Desmond v. Brown.

deny malice in speaking them, nor aver that defendant believed them true, etc. Doubtless the demurrer would have been well grounded at the common law; but under our statute (Rev., § 2929), "the defendant may allege both the truth of the matter charged as defamatory, and any mitigating circumstances sufficient in law to reduce the amount of damages; or he may allege either one of these without the other." It was therefore proper for the defendant to allege the mitigating circumstances without confessing the speaking of the words; nor was it necessary to deny malice or aver his belief in the truth of the words spoken. The demurrer also assigned the insufficiency of the mitigating circumstances pleaded; but it does not specify wherein, nor is it shown in the argument. It is not necessary for us to set out the various matters and review them, in order to show their sufficiency. We discover no error in overruling the demurrer. Kinyon v. Palmer, 18 Iowa, 377, and Beardsly v. Bridgman, 17 id. 290.

2.

tion of words

II. The petition charges the defendant with having said of the plaintiff that he was a thief, a robber, and a perjurer. construc- The answer, in its several counts in mitigation, charged. shows that the plaintiff and defendant were inhabitants of the same school district, and that, to secure a division of the district, the plaintiff and others had agreed to provide a school-house for the new district, to be created by the division, without any tax upon persons or property not within it; but that, after the division was secured, a tax was levied upon the property of defendant and others, outside the district, to build a school-house -the plaintiff being the assessor for the township. And the defendant avers that what he did say of plaintiff was said in reference to the conduct of plaintiff' respecting such division, tax and assessment.

The court instructed the jury, in substance, that if the defendant did not intend to charge the plaintiff with the

Desmond v. Brown.

punishable crime of larceny, robbery or perjury, but only to state a result of the plaintiff's conduct, etc., then the words were not slanderous, if the persons who heard them understood or knew that the words spoken had reference to such conduct, etc. This is assigned as error. The same general idea is embodied in several of the instructions. In our opinion the instructions were correct. They are in accord with the holding of this court in Barton v. Holmes, 16 Iowa, 252, and authorities there cited; McCaleb v. Smith, 22 id. 242. In view of these previous rulings, it becomes unnecessary to discuss the question further in this case.

3.

speaking

III. The main witness by whom the plaintiff sought to prove the speaking of the words, testified that she was in an adjoining room to the one the defendant of the words. came into, when she heard him say "there were no robbers allowed in his house;" that she did not see the plaintiff, and did not know to whom the defendant spoke, but he did not speak to her. The court instructed the jury, on defendant's motion, "that to constitute slander, the speaking must be in the presence and hearing of some person other than the plaintiff, who understood the words as slanderous," and on motion of plaintiff, the court instructed the jury that "if the slanderous words were spoken in the presence of a third person, that is a sufficient publication." The plaintiff now assigns the giving of the instruction, asked by defendant, as error. If it was intended to be asserted by this instruction that there must be a physical and visible presence at the time the words were uttered, we should be unwilling to affirm that doctrine. But such a construction is not the reasonable one to be put upon the language used. Indeed, there is no essential difference between the two instructions. The uttering of the slanderous words in the presence of a deaf person would not be sufficient to constitute slander. Nor would it constitute slander if the person to whom they were spoken had the faculty of hearing, but by reason of

Garfield v. Brayton.

the tumult or noise could not and did not hear them. The same would be true, if spoken in the visible presence of one who could not hear the words, because of the distance between him and the person speaking. From these illustrations it is apparent that the words should be spoken in the presence and hearing of the witness, that is, the witness should know or have the means of knowing who speaks, what he speaks, and of whom he speaks; presence and hearing imply these.

If the plaintiff had asked an instruction explaining fully to the jury the legal meaning of the word "presence," as applied to the circumstances of this case, and it had been refused, there might have been some ground for complaint. But we could not reverse, for the giving of the instruction complained of, without denying well-settled and elemental law.

These are substantially all the errors complained of. The verdict was not contrary to the evidence.

Affirmed.

GARFIELD V. BRAYTON.

Counties: ORGANIZATION OF: CONSTITUTIONAL LAW. Under section 2, article 11 of the new constitution, no new county can be organized which contains less than four hundred and thirty-two square miles, except the county of Worth, and the counties west of it along the northern boundary of the State. It is accordingly held, that chapter 192, Laws of the 13th General Assembly, creating the county of Crocker, is unconstitutional.

Appeal from Emmett Circuit Court.

MONDAY, DECEMBER 11.

THE plaintiff filed in the office of John P. Hawer, Esq., an acting justice of the peace in and for Crocker county, a

Garfield v. Brayton.

petition claiming of defendant $10 on account of labor performed.

The defendant demurred to the jurisdiction of the court over the person of defendant and the subject-matter of the action, upon the ground that Crocker county, in which the venue was laid, was organized under an unconstitutional law, being in contravention of the provisions of section 30, article 3, and of section 2, article 11 of the Constitution.

The demurrer was overruled, and judgment rendered for plaintiff. By agreement the cause was appealed to the circuit court of Emmett county, the appellee waiving all objection to the mode of presenting the questions assigned in the demurrer, and agreeing that Crocker county was organized under the provisions of chapter 192 of the laws of the thirteenth General Assembly, and that such fact appears on the face of the petition.

In the circuit court the demurrer was again overruled, and the judgment of the justice was affirmed. The defendant appeals. The further necessary facts are stated in the opinion.

J. D. Springer and Cowan for the appellant.

Nourse & Kauffman, with O'Connor, for the appellee.

DAY, Ch. J.-It is conceded that Crocker county has less than four hundred and thirty-two square miles of territory, and that the question of its constitutionality is involved in and properly presented by the record. Waiving, therefore, any consideration of the manner in which the subject comes before us, we proceed to the determination of the question, an early settlement of which is probably important to those interested in it. In 1851, the territory in question was constituted a county called "Bancroft," and the territory immediately south of it, including sixteen townships, was created into a county called "Kossuth." VOL. XXXIII.-2

Garfield v. Brayton.

At the same time "Humbolt" county was created, south of Kossuth, comprising sixteen townships. Ch. 9, Laws 1851, 28, 37 and 46. These counties remained unorganized. East of Bancroft were Winnebago and Worth counties, and west of it were Emmett, Dickinson, Osceola and Buncombe, now Lyon. In 1855, the counties of Kossuth, Bancroft, and the north half of Humbolt county, were united into one county called Kossuth, and the remainder of Humbolt county was attached to Webster. Ch. 141, Acts 1855. The territory continued unorganized, and for election, judicial and revenue purposes was attached to Webster county. Acts 1855, ch. 142. Chapter 147 of the Acts of 1857, re-created and organized the county of Humbolt, out of townships 91, 92 and 93 of ranges 27, 28, 29 and 30, leaving north of it Kossuth county, extending to the northern boundary of the State, and comprising six full and one fractional townships from north to south, and four full townships from east to west. While matters stood thus, the constitution of 1857 took effect. Section 2 of article 11 thereof is as follows: "No new county shall be hereafter created containing less than four hundred and thirty-two square miles; nor shall the territory of any organized county be reduced below that area; except the county of Worth, and the counties west of it, along the northern boundary of this State, may be organized without additional territory." The meaning of this provision is thus explained by a member of the committee who reported the clause to the constitutional convention: "The section, as it now stands, is the section in the old constitution upon this subject, with the addition of the proviso, which is rendered necessary from the fact that, upon a late survey of the boundary of this State upon the Minnesota line, it was found that the county of Worth and the counties west of it contain less territory than is required to make them constitutional counties. Hence the reason for offering this proviso, so that these counties might be organized with