But the considerations that prevailed also are cogent and so obvious as not to need statement. Moreover, the question is not whether the later statute constituted a contract, Damon v. Hawaii, 194 U. S. 154, 160; Wisconsin & Michigan Ry. Co. v. Powers, 191 U. S. 379. The courts of the Territory have given to the railroad the rights that it claims, as against the territorial authorities seeking to levy the tax. The only question is whether any sufficient reason appears for not following the construction given to a local statute by the territorial court, when that construction is inherently reasonable, is at least the first to strike the mind, and is one that protects private rights. It is enough to answer that, on the principle followed so far as may be by this court, there is no such manifest error as to warrant us in reversing the decision below. Fox v. Haarstick, 156 U. S. 674, 679. English v. Arizona, 214 U. S. 359, 361, 363.

Judgment affirmed.

GANDIA v. PETTINGILL.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.

No. 97. Argued December 14, 1911.—Decided January 9, 1912.

In the absence of express malice or excess, publication of actual facts is not libellous, and in case of mere excess without express malice the only liability is for damages attributable to the excess; and refusal of the trial court to charge to this effect is error. Quare: whether attributing to a person conduct that is lawful can be libellous.

The stricter practice is to note the exceptions before the jury retires; but if all the exceptions are noted in open court after jury returns and no wrong is suffered, an exception will not be sustained on that ground.

4 Porto Rico Fed. Rep. 383, reversed.

222 U.S.

Argument for Plaintiffs in Error.

THE facts are stated in the opinion.

Mr. Frederic D. McKenney, with whom Mr. John Spalding Flannery, Mr. William Hitz and Mr. H. H. Scoville were on the brief, for plaintiffs in error:

It was error in law on the part of the trial judge to refuse to permit counsel for defendant below to state, while the jury was yet at the bar, his exceptions to such portions of the court's instructions to the jury as seemed to him to be objectionable either in matter of law or in matter of fact. Phelps v. Mayer, 15 How. 160; United States v. Breitling, 20 How. 252; Dredge v. Forsyth, 2 Black, 563, 564; Bram v. United States, 168 U. S. 532, 571.

The rule has been frequently reiterated and followed in the inferior Federal courts. Stone v. United States, 64 Fed. Rep. 667, 677; Little Rock Granite Co. v. Dallas Co., 66 Fed. Rep. 522; Johnson v. Garber, 73 Fed. Rep. 523; Merchants' Bank v. McGraw, 76 Fed. Rep. 930, 935; New England Co. v. Cathicolicon Co., 79 Fed. Rep. 294,· 295; West. Un. Tel. Co. v. Baker, 85 Fed. Rep. 690; Greene v. United States, 154 Fed. Rep. 401, 412; Accident Assn. v. Fulton, 79 Fed. Rep. 423; Dalton v. Moore, 141 Fed. Rep. 311, 314; Mining Co. v. Firment, 170 Fed. Rep. 151; Mann v. Dempster, 179 Fed. Rep. 837.

In Perez v. Fernandez, 202 U. S. 80, 91, this court spoke of the difficulty of undertaking to establish a common-law court and system of jurisprudence in a country hitherto governed by codes having their origin in the civil law, where the bar and the people know little of any other system of jurisprudence.

In the case at bar, however, the Porto Rican legislature by statutory enactment had "established" the civil action to recover damages for libel and slander and had carefully defined each of such offenses, had established certain rules for the guidance of the courts in the administration of such actions, and had declared in precise phrase

Argument for Plaintiffs in Error.

222 U.S.

when the existence of malice might or might not be presumed, and had provided by § VI, that if the plaintiff be a public employé, and the libel refers to acts connected with his office, judgment shall be rendered for the defendant if he prove the truth of his charges.

Under the generally established American law in every instance of slander, either verbal or written, malice is an essential ingredient, and whenever substantially averred and the language, either written or spoken, is proved as laid, its existence will be inferred by the law until, in the event of denial, the proofs be overthrown or the language itself be satisfactorily explained.

Under the Porto Rican law publications or communications of certain specified classes (see § 4) are expressly excluded from any presumption or inference of malicean exception to the law of inference being (see § 5) cases of injurious communications or writings "made without justifiable motive and addressed to persons other than to a relative within the third degree or other persons specifically identified."

Under the American law words prejudicial in a pecuniary sense, e. g., implying unfitness of a person in office, or improper conduct on his part in connection therewith, are said to be actionable per se, whereas, under the Porto Rican law (see § 6), if the plaintiff be a public employé and the alleged libel refers to acts connected with the conduct of his office, judgment shall be rendered for the defendant if he prove the truth of his charges.

Under the American law, in a criminal prosecution for libel, the truth of the charges made constitutes no defense: White v. Nichols, 3 How. 266; Dorr v. United States, 195 U. S. 138; although it is otherwise in the civil action to recover damages for libel.

Under the Porto Rican law the truth of the matters, written or spoken, of any public employé, is a complete defense to an action of libel and would equally seem to

222 U.S.

Argument for Defendant in Error

constitute a defense in the case of private individuals in the absence of evidence tending to show that the publication had been "made without justifiable motive."

At no time did the plaintiff either deny or seek to disprove the truth in matter of fact of any of the statements contained in said publications; on the contrary, he expressly admitted the truth thereof.

The Porto Rican act of March 9, 1905 (Laws of Porto Riço, 1905-1906, p. 123), expressly declares: "Sec. 1. That the fiscal of the Supreme Court, District Attorneys and municipal judges are hereby prohibited from engaging in the practice of the law."

Mr. Willis Sweet and Mr. George H. Lamar for defendant in error:

The complaint set forth a publication against plaintiff which was libellous per se. The language used showed a clear intent to injure plaintiff in his profession as a lawyer and to induce the public to believe that he was intentionally and continuously violating the law and guilty of unprofessional conduct.

The law of libel as it exists in most of the States is applicable in Porto Rico, § 568, Rev. Stat. of 1902; and as to what are libels actionable per se, see White v. Nichols, 3 How. 266, 285, 291.

Any publication tending to injure a plaintiff in his business or profession is actionable per se. Peck v. Tribune Co., 214 U. S. 185; see also Tillotson v. Cheetham, 3 John. 56; Tawney v. Simonson &c. Co., 109 Minnesota, 341; Lathrop v. Sundberg, 55 Washington, 144; Kidder v. Bacon, 74 Vermont, 263; Wefford v. Meeks, 129 Alabama, 349; Burt v. Newspaper Co., 154 Massachusetts, 238; Culmer v. Canby, 41 C. C. A. 302; Davis v. Shepstone, 11 App. Cases 187.

The court below, instead of committing error to the prejudice of the defendant below, ruled more favorably to

him than the law required when it excluded from the consideration of the jury in estimating damages the amount of the plaintiff's salary from the date of his removal to the end of his term of office. Sunley v. Insurance Co., 132 Iowa, 123; Kidder v. Bacon, supra.

The publications were not justifiable. It is quite different to say that charges are justified and justifiable than to say that they are true as charged. One is a matter of the opinion of the pleader, the other a matter of fact susceptible of proof. It is one thing to say that charges of “improper and immoral conduct" "are based upon facts"; quite another to say that such charges are each and every one of them true in fact—and to specify the facts which support each and all of them. The rule of justification is strict to that very extent. The justification must be as broad as the libel. And equally so that such a defense must specify facts, not be limited to generalities and conclusions. Newell on Slander and Libel (2d ed.), 796; Morning Journal Assn. v. Duke, 63 C. C. A. 459; Com'l Pub. Co. v. Smith, 79 C. C. A. 410; Kansas City Star Co. v. Carlisle, 47 C. C. A. 384.

If there was error it was harmless or without prejudice, and whether cured by instructions to the jury or in any other manner will not be considered cause for reversal. Drumm-Flato Com. Co. v. Edmisson, 208 U. S. 534; Texas & P. Ry. Co. v. Volk, 151 U. S. 73; Hartford &c. Co. v. Unsell, 144 U. S. 439; N. Y., L. E. & W. R. R. Co. v. Madison, 123 U. S. 524; So. Ry. Co. v. St. Louis &c. Co., 82 C. C. A. 614; Gilmore v. McBride, 84 C. C. A. 274.

MR. JUSTICE HOLMES delivered the opinion of the

court.

This is an action for libels and comes here upon a bill of exceptions after a verdict for the plaintiff. The alleged libels consist of a series of articles in a Porto Rican news