Werner v. Southern California Associated Newpapers

CARTER, J.

I dissent.

Prom the writings of the world’s wisest men we have the assurance “that a good name is rather to be chosen than great riches,” Proverbs XXII-.1; and

“Good name in man and woman, dear my lord,

Is the immediate jewel of their souls;

Who steals my purse steals trash; ’tis something, nothing;

’Twas mine, ’tis his, and has been slave to thousands;

But he that filches from me my good name,

Robs me of that which not enriches him,

And makes me poor indeed.”

(Shakespeare. Othello, Act III, Sc. 3)

But the thief can be forced to return my purse and its contents, pay all expenses incurred by me in pursuit of it, and even though he apologizes profusely, he can be sent to prison for committing the theft. Whereas a newspaper or radio station may wilfully and maliciously defame my reputation, hold me up to contempt, hatred, ridicule and obloquy, cause me to be shunned and avoided, and then by a mere retraction which may not be seen or heard of by more than one per cent of those who read or heard of the defamation, escape with the payment of such out-of-pocket loss as I may be able to prove to the satisfaction of a jury, but all others guilty of such defamation may be held liable for exemplary, as well as general and special damages. This is the effect of the majority holding in this case. To say that I can not agree with such sophistry is a gross understatement. I challenge its soundness from the standpoint of both reason and authority.

There is no doubt in my mind but that the statute here involved (Civ. Code, § 48a) is unconstitutional in that it traverses both the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. Criminals in California are treated with more uniformity and equality than an innocent plaintiff who has been defamed. The criminal law draws a distinction between a *138 defendant who has been guilty of a crime committed through negligence and one who has been guilty of a crime committed with malice. Although the above-mentioned section draws a very definite distinction between members of the same class, and to my mind an unreasonable and arbitrary one, it does not draw any distinction between those guilty of unintentional but negligent defamation and those guilty of wilful and malicious defamation.

Problems of classification under the California Constitution are similar to those presented by the federal equal protection of the law clause of the Fourteenth Amendment. Under either provision, the mere production of inequality which necessarily results to some degree in every selection of persons for regulation does not place the classification within the constitutional prohibition. The discrimination or inequality produced, in order to conflict with the constitutional provisions, must be “actually and palpably imreasonable and arbi trary.” (People v. Western Fruit Growers, 22 Cal.2d 494 [ 140 P.2d 13 ].) I submit that the legislation in question makes an actual, palpable, wholly unreasonable and arbitrary classification. Newspapers and radio broadcasts are singled out for the extension of a privilege which is not given to individuals, magazine publishers, or other periodicals, skywriters, sound trucks, banner-bearing dirigibles, and billboards, and probably television and motion picture producers. On the other side of the picture, plaintiffs maligned and defamed by those others are given rights and privileges not extended to plaintiffs who have suffered at the hands of newspapers or the radio.

The majority hold that there are two reasons why the classification made by the section is a reasonable one. The first of those reasons is that newspapers and radio stations must be protected against verdicts for excessive damages. Assuming there is any basis for the asserted danger of awards of excessive damages, just why those two should be protected against excessive damages any more than magazines, the motion picture industry, or the others above mentioned, is far from clear. All are equally able to carry insurance designed to give such protection.

Moreover, there is no factual or legal basis for the assumption that excessive awards of damages will be made against newspapers or radio stations in actions for defamation of character by individuals who claim to have been libeled or slandered by publications or broadcasts. The assertion in *139 the majority opinion that juries are disposed to make excessive awards of damages against newspapers and radio stations in actions of this character is not only an unjust reflection upon our jury system, but is factually and historically untrue. While the jury system still has its opponents, it cannot be denied that this system is so firmly embedded in our system of jurisprudence that the latter could not survive without it. It is nevertheless true that ever since the promulgation of the Magna Charta in the year 1215 to the present time there have been those who would destroy the jury system. These reactionary minds decry what they are pleased to refer to as the evils of the system, and extol none of its virtues. Thus, the tendency of juries to award damages to those who have suffered injury or wrong as the result of the wilful, malicious or negligent acts of others is condemned by these opponents of the jury system as an evil which should be abated. But should this reactionary philosophy be injected into our system of jurisprudence by permitting its use as a basis for the classification of tort feasors? The answer to this question should be obvious to every unprejudiced mind. If the jury system is to remain as it has stood for over seven centuries, then it should be just as good for the newspaper or radio tort feasor as any other, and its tendency to award damages, whether large or small, should not be made the basis of a classification which confers special privileges upon certain tort feasors to the detriment of those injured or defamed by them. History conclusively disproves the assertion in the majority opinion that excessive awards of damages have been rendered against newspapers and radio stations in libel and slander actions. Of the 55 libel cases against newspapers (there are none against radio stations) which have come before this court and the appellate courts of this state which I have been able to find reported during the state’s entire history, I find that 19 judgments for plaintiff were affirmed. These judgments are as follows: Wilson v. Fitch (1871), 41 Cal. 363 , $7,500; Edwards v. San Jose Pr. & Pub. Soc. (1893), 99 Cal. 431 [ 34 P. 128 , 37 Am.St.Rep. 70 ], amount of damages not specified; Gilman v. McClatchy (1896), 111 Cal. 606 [ 44 P. 241 ], $500; Taylor v. Hearst (1897), 118 Cal. 366 [ 50 P. 541 ], $500; Mize v. Hearst (1900), 130 Cal. 630 [ 63 P. 30 ], $6,250; Dunn v. Hearst (1903), 139 Cal. 239 [ 73 P. 138 ], $500; Graybill v. DeYoung (1903), 140 Cal. 323 [ 73 P. 1067 ], $1,000; Bohan v. Record Pub. Co. (1905), 1 Cal.App. 429 [ 82 P. 634 ], $500; *140 Tingley v. Times-Mirror Co. (1907), 151 Cal. 1 [ 89 P. 1097 ], $7,500; Ervin v. Record Pub. Co. (1908), 154 Cal. 79 [ 97 P. 21 , 18 L.R.A.N.S. 622 ], amount of damages not specified; Lewis v. Hayes (1918), 177 Cal. 587 [ 171 P. 293 ], $1,750; Waite v. San Fernando Pub. Co. (1918), 178 Cal. 303 [ 173 P. 591 ], $3,000; Scott v. Times-Mirror Co., (1919), 181 Cal. 345 [ 184 P. 672 , 12 A.L.R. 1007 ], $37,500; Newby v. Times-Mirror Co. (1920), 46 Cal.App. 110 [ 188 P. 1008 ], $7,500; Earl v. Times-Mirror Co. (1921), 185 Cal. 165 [ 196 P. 57 ], $25,000; Stevens v. Storke (1923), 191 Cal. 329 [ 216 P. 371 ], $1,000; Lyon v. Fairweather (1923), 63 Cal.App. 194 [ 218 P. 477 ], $750; Gloria v. A Colonia Portuguesa (1933), 128 Cal.App. 640 [ 18 P.2d 87 ], $21,000; Behrendt v. Times-Mirror Co. (1938), 30 Cal.App.2d 77 [ 88 P.2d 949 ], $10,000.

The foregoing record belies the assertion in the majority-opinion that there is “danger of excessive recoveries of general damages in libel actions” against newspapers. This record discloses that during the last hundred years only three judgments of over $20,000 were upheld by the appellate courts of this state, one for $10,000, and the remaining 15 for lesser amounts. True, there were other libel actions in which verdicts were recovered against newspapers, but either new trials were granted or the judgments rendered on such verdicts were reversed on appeal in those cases. To rely upon such a record to justify a preferential classification of newspapers because of the “danger of excessive recoveries of general damages in libel actions,” is like a drowning man grasping at a straw. The majority might, with equal logic hold that the Times-Mirror Company is entitled to a preferential classification because five of the above mentioned awards, and by far the largest, were against it. Furthermore, it might with equal justification be said that the Legislature could limit recovery to special damages in personal injury actions against railroads and power companies because of the tendency of juries to make large awards of general damages in personal injury actions against those corporations because of their reputed vast wealth. While a majority of this court might be disposed to uphold such a statute, I am disposed to believe that it would be stricken down by the Supreme Court of the United States as being in violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. I submit that the argument advanced in the majority opinion in support of its preferential classification of newspapers and radio stations on the above mentioned ground is *141 wholly unsound and utterly lacking in either factual or legal foundation.

The second so-called reason given in the majority opinion to prove that this legislation is not a travesty on the equal protection clause, but is a reasonable classification, is that newspapers must be free to disseminate news. There is a remote possibility that this reason might hold water if applied to inadvertent newspaper libel but it can hardly be called a good reason where the problem is one of malicious libel. In an article cited by the majority (Morris, Inadvertent Newspaper Libel and Retraction, 32 Ill.L.Rev. 36), it is pointed out that in at least 10 states (Alabama, Indiana, Kansas, Massachusetts, Michigan, Minnesota, North Carolina, North Dakota, Ohio, and Wisconsin), statutes purport.to lessen the severity of the common law in cases in which inadvertent newspaper libel is retracted. All of the statutes apply to libel published “in good faith,” leaving the rigors of the common law intact for the malicious libeler. He points out that “The statutes can be classified into two groups. In the first group the legislatures provided that plaintiff shall recover only actual damages, but did not define ‘actual damages.’ Courts have interpreted these statutes to mean that non-punitive damages shall be recovered—with the result that the common law is not changed. In the second group of statutes, the legislatures clearly indicated that they intended to eliminate general damages. In these jurisdictions, either the statutes have been held unconstitutional, or the scope of operation of the statute has been so limited that only trifling, if any, change is effected.

‘ ‘ The significance of the legislation is its aim, not its accomplishment . . . The statutes all suffer from a common defect. Bach legislature attempted to eliminate the recovery of general damages. Why ? I submit that the legislators were impressed with the exculpatory effect of retraction; they recognized the futility of attempting to vindicate the plaintiff by judgment after retraction, and the folly of taking money from newspapers to further that purpose. They then reasoned that since general damages operate to exculpate the plaintiff when the publisher has not retracted, and since the plaintiff has no need of exculpation after retraction which can be served by a money judgment, general damages should not be allowed when the publisher has retracted. The error in this reasoning lies in the fact that general damages are needed for purposes other than exculpation. The assessment of general damages solves an admonitory problem, which does not *142 disappear with retraction. So the abolition of general damages is not justified on the ground that the exculpatory function cannot be served by their retention. ’ ’ [Emphasis added.]

The legislation here involved is certainly discriminatory in that it protects certain members of a class to the detriment of others. The requirement of proof of special damages means virtual abolition of legal responsibility for both inadvertent and malicious libel. It is a very rare situation where a plaintiff can trace and prove the special damage he has suffered from libelous matter printed in a newspaper or spoken over the radio about him. This does not mean that he may not have suffered sharply—but it does mean that he may never hear of business opportunities which would have been his had the “libelous stain” not appeared on his name plate. Those who read the libel may not read the retraction and if he loses business or professional opportunities which would otherwise have been his (although he does not know of them, or cannot prove his actual pecuniary loss as to them), he should be compensated for the probable damage he has suffered and that which he will suffer in the future. Surely Mr. Morris is right when he says that “The tendency toward flamboyance and haste in modern journalism should be cheeked rather than countenanced.” The interest of the public in news cannot be said to outweigh the protection which every person is entitled to be given by the law to have his reputation remain unsmirched through malice or negligence. Under the holding in this ease, newspapers and radio may freely malign any person and be liable for only special damages if the plaintiff asks for and receives a retraction, or if he does not ask for one. This will in effect allow these two favored means of publication to escape, in most instances, scot free, since the plaintiff will not be able to prove the exact special pecuniary loss he has suffered.

In Osborn v. Leach, 135 N.C. 628 [ 47 S.E. 811 , 66 L.R.A. 648 ], the same type of statute was held not to be unconstitutional as a denial of due process of law since “actual” damages were held to include all save punitive damages. Mr. Justice Douglas, concurring, felt that the statute was unconstitutional as a denial of equal protection of the law. He said:“...I feel constrained to say that, in my opinion, the so-called libel act is unconstitutional, inasmuch as it discriminates between the editor of a newspaper and the ordinary citizen. If I write a letter libeling an editor, that perhaps, at most, 10 people may see, and he libels me by printing identical charges *143 against me that 10,000 people may see, I am subject to pains and penalties from which he is exempted by operation of the statute. Whatever other merits the act may have, I do not think that such discrimination can be sustained under the explicit provision of our Constitution ...”

In Park v. Detroit Free Press Co., 72 Mich. 560 [ 40 N.W. 731 , 1 L.R.A. 599 ], a statute such as ours was held unconstitutional as a violation of due process of law, and the court said that a person’s reputation was a species of property and that a retraction statute which left him with a remedy only when he could prove special damages was leaving him with no effective remedy inasmuch as special damages were impossible of proof in the majority of cases. The same result was reached in Hanson v. Krehbiel, 68 Kan. 670 [ 75 P. 1041 , 104 Am.St.Rep. 422 , 64 L.R.A. 790 ], In Meyerle v. Pioneer Pub. Co., 45 N.D. 568 [ 178 N.W. 792 ], the court held that the purpose of the statute was to give the publisher of a newspaper, “who through mistake or misapprehension in regard .to the facts, in good faith publishes a libelous article, an opportunity to retract and thereby, as far as possible, undo the wrong which he unintentionally did to the party libelled. ’ ’ It was held that the plaintiff, after retraction, could not recover exemplary damages, but would be entitled to recover such general or special damages as would compensate him for the injury which remained unsatisfied after the publication of the retraction.

• As an article in 23 So.Cal.L.Rev. 89 (1949) points out, “English and American courts have long recognized the admissibility of retractions to mitigate damages in libel actions. But every statute that has attempted to benefit publishers by substituting a retraction for plaintiff’s right to recover general damages in libel actions against newspapers has been challenged on constitutional grounds. Two were held unconstitutional as violative of due process and equal protection (Hanson v. Krehbiel, supra; Park v. Detroit Free Press Co., supra, approved in McGee v. Baumgartner, 121 Mich. 287 [ 80 N.W. 21, 22 ]); two were judicially rewritten to include general damages (Osborn v. Leach, supra; Meyerle v. Pioneer Pub. Co., supra), and only one was allowed to emerge completely unscathed.” The one which emerged “completely unscathed” is the Minnesota statute involved in Allen v. Pioneer-Press Co., 40 Minn. 117 [ 41 N.W. 936 , 12 Am.St.Rep. 707 , 3 L.R.A. 532 ], cited in the majority opinion. It must be noted that in the Allen case (decided by a divided court *144 and sent back for a new trial), the statute involved provided that the plaintiff could still recover general damages, even if the retraction were published, unless the defendant could show that the libelous publication was made in good faith and under a mistake as to the facts. This holding the majority opinion does not mention. It, therefore, appears that the holding of the majority in this case is in conflict with every decided case involving a similar statute.

Even if I assume that the majority is correct in stating that a cause of action for libel or slander was not frozen in our Constitution (“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; ...” [Art. I, § 9]), I maintain that the person injured by such libel or slander has a cause of action guaranteed to him by the due process clause of both Constitutions. (Cal. Const., art. I, § 13, and the Fourteenth Amendment to the Constitution of the United States-.) If the Legislature should abolish causes of action of replevin and conversion (trover) leaving me thus remediless for the loss of my car, I would consider that I was being deprived of my property without due process of law, and I consider the loss of reputation a valuable property right which cannot be taken from an individual without giving him a fully adequate legal remedy so that he may be compensated, so far as possible, for the loss he has suffered and which he will suffer from the wrong done him.

We may now assume that the Legislature (pushed by the powerful pressure groups which play such a shameful but important part in securing the adoption of special privilege legislation), having succeeded so well with its initial efforts (present statute held constitutional), may well decide next that all causes of action for libel and slander shall be abolished. In this connection, let me point out that the “guest” statutes and causes of action for alienation of affections and breach of promise to marry, etc., are not good illustrations of the power of the Legislature to abolish a cause of action for an injury. The guest does not have to ride in a car as a guest, and affection is an intangible attribute incapable of possession. From the beginning of time in this country it has been understood that marriage is a “commodity” that cannot be forced on men and women. An entirely different factual situation is presented where an innocent person is defamed, either negligently or maliciously, and suffers irreparable injury to his professional, occupational or business *145 reputation because of it. The least that can be done by the guilty one is to make such reparation in the form of money damages as will enable the maligned one to live until such time as he may again build up his reputation.

This court held that a trade-mark and a trade-name are worthy of protection because through them the owner or possessor creates and preserves a “favorable reputation/’ to stimulate the sale of a product, and to distinguish it from similar competing products. (Sun-Maid Raisin Growers v. Mosesian, 84 Cal.App. 485 [ 258 P. 630 ].) Injury to the standing and reputation of a business becomes an injury to the good will of the business, and infringement upon a trade-mark which results in injury to the good will of the business may be enjoined. (Hall v. Holstrom, 106 Cal.App. 563 [ 289 P. 668 ].) Words which are the subject of the good will and reputation of a business they designate, are entitled to the same protection as that afforded to one who has the prior right to a trade-mark, a symbol, character or words which have no common meaning and which are artificial. (Eastern Columbia, Inc. v. Waldman, 30 Cal.2d 268 [ 181 P.2d 865 ]; Barnes v. Cahill, 56 Cal.App.2d 780 [ 133 P.2d 433 ]; Hoyt Heater Co. v. Hoyt, 68 Cal.App.2d 523 [ 157 P.2d 657 ]; Jackman v. Mau, 78 Cal.App.2d 234 [ 177 P.2d 599 ]; Weatherford v. Eytchison, 90 Cal.App.2d 379 [ 202 P.2d 1040 ].) And why are damages given in such cases ? It is obvious that the reputation acquired by a business is in large measure responsible for the profits it makes. Why is a tremendous sum spent every year in advertising the good" reputation built up over the years in the manufacture of certain products? If this money is lost because business is lost because of the libel or slander published by a newspaper or broadcast over the air, has the one so advertising lost nothing in the nature of property? Any professional man’s income or profit depends on his reputation for honesty, integrity, fair dealing, ability and ethical practices, and he will suffer in the same indefinite, but nevertheless very substantial, way by its impairment or deprivation.

“There is no room for holding, in a constitutional system, that private reputation is any more subject to be removed by statute from full legal protection than life, liberty, or property. It is one of those rights necessary to human society that underlie the whole social scheme of civilization.” (Park v. Detroit Free Press Co., 72 Mich. 560 [ 40 N.W. 731 , 1 L.R.A. 599 ].) These damages (to a person’s reputation) are in the *146 nature of a property right; they have been said to constitute property. (See 17 C.J. 710, 829, 841. See Newell on Libel and Slander, p. 841; Pratt v. Pioneer Press Co., 35 Minn. 251 [ 28 N.W. 708 ]; Cruikshank.v. Bennett, 30 Misc. 232 [ 62 N.Y.S. 118 ]; Adams v. Scott, 33 S.D. 194 [ 145 N.W. 446 ]; 17 R.C.L. 430, 431; Osborn v. Leach, supra; Meyerle v. Pioneer Pub. Co., supra.)

When a cause of action arises it has a legal value as a chose in action—it is a species of property. Even where there is no legal measure of damages, as in case of slander or assault, the injured party has an indeterminate right to compensation the instant he receives the injury. The verdict of the jury and the judgment of the court thereon do not give, they only define, the right. Such right, when vested, is to the injured party, of the nature of property, and is protected, as property in tangible things, is protected. It cannot be annulled or changed by legislation, nor extinguished except by satisfaction, release or the operation of statutes of limitation. (1 Sutherland on Damages, § 7, p. 26.)

In holding a similar statute unconstitutional, as being in violation of the due process provision of the Fourteenth Amendment to the federal Constitution, the Supreme Court of Kansas said: “From the writings of the world’s wisest men we have the assurance 'that a good name is rather to be chosen that great riches.’ Yet the possessor of this thing of greatest value, being despoiled of it, is léft entirely without remedy for its loss by the statute in question, except in such rare cases as he shall be able to show some exact financial injury in the particulars named.” (Hanson v. Krehbiel, 68 Kan. 670 [ 75 P. 1041, 1042 , 104 Am.St.Rep. 422 , 64 L.R.A. 790 ].)

From the time of the Declaration of Independence the people of this country have declared that unalienable rights are “life, liberty, and the pursuit of happiness.” Both Constitutions (California and United States) declare that no person shall be deprived of any of these rights without due process of law. In order to preserve life, in most instances, it is necessary for men to work that they may provide for themselves and their families. No member of this court can deny that a good reputation is something to be highly prized and cherished. No member of this court can deny that one’s reputation has a great deal to do with the position one holds— whether it be public office, a profession, a business, an occupation, or the social position one holds in his community, his state, or his country. The section of the Civil Code under *147 consideration here evidently considers that a retraction published is a fair compensation for the inestimable, uncountable damage which newspapers and radio stations are capable of causing to an innocent person. A school teacher labeled, either negligently or maliciously, as a communist, may not lose her position, but she may lose an opportunity for advancement of which she will not be aware. A doctor, dentist, attorney, candidate for public office, an actor, actress, singer, businessman or woman—all of these may lose opportunities, clients, patients, positions, and business, because of the defamation. These lost opportunities will not, in the general course of events, come to the attention of the loser. He has suffered a loss for which the defamer should pay. The injured person is not compensated by a retraction which may not be read or heard by all who read or heard the defamatory words. We have all heard the expression used among our contemporaries that “where there is so much smoke there must be some fire.” Since this expression has survived from the days of the Greek philosophers (Euphues and his Euphoebus, Arber’s reprint, 1579) until the present, it would seem a fair assumption that people will go right on saying and believing it. This court, in holding this statute constitutional, is depriving the injured person of a property right. As was said in the Hanson case (supra) : “It is suggested, however, that the retraction required by the act to be published is a fair compensation for the injury done, and a reinvestment of the libeled one with his good name. This being done, all has been accomplished that would be by a verdict of a jury, and hence that the retraction required by the legislative enactment is, if not ‘due course of law, ’ an ample substitute for it. It is not an easy task to deduce either from reason or the authorities a satisfactory definition of ‘law of the land’ or ‘due course of law.’ We feel safe, however, from either standpoint, in saying these terms do not mean any act that the Legislature may have passed if such act does not give to one opportunity to be heard before being deprived of property, liberty, or reputation, or having been deprived of either does not afford a like opportunity of showing the extent of his injury, and give an adequate remedy to recover therefor. Whatever these terms may mean more than this, they do mean due and orderly procedure of courts in the ascertainment of damages for injury, to the end that the injured one ‘shall have remedy’—that is, proper and adequate remedy—thus to be ascertained. To refuse *148 hearing and remedy for injury after its infliction is small remove from infliction of penalty before and without hearing.”

The following statement in the majority opinion deserves some comment: “Moreover, in balancing the danger of recoveries of excessive general damages against leaving plaintiffs with no effective remedy for injury to their reputations, the Legislature could properly take into consideration the fact that a retraction widely circulated by a newspaper or radio station would have greater effectiveness than a retraction by an individual and could thus class newspapers and radio stations apart.” This argument is clearly and concisely answered by Professor G-. W. Patón (University of Melbourne, Australia) in his article “Reform and the English Law of Defamation,” (33 Ill.L.Rev. 669). Professor Patón states that the law of torts exists to grant a certain security to a person’s reputation, physical integrity and good, and, if that security be invaded, to award damages. The power of the press to destroy the reputation of an individual is so great that strict rules are necessary to secure a balance. He says that “It is true that there are speculative litigants whose one desire is to reap a golden recompense for some fancied slight: that sometimes a person, with no real reputation to lose, recovers damages based on the view that he had a reputation: very occasionally a newspaper has suffered because a fictitious name it has chosen fits someone in real life. All this is admitted, but the corollary of the great power of the modern press is a strict sense of responsibility for the reputation of those who lie at their mercy and, as it is Utopian to consider that such an attitude of mind can be induced save by the severest sanctions of the law, strict Viability is justifiable by its effect. It must be remembered that a newspaper has no professional privilege to traffic in the reputation of others.” [Emphasis added.] The last statement in the just quoted article is to be found in libel cases against newspapers decided in this state prior to the enactment of the legislation here considered. It should be noted that rather than imposing stricter liability upon newspapers and radio stations because of the great power they possess to ruin the reputation of others, either carelessly or maliciously, the section provides for a lesser liability! To illustrate the utter futility of a newspaper or radio retraction, consider the case of a candidate for public office who has been publicly and falsely accused a few days before election of having committed several crimes, of being a person of low character and of dishonest nature. He requests a retraction *149 which, if time permits, may be given before the election, or if time does not permit, after the election. He is not elected. He cannot prove that the libel caused him to lose the election although he and his advisors are certain it was the cause. Consider, too, that he has lost the election because untrue defamatory matter was widely published about him and that this may- have been done maliciously for that very purpose. Consider, too, that because of it, the possibility of a favorable outcome of any future election is very remote. Is this candidate for public office to have no restitution from the one guilty of the wrong? The majority opinion says “No.” I do not agree.

The majority state that “This court is not in a position to weigh the relative importance of the conflicting interests involved, and even if it were it should not attempt to do so.” It most assuredly is the duty of this court to scrutinize carefully any legislation in order to determine whether it is unreasonable or discriminatory. The people have the right to expect that the members of this court will possess the courage and integrity necessary to declare unconstitutional any legislation which contravenes the rights of the people as set forth in the due process and equal protection clauses of both Constitutions. This court should invoke these constitutional guarantees to protect the rights of those who are wronged by such legislation and should not be servile to any interest or influence regardless of the power it wields.

The majority opinion quotes from a dissenting opinion written by the late Justice Oliver Wendell Holmes in the case of Baldwin v. Missouri, 281 U.S. 586 [ 50 S.Ct. 436 , 74 L.Ed. 1056 ], in which he speaks of the tendency of the court to give over emphasis to the due process provision of the Fourteenth Amendment in striking down legislation. Mr. Justice Holmes was not there concerned with a statute conferring a special privilege upon a particular group such as we have here, but was concerned with a taxation matter. I have no doubt that the great liberal minded Mr. Justice Holmes, with his courage, wisdom and foresight, would be the first to speak out against special privilege legislation of this character in order that it might be struck down as violative of both the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

I have hereinbefore referred to pressure groups and their obvious effect upon legislation in this state. By this reference *150 I do not mean to cast the slightest reflection upon the members of the California Legislature, past or present. Both my son and I have served as members of this body, and I am in a position to know that, considering the great variety and the tremendous importance of the problems presented, the time available for their consideration and solution, and the pressure exerted by different groups seeking special privilege legislation, the members of the Legislature render a commendable public service and are entitled to the confidence, respect and commendation of the people of this state. But I am not so naive that I do not realize that they may yield to some of the pressure exerted, and with reference to the particular legislation here under consideration, that that pressure may have been of a most powerful nature. It is not unlikely that the constitutional prohibition against this legislation was considered by the Legislature and that that body concluded that this was a matter for the courts to determine. It is just as probable that the Legislature was not favored with the arguments here advanced against this legislation on constitutional grounds before adopting it. Since I feel so strongly that this statute violates the due process of law and equal protection provisions of both our state and federal Constitutions, I would be violating my solemn oath to support both of these Constitutions if I did not cast my vote as a member of this court to strike it down—and this I have done.

I would, therefore, reverse the judgment.