was the only question having any relevancy here presented in that case, or which the court undertook to decide; and the discussion of the evidence showing that the business carried on in said grain elevators was of such character that it had in fact become impressed with a public use was only for the purpose of showing that a condition of things existed which justified the legislature in passing the statute then under consideration." 143 Ill., loc. cit. 239, and page 282, 32 N. E. That case clearly announces that it is necessary in cases like the present one that the legislature should declare that the business "had in fact become impressed with a public use"; something which, as there stated, the courts were powerless to declare. But that case was wholly ignored in the case under comment. For these reasons, besides those already given during the course of this investigation, we decline to follow that case or regard its rulings authoritative.

7. There is one remaining point to be considered, and that relates to the anti-trust laws. So far as concerns those of Illinois, they are not of force in this state; and, as to those of the United States, they must be enforced in another forum. The law on the subject in this state prohibits "any pool, trust, agreement, combination," etc., "to regulate or fix the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insurance of property," or to fix or limit the production of the things whose price may not be regulated or fixed. Rev. St. 1899, § 8965. Nothing is discovered in this section which is at all applicable to the business in which respondent is engaged. Whether we apply to the words of the statute the rule of "noscitur a sociis" (McNichol v. Reporting Agency, 74 Mo. 457), or that of "ejusdem generis" (State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842), the result must be the same. And there is an especial reason why the ruling in this regard should be a strict one, and this is because the statute is highly penal. Moved by these considerations, we deny the peremptory writ. All concur.

ing a report of plaintiff's trouble with her pupils. Held that, in the absence of proof of actual malice, defendants were not liable for libel in writing a defamatory letter to the school commissioner in response to such request, since it was a qualified privileged communication.

Appeal from circuit court, Vernon county: D. P. Stratton, Judge.

Action by Lou C. Finley against E. T. Steele and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This action is prosecuted by plaintiff against defendants for $10,000 damages claimed to have been sustained by her by reason of an alleged libelous communication written by defendants to one R. L. Walker. At the time of the publication of the communication plaintiff was engaged in teaching. school at district No. 131, in Vernon county, defendants were members of the school board of the district, and Walker was the county school commissioner of the county. The communication which forms the basis of the action is as follows: "Richards, Mo., Feb'y 27, '97. Mr. Robert T. Walker, Com.-Dear Sir: We, the undersigned directors of school district No. 131, would most respectfully ask you to revoke the certificate to Mrs. Lou Finley, who at present has charge of our school. From the most reliable and conclusive evidence in our possession, we must say that she is totally unfit to teach our school. She is very tyrannical and abusive and indecent, and our school is doing no good. We have trouble, more or less, all the time, and have hoped, after having called her in and talked over the matter with her, that she would get along better, but things are getting worse. We could not enumerate all the charges that have been preferred, but she has kept someof the small boys in until one had to respond to nature in his pants, and another had to make a run for it, and afterwards to punishment for it. She has whipped unmercifully, pulled their ears, and otherwise mistreated them, until they do not respect her. She has called the children liars. And, hoping you will take immediate action, we are, yours, E. T. Steele, J. D. Todd, J. H. Fouts, Members of Board." Defendants, by answer, admit writing and sending to Walker, the school commissioner, the communication in question, and then allege that it was written in the discharge of their duties as members of the school board of said school district, and without malice, under substantially the following state of facts: The school term began in September, 1896. Shortly thereafter plaintiff had trouble with several of her pupils. During the fall, complaints against plaintiff as teacher were made to the board of directors. In December a petition signed by 12 patrons of the school, complaining of appellant, and requesting the board to ask her to resign, was presented to the board. Letters and informal complaints were sent by the patrons of the school to County Superintendent Walker, who, in response to the complaints made

Scott & Bowker and J. B. Johnson, for appellant. Brown, Harding & Brown, Wight & Wight, and W. C. Todd, for respondents.

BURGESS, J. (after stating the facts). The publication in question was with respect to plaintiff as school teacher, and is, upon its face, clearly defamatory, and, if false, actionable per se, unless absolutely or qualifiedly privileged. Absolutely privileged publications are legislative and judicial proceedings and naval and military affairs, while a qualified privilege "extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he owes a duty to a person having a corresponding interest or duty, and to cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation." 13 Am. & Eng. Enc. Law, 411. In case of ab. solute privileged communications the law, out of its regard for the public welfare, considers that all persons shall be permitted to express their sentiments, regardless of their truth, and affords them absolute immunity from any prosecution therefor, either civil or criminal, although the publication may be knowingly and willfully false, and with express malice. Newell, Defam. (2d Ed.) 418. There are certain restrictions, however, as to this class of publications, as to when published, in order that they may be privileged. In case the publication is only a qualified privilege, the "party defamed may recover, notwithstanding the privilege, if he can prove that the words used were not used in good faith, but that the party availed himself of the occasion willfully and knowingly for the purpose of defaming the plaintiff." Id. 475. But, from our standpoint, we think it unnecessary to decide whether the facts disclosed by the record bring the publication, because of its quasi judicial character, within that class called "privileged," or not, provided the communication was a qualified privilege. Byam v. Collins, 111 N. Y. 143, 19 N. E. 75, 2 L. R. A. 129, it is said: "A libelous communication is regarded as privileged, if made bona fide upon any subject-matter in which the party communicating has an interest, or

In

*

to a person having a corresponding interest or duty, although it contains criminating matter which without this privilege would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." In speaking of the proper meaning of privileged communications in Klinck v. Colby, 46 N. Y. 427, it is said: "The proper meaning of a privileged communication is said to be this: that the occasion on which it was made rebuts the inference arising prima facie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made. * But when the paper published is a privileged communication an additional burden of proof is put upon the plaintiff, and he must show the existence of express malice." It is announced in Marks v. Baker, 28 Minn. 162, 9 N. W. 678, that "the rule is that a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice * * is cast upon the person claiming to have been defamed." "Malice in such case is not shown by the mere fact of the falsity of the publication." Henry v. Moberly, 6 Ind. App. 490, 33 N. E. 981; Stewart v. Hall, 83 Ky. 375. In Briggs v. Garrett, 111 Pa. St. 404, 2 Atl. 513, it was held that a communication, to be privileged, must be made on a proper occasion, from a proper motive, and must be based upon reasonable or probable cause. When so made in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel. Actual malice must be proved before there can be a recovery, and in the absence of such proof a nonsuit should be granted. Section 8030, Rev. St. 1889, confers upon the school commissioner of each county the power, and imposes the duty, to examine all persons presenting themselves for teachers in the county of which he is commissioner, and, if found qualified, to grant them certificates as teachers of public schools within the county. It also provides that "such certificate may be revoked for incompetency, cruelty, immorality, drunkenness, or neglect of duty, when satisfactory proof thereof is furnished the commissioner, all charges to be preferred in writing and signed by the party or parties filing the accusation." At the time of the publication of the alleged libel, defendants composed the school board of the school district in which plaintiff was teaching. They knew that she had had trouble with her pupils, and a petition signed by 12 patrons of the school, com

On

plaining of her, had been presented to them, as a board, requesting them to ask her to resign. Complaints had also been made to the school superintendent, who in consequence thereof wrote to the board, asking about the trouble between plaintiff and her pupils. account of these facts the board called plaintiff before it and asked her to resign, but she declined to do so; and as a last resort they prepared, in substantially the words of the statute, the charges against her which form the basis of this litigation, and sent them to the commissioner. They not only had an interest in regard to the way in which the school was being conducted, but, in preferring the charges against the plaintiff, were simply discharging their duty as members of the school board; and it makes no difference that the exact words of the statute were not used, or that some word not embraced therein was used. The purpose and intent was the same. There was no actual malice proven, and the use of such word or words did not take away the privileged character of the communication. Intent makes the libel in such circumstances. The communication was made on a proper occasion, from a proper motive, and was based upon a reasonable cause. It was made in apparent good faith, and under these circumstances the law does not imply malice, and as there was no proof of express malice the plaintiff was not entitled to recover. The judgment is affirmed.

GANTT, P. J., and SHERWOOD, J., con

cur.

ST. LOUIS & M. R. R. CO. v. CITY OF KIRKWOCD.

(Supreme Court of Missouri.

STREET

Dec. 18, 1900.)

RAILROADS-FRANCHISES-CONTROL OF CITY-CARRIAGE OF FREIGHT-ORDINANCE-REASONABLENESS.

1. Const. 1875, art. 12, § 20, prohibits the construction and operation of a street railway within any city or town without the consent of the local authorities. A corporation was organized for the purpose of operating a railroad for the conveyance of passengers and property, as authorized by Rev. St. 1889, c. 42, art. 2, which also provided that it did not authorize the use of the streets of cities and towns without the consent of the local authorities. The corporation obtained a franchise from an incorporated town to construct and operate an electric road on its streets for the carriage of passengers. Thereafter the company commenced to operate freight cars on its line, and the city passed an ordinance making it a misdemeanor for any railroad corporation to operate cars not authorized by its franchise. Held, that the ordinance was not invalid, as prohibiting the carriage of freight by the company, on the ground that the condition of the franchise limiting it to the carriage of passengers was invalid, as a limitation of the powers conferred on the corporation by the state, since the town could place such conditions on the use of its streets as it deemed proper.

2. A city ordinance making it a misdemeanor for any corporation to operate any car on its lines which is not authorized by its franchise,

GANTT, C. J. This is a suit by the plaintiff to enjoin the city of Kirkwood and its officers from harassing it by a multiplicity of prosecutions for the violation of an ordinance of said city known as "Ordinance No. 31," which prohibits any corporation from running or operating any street-railroad car or cars upon or over any route in the city of Kirkwood not authorized by the franchise granted to said corporation by the town or city of Kirkwood, and making a violation thereof a misdemeanor punishable by a fine not less than $95 nor more than $100, or by imprisonment in the city prison for not less than two months nor more than three months, or by both such fine and imprisonment. The defendant city was duly served and answered, and upon trial in the circuit court of St. Louis county a perpetual injunction was granted, from which judgment the city has appealed to this court. The appeal is brought to this court because the constitutionality of the ordinance mentioned is challenged.

Plaintiff's petition charges that it is a railroad corporation duly organized and existing under and by virtue of the provisions of article 2 of chapter 42 of the Revised Statutes of Missouri of 1889, for the purpose of constructing, maintaining, and operating a railroad in the city and county of St. Louis for public use in the conveyance of persons and property from a point within the said city, thence in a general southwestwardly direction through or near the villages and towns of Old Orchard, Kirkwood, etc.; that it has constructed, and is now and for some time past has been operating, its said railroad; that a portion of its line of railroad lies within the limits of the city of Kirkwood; that it is authorized to convey persons and property over its said railroad, and to receive compensation therefor; that, before constructing its said railroad within limits of the said city of Kirkwood, it obtained the assent of said town to said construction. expressed by an ordinance of said town duly enacted May 21, 1897, and numbered 238. and thereafter amended by other ordinances of said city; that neither of said ordinances contains any provisions against the carrying of mails or express matter or light freights. or freights of any character; that plaintiff has never operated its said railroad within

the city of Kirkwood for any purpose other or different from the purpose for which it has operated its entire line of railroad, and has never transported on its cars any other or different kind of property than that transported by it throughout the entire length of its said railroad; that its said railroad is a post route, and it is engaged in carrying the United States mails thereon, and for some time past has been, from the city of St. Louis, and to and from the town of Kirkwood; that its said railroad is a public highway, and plaintiff a common carrier; that, at the time of the enactment of the ordinances assenting to the construction of plaintiff's railroad, the town of Kirkwood was organized under special acts of the legislature of the state of Missouri, in the petition referred to; that subsequently, and in 1899, said town became incorporated under the general laws of Missouri as a city of the fourth class; that thereafter, and on, to wit, the 20th day of November, 1899, the said defendant, arbitrarily and without any lawful authority so to do, and with the intent to harass and injure the plaintiff, and to interfere with the plaintiff in the lawful conduct of its business as a common carrier, and to deprive the plaintiff of the exercise and enjoyment of the franchises granted to it as aforesaid, passed a certain resolution, in said petition set out, requiring the plaintiff to cease running and operating over its road in the city of Kirkwood cars carrying freight, express, baggage, or mail, a copy of which said resolution was delivered to the plaintiff; that thereafter, for the purposes aforesaid, and on the 11th day of December, 1899, the said defendant enacted Ordinance No. 31, in said petition set out, whereby it is provided that "no corporation, company, copartnership, person or persons shall run, operate, use, or drive, or cause to be run, operated, used or driven, in the city of Kirkwood, Missouri, any street railroad car or cars, or other kind of railroad car or cars upon or over any route, or for any purpose or use whatever, not authorized by the franchise granted to said corporation, company, copartnership, person or persons by the town or city of Kirkwood, Missouri" (said ordinance provides a penalty for doing the prohibited acts), and that a copy of this ordinance was also delivered to defendant; that thereafter, and on the 19th and 22d days of December, 1899, the said defendant, still persevering in its said purposes aforesaid, caused to be filed with its police judge complaints against one Thomas M. Jenkins, the general manager of plaintiff, for violating said ordinance, upon which warrants were issued, and said Thomas M. Jenkins arrested and brought before the police judge of defendant to answer to said complaints, copies of which said complaints and warrants are set out in the petition; that, though requested, defendant refused to forego further prosecution of plaintiff's said general manager for violating said Ordinance

No. 31 until the validity of the same might be tested in the courts, but threatened to continue the same. Plaintiff's petition then proceeds to charge that, for a great number of reasons therein enumerated, said Ordinance No. 31 is null and void and of no effect, and concludes as follows: "That if the defendant is permitted to continue the prosecutions already commenced against the plaintiff as aforesaid, and is permitted to carry out its threats to institute similar prosecutions against plaintiff from time to time and from day to day, and is permitted to prevent plaintiff from the performance of its public duties as a common carrier, and to prevent the plaintiff from the exercise and enjoyment of its franchises as aforesaid, it will occasion the plaintiff great and irreparable damage for which the plaintiff has no adequate remedy at law." Wherefore the plaintiff prays the court to decree said Ordinance No. 31 "illegal, null, and void, as against the plaintiff," and in the meantime to enjoin the defendant, its officers and agents and servants, from further prosecuting the actions already commenced against plaintiff as aforesaid, and from instituting or causing to be instituted any further actions against plaintiff, its officers, agents, or servants, for alleged violations of said Ordinance No. 31, or in any way interfering with the plaintiff in the discharge of its duties as a common carrier or in the exercise or enjoyment of its said franchise aforesaid, and for such further and other relief as to the court shall seem meet. In pursuance to the prayer of plaintiff's petition the judge of the circuit court of St. Louis county on the 26th day of December, 1899, in vacation of said court, and at chambers, issued a temporary injunction or restraining order against defendant, its officers, agents, and servants, prohibiting them from doing the acts complained of. The answer of defendant to plaintiff's petition is a general denial. After filing said answer, defendant filed a motion to dissolve said temporary injunction as aforesaid issued against it, assigning as reasons therefor that plaintiff's petition does not state facts sufficient to constitute a cause of action, or which warrant any equitable or other relief, and because the facts stated in plaintiff's petition are untrue.

The facts developed by the evidence in this case are few, and in the main uncontradicted. They are substantially as follows:

On the 31st day of May, 1895, plaintiff was duly organized "under and by virtue of the provisions of article 2, c. 42, of the Revised Statutes of Missouri of 1889, for the purpose of constructing, maintaining, and operating a standard gauge railroad for public use in the conveyance of persons and property.” On the 21st day of May, 1897, the defendant, by ordinance duly enacted, granted to the plaintiff, its successors and assigns, a franchise "to construct, maintain and operate an electric railroad for the transportation of passengers, on, along, over and upon" certain

streets of defendant; this franchise to continue in full force and effect for a period of 50 years.

This ordinance was thereafter

twice amended during the year 1897, but these amendments are not material to the questions here presented for decision. After obtaining this franchise the plaintiff constructed along, across, over, and upon the streets of defendants, by the franchise authorized, an electric railroad. For a period

of some six months or more after the construction of its said railroad the plaintiff operated thereon only cars conveying passengers. Plaintiff then commenced to run and operate thereon a mail and freight car, which carries no passengers, but is wholly given up to a traffic in mail, express, baggage, and freight. This car is labeled "United States Mail Car," but is in fact engaged in the business aforesaid. The exclusive privilege of shipping freight, express, or baggage on this car is contracted to the Walton-Knost Express Company for a number of years, at a stipulated sum per annum. Plaintiff makes two trips per day with this car over its roads, stopping to load and unload the same at the corner of Adams and Clay avenues, within the limits of the defendant. The time consumed in loading and unloading this car is from 10 to 40 minutes, and at times it stands on the track when not thus engaged. While so engaged in loading and unloading, or standing on the track, this car obstructs the cross walks on Adams and Clay avenues, and withdraws for the time the one-half of these streets at this point from public use; and, when passenger cars pass it going east and south at this point, these streets are entirely withdrawn from public use by the cars of plaintiff. The defendant objected to this use of its streets and plaintiff's road, and on the 20th day of November, 1899, by resolution, called upon the plaintiff "to cease within ten days from the 22d day of November, A. D. 1899, the running and operating over its road, in this city, cars carrying freight, express, baggage, or mail." No heed was given this remonstrance of defendant by the plaintiff, and to prevent it or any other railroad from operating its road for a use or purpose not authorized by its franchise, and using the streets of defendant for a purpose not authorized by it, the defendant enacted Ordinance No. 31, copied in the record, whereby it is provided:

"Section 1. No corporation, company, copartnership, person or persons shall run, operate, use or drive, cause to be run, operated, used or driven in the city of Kirkwood, Missouri, any street railroad car or cars, or other kind of railroad car or cars, upon or over any route, or for any purpose or use whatever, not authorized by the franchise granted to said corporation, company, copartnership, person or persons by the town of Kirkwood, Missouri. And violations of the provisions of this section shall be deemed a misdemeanor, and upon conviction, the offender shall be

punished by a fine of not less than ninetyfive (95) dollars, nor more than one hundred (100) dollars, or by imprisonment in the city prison for not less than two months nor more than three months or by both such fine and imprisonment.

"Sec. 2. Any officer of any street railroad company or other railroad company, or person managing or operating the same, who shall run or operate the same or cause the same to be run or operated in a manner or for any use or purpose whatever prohibited by section 1 of this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than ninety-five (95) dollars, nor more than one hundred (100) dollars, or by imprisonment in the city prison for not less than two months nor more than three months or by both such fine and imprisonment."

On the 14th day of December, 1899, the defendant caused a copy of this ordinance to be delivered to the plaintiff. Its provisions were not minded by the plaintiff; and on the 19th and 22d days of December, 1899, to enforce obedience thereto, the defendant caused to be commenced against the general manager of the plaintiff suits numbered 7,601 and 7,602, the files in which cases were offered in evidence by plaintiff, and are copied into the record; whereupon, on the 26th day of December, 1899, plaintiff commenced this suit against defendant.

A correct understanding of the issues involved necessitates a statement of certain provisions of the constitution of Missouri and of our statutes in force when the plaintiff obtained permission to lay its tracks and operate its railroad in the streets of Kirkwood. Section 20 of article 12 of the constitution of Missouri of 1875 provides: "No law shall be passed by the general assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchise so granted shall not be transferred without similar assent first obtained." Section 2543 of the Revised Statutes of Missouri of 1889 (article 2, chapter 42) provides: "Nothing herein contained shall be construed to authorize the erection of any bridge or other obstruction across or over any stream navigated by steamboats at the place where any bridge or other obstruction may be proposed to be placed so as to prevent the navigation of such stream, nor to authorize the construction of any railroad not already located in, upon or across any street in a city or road of any county, without the assent of the corporate authorities of said city or the county court of said county." The plaintiff railroad company was organized under the provisions of article 2, c. 42, Rev. St. 1889, of which section 2543 constitutes a part. On the 21st of May, 1897, the plaintiff applied to the