold- unrestricted as liberty every in their hands the life most mon- their citizen, who owes obedience judg- arbitrary by sounder until, strous and edict, only minority repealed. can A ment, the edict is who law of those hold trust forbearance only making power. by resist fails can When who framed *32 Such was the view those force. They republic. the French the of first constitution rights of man more a declaration of the inserted rights They any than bill of we have. elaborate by directing attempted that its observance to secure upon placed in the it ‘written tablets and be legislative body places,’ public and in midst of the may always eyes people have that ‘the before its liberty strength, pillars of its the fundamental of their duties the authorities the standard the ” object problem.’ legislator the his Green, L 1913. Amer. Rev says in their hour of need the Green, mean-
But, phrases people ingless failed the of France. Green says framed our that those who constitutions were than the of France.” a different mind “statesmen History proposed urged that those who the reveals Rights adoption Bill the to Federal Constitu- anticipated that it would be courts, tion not legislature, Mapp v. that would enforce them. See L Ohio, 643, 6 Ed2d decided June 367 US adopted people constitution was our When judicial power it had this state knew been into what would life and force other- had breathed generalities. constitutional must wise have been people, reason that then and since have then, supported judicial just but the use of tolerated developed power in this nation and state. as it has Article IV, the amendment Section 6, Witness adopted Oregon in 1952. This amend- Constitution power compel legis- placed in this court the ment people reapportionment. then knew that lative ignore legislature the constitu- would continue required had mandate which tional periodically so. do or the federal state courts been have either
Nor restricting legislative upon encroachment reticent early Murray judicial of Den ex dem case In soil. Improvement Company, Land and Hoboken (18 How) L Ed the court said: 272, 281, US grave so misconstruction “To avoid proper
subject, to state that we do we think it Congress either withdraw from can not consider cognizance judicial matter from its which, subject suit at the common of a nature, law, admiralty; equity, on the other nor, inor judicial power, bring under can hand, subject is not a its nature, which, matter judicial determination.” In overruled. Crowell never been has
That case *33 76 285, 291, 52 S Ct 56, 57, 285 US Benson, 22, 1931, approval quoted and with was above L the Ed 598, pen stronger language from the even with followed Hughes. the latter case carries True, of Justice Chief by which he contended in Brandéis Justice a dissent general power in the judicial was vested the the inferior federal courts. government not in and majority emphasizes of the court that a The dissent opinion has not That been thought otherwise. own said Our court has changed case. decided 446 West v.
the same Jaloff, thing. 113 Or 1925, 184, ALR Houk, Stewart 642, 262 P 36 1391; supra, 127 271 P In 589, 998, Or P 893. fact the majority should now overrule and opinion openly these similar eases. does so implication. of Indiana court and Utah have Arkansas, which limited the appeal.
voided statutes
of
right
Louis
A. Rd.
Mathis, & N.
Ark
St.
Co.
France,
Ex Parte
Ind
763;
91 SW
72;
District, et
Conservancy
al,
Patterick v.
Water
Carbon
within the legislative it limits or when denies legislation be given should of committed. wrong to a for the redress access court restrictions have been All too often such attempted Legislation Minnesota, supra 35 fi in Ameri Field, Unconstitutional 898. Political Science Review can Legislation L J Indiana, supra, 17 Ind in Field, Unconstitutional Legislation supra, 4 Utah Utah, L Hickman, Review of Judicial Rev 52. Legislation States, 1943. in Ten Selected Field, Judicial Review Our reference is not available us. compilation The last cited compilation of Utah decisions. compilation is found in Hickman’s this Colorado, Illinois, Indiana, states, of the Massa- He names chusetts, nine only Dakota, South Dakota York, New North Hampshire, New comparison: Hickman makes Wisconsin. before the number statutes court important “More subject of the attacked. If all matter statutes statutes figures considered, for Utah follow closely 1896 be attacked since for ten related states.” data Professor' Field collected which showing in the related states presents then a table ten .He government subject percent involved in 28 Utah, was in statutes. Courts. subject numerical in the ten states Next order was subject states, percent was in 18 For the ten involved percent, Utah was fourth and in Utah 13 numerical statutes order. *34 many. the benefit the few at the loss of the typical. This statute is The courts have, recent years, acquiescence with common refused to inter- legislatively political fere in decided economic, policies. social But the and' is, should be, equally unwisely interfering bound to refrain from right to enter with citizen’s the door of a court- supplication In room and relief. such an instance legislative validity presumption of should fail placed pro- should be on and the burden the interests legislative action to tected show, evidence justified strong the evils need, abolition particu- cause of action. This of an established is larly recognized the cause is one true when in the constitution. if it follow that we void this
Nor does statute it every cause of action as it freeze existed will when adopted. point was is that the constitution due process, form of an as it exists established not be abolished of action should unless there cause strong that’ the cause of action evidence has be- greater injustice corrupted results in so come justice. cause A of action, it does in this than as be evils that do should not abolished ease, be shown exist. and cannot not exist Jersey, v. State New In the case Schneider L 60 S Ct 84 Ed 155, 308 US said: court every therefore, case, where “In rights
abridgment’ asserted, courts to examine astute effect be should legislative prefer- legislation. challenged Mere of; public respecting matters con- beliefs ences support regulation may directed at well venience personal but insufficient activities, other - .rights exercise of. diminishes the justify such maintenance so vital of democratic institu- so, And as cases tions. the delicate and arise, *35 the to difficult task falls courts the weigh and to appraise circumstances substantiality the advanced of the of the reasons support regula^ enjoyment tion free of the rights.” must For it be remembered that when the legisla- ture abolishes cause of action to benefit a favored it must be to be because the courts few taken have of It is a failed to the the few. protect rights recogni- have fraud or tion that the courts allowed partiality the of the justice. to course When courts sus- warp it not acknowledgment only the act is a tacit of tain to but also justice the failure admission dispense wrong, the courts cannot if one negation If the courts sustain of exists. the test by applying only judicial established process reason rational legislation, of a conceivable is for the nullify way open legislature then the If judicial due due judicial process. form of any not be so of its it should worthy keep readily process surrendered. in the first his Legal Essays of Thayer
Professor decisions into divides constitutional three gen- (1908) et (P. 33 seq.) classifications: eral validity pass upon where “(1) judges acts a co-ordinate department; as act advisers the other de- they where “(2) partments ; where, representing government as
“(3) with authority, deal they acts paramount a co-ordinate.” not department he later says: third classification In respect to what is relates admitted “When the question then the national whoever belong power, not whether State constitution, construes State judiciary, legis- or national must allow to that range lature the full of rational construction. But question when the is whether State action be or paramount be not conformable to the constitution, supreme law of the we have a land, different Fundamentally, matter in hand. it involves the power governments, allotment of between the two judi- —where the line is to be drawn. True, ciary debating is still whether a has transgressed departments its but limit; are and the co-ordinate, limit is at a different point. judiciary speaks representing now paramount government, a duty constitution and whose departments, it in all its is, to allow to that nothing just constitution less than its and true interpretation; having guard fixed this, against inroads from without.” Thayer, was one severely who who would have *36 judicial limited later contended review, that the above apply rule should not testing when state courts were legislation against state His the federal constitution. argument appeal Supreme was that an since to the only could be Court taken when the state sus- court legislation tains the the state court should sustain any proposed on basis at all. Whether restraint arguable. on the state major courts was sound is premise was sound. And if that be true then we against superior should test instant statute rights guarantees of contained in the federal consti- Supreme As we have tution. before seen, Court unwilling been and now is has to surrender constitu- tionally protected rights citizen in favor of legislative only encroachment based on some ration- ally legislative policy. conceivable declaration Boyd States,
In the case United 1885, US 29 L 535, Ed the court S Ct said: may thing it “It be that is the obnoxious in its repulsive illegitimate least form; mildest and but practices get and unconstitutional their first foot- namely: by ing way, approaches in that silent and slight legal procedure. from deviations modes only by adhering be to the This can obviated ru provisions security that for the constitutional liberally person property shall construed. deprives construction them of A close and literal gradual depreci- efficacy and leads to 'half their right, if it more in sound ation of the than as consisted duty courts to be substance. rights of the the constitutional watchful for any stealthy against encroachments citizen, principiis. obsta motto should be thereon. Their body no doubt We have that by the vast ac- motives; but 'actuated same ' brought public before it cumulation of business presentation, prevents aon first it, sometimes developed noticing objections become application practical of the obL and the time (cid:127)jeetionable law.” part, approved quoted, expression was
This supra. Mapp Ohio, 367 US 81 S Ct proper may . with the said,. it be In .conclusion opposing view, who hold those deference judges strong strong courts and the has been n promises into transformed have constitutional Bights rights. innocuous living that can be lost concepts nibbling bold assertion. as well preserved .not attained now were until have been by judicial surrender. maintained nor ' pallet language *37 of Benjamin from his Oardozo thoughts in- I have color to words blended' express: eptly to endeavored “* n * * argument of the critics of That lays My system. existing is that'it own belief ‘imponderables.’ of the on the value stress too little restraining power utility an external is not judgment measured counting occasions its exercise. The great ideals of liberty are equality preserved against assaults opportunism, expediency passing hour, erosion of small encroachments, the scorn and derision those who have no with patience general principles, by enshrining them in constitutions, to the consecrating task of their protection defenders. body con- By scious or influence, subconscious the presence of this restraining power, aloof in the background, but none the less always tends reserve, stabilize and rationalize the legislative judgment, to infuse it with the glow principle, hold the standard aloft and visible for those who must run the race and the faith.” keep Cardozo, The Nature of the Judicial Process, (Footnotes omitted), The judgment should be reversed. I am authorized say in this J., joins dissent. Goodwin,