jury. ate the defendant's denial of the seduction, or and the same ought to have been given to the do they go further, and defeat the plaintiff's right of recovery entirely, if the jury are satisfied that the female alleged to have been seduced was in the habit of seeking opportunities for criminal indulgence, not only with the defendant, but with various other persons, about the time of such alleged seduction? In other words, can a woman who engages in criminal indulgence with her male acquaintances, as opportunities present themselves, and who will make opportunities for that purpose, be said to be seduced, within the true intent and meaning of the statute? Is such a woman drawn aside from the path of virtue, and overreached by the artifice, deception and cunning of the seducer? Unless these questions can be answered in the affirmative, it is not perceived that she was "seduced.' To hold otherwise would be to break down all distinctions between the virtuous and vicious, and to place the common bawd on the same plane with the virtuous woman, whose life was pure and whose confidence had been betrayed by the heartless libertine. No. 1 was misleading, and properly refused, for the reason that it required the jury to find "that the plaintiff's daughter was at and prior to the alleged seduction a chaste female," etc. At some period of her life prior to the al leged seduction she may have been unchaste, and then reformed. But this instruction would allow no reformation. It has already been shown that this is not the law. 3. The defendant's counsel asked one other instruction, as follows: "The fact that the plaintiff's daughter was suffering at the time of her alleged seduction with a venereal disease, if you find such fact to exist, would, if not explained, in itself be sufficient evidence of unchastity to prevent a recovery in this action." This instruction was properly refused, for the reason that it invades the province of the jury. It is the right of the jury, and not the court, to determine the effect of evidence, unless in particular cases, where its effect is declared by the Code. Instruction No. 5, while it is subject to some It follows from what has been said that the verbal criticism, contained a correct legal prop-judgment must be reversed, and the cause reosition, as applied to the facts of this case, manded for a new trial. MINNESOTA SUPREME COURT. Dexter A. ALLEN, Appt., v. PIONEER PRESS CO., Respt. *1. The subject of chapter 191, General Laws 1887, entitled "An Act to Regulate Actions for Libel," is sufficiently expressed in its title. 2. The Act is not invalid as unequal or partial legislation because its provisions apply only to publishers of newspapers. 3. Laws public in their objects may be confined to a particular class of persons if they be general in their application equally to all of that class, and the distinction made between them and others is founded on some reason of public policy, and is not purely arbitrary. 4. Neither is the Act invalid on the ground that it deprives a person of “a certain remedy in the laws," for injuries or wrongs to his reputation, guarantied by section 78, article 1, of the Constitution of the State. (Dickinson, J., dissents from foregoing.) 5. Mere belief in the truth of the publication is not necessarily enough to constitute "good faith" on part of the publisher; there must have been an absence of negligence, as well as improper motives in making the publication. It must have been honestly made in the belief of its truth, and upon reasonable grounds for this belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances. 6. Good faith. Held, also, that upon the evidence in this case the question of good faith should have been submitted to the jury. (January 30, 1889.) *Head notes by MITCHELL, J. APPEAL by plaintiff, from an order of the District Court of Hennepin County, directing a verdict for defendant in an action to recover damages for the alleged publication of a libel. Reversed. The questions raised sufficiently appear in the opinion. Messrs. Miller & Young, for appellant: At common law we also have a right of civil action for damages for defamation of character; and if the purpose and effect of this statute is to take from us that right, the law cannot be upheld. See Com. v. Duane, 1 Binn. 601; Cooley, Const. Lim. §§ 420, 421, and cases cited; Cass v. N. O. Times, 27 La. Ann. 214. The court below had not the right to weigh the proven facts and say that there was good The presumption is that a publication libelous faith in the publication of the libelous article. per se is made voluntarily and with a malicious motive. Evening News A880. v. Tryon, 42 Mich. 549; Cass v. N. 0. Times, supra. Bad faith and malice may be shown by the character of the publication itself, and by all the circumstances. Hotchkiss v. Porter, 30 Conn. 414. By Lord Campbell's Act (6 and 7 Vict. chap. 96) it was provided that defendant might retract and apologize, or offer to do so; but even there "the sufficiency or insufficiency of the apology was peculiarly a question for the jury. Risk Allah Bey v. Johnstone, 18 L. T. Ñ. §. 620. "Where the only evidence sufficient upon an essential point is the testimony of the party in his own favor, or of a witness interested in his favor, it is error to refuse to submit the case to the jury," and "to constitute an interested wit | unconstitutional because its provisions are ness within this rule, it is not necessary that he limited to the publishers of newspapers. should have a legal interest in the result of the litigation." Kavanagh v. Wilson, 70 N. Y. 177, and cases cited; Wohlfahrt v. Beckert, 92 N. Y. 490, and cases cited. Messrs. Flandrau, Squires & Cutcheon, for respondent: The question of the adequacy or measure of the damages to be allowed is always within the control and discretion of the law-making power. 1 Sedgwick, Damages, 7th ed. pp. 2, 3; Cooley, Const. Lim. p. 349; Gen. Stat. 1878, chap. 75, §§ 45, 47, 50, 51. If then, this Act has provided the person libeled with a remedy, and the measure of his damages is solely within the legislative discretion, no constitutional provision has been violated, although the law in certain cases limits his right of recovery to special damages of certain kinds, and the law must stand. See Moore v. Stevenson, 27 Conn. 14, 25; Hotchkiss v. Porter, 30 Conn. 414, 419. At common law the rule was that where the occasion is such as repels the presumption of malice, and the plaintiff gives no evidence of malice, the court must direct a verdict for the defendant. See Taylor v. Hawkins, 16 Q. B. 308, 321. Mitchell, J., delivered the opinion of the court: The questions raised by this appeal involve: first, the validity, and second, the construction, of chapter 191, General Laws 1887, entitled "An Act to Regulate Actions for Libel."* The Act is claimed to be unconstitutional on three grounds: 1. The first is that the subject of the Act is not expressed in the title, as required by section 27, article 4, of the Constitution. This section has been before this court for construction in so many cases, beginning with Ramsey County v. Heenan, 2 Minn. 339 (Gil. 281), and ending with Minnesota Loan & Trust Company v. Beebe, 2 L. R. A. 418 (at the present term) that all that need be said on this point is that all the provisions of the Act relate and are germane to the subject expressed in the title, and proper to the full accomplishment of the object so indicated. State v. Kinsella, 14 Minn. 524 (Gil. 395); State v. Cassidy, 22 Minn. 322. 2. The second objection to the Act is that it is partial or class legislation, in that it gives to publishers of newspapers certain rights and immunities not given to other defendants in actions for libel. It does not follow that it is *The Act is as follows: Chapter 191.-An Act to Regulate Actions for Libel. Be it enacted by the Legislature of the State of Minnesota: Section 1.-Before any suit shall be brought for the publication of a libel in any newspaper in this State, the aggrieved party shall, at least three (3) days before filing or serving the complaint in such suit, serve notice on the publisher or publishers of said newspaper at their principal office of publication, specifying the statements in the said article which he or they allege to be false and defamatory, if it shall appear, on the trial of said action, that the said article was published in good faith, that its falsity was due to mistake or misapprehension of the facts, and that a full and fair retraction of any statement therein alleged to be erroneous was published in Laws public in their objects may be confined to a particular class of persons, if they be general in their application to the class to which they apply, provided the distinction is not arbitrary, but rests upon some reason of public policy growing out of the condition or business of such class. Such distinctions are being constantly made, as in the case of minors, married women, common carriers, railroad companies, and the like. This kind of legislation is not confined, as defendant seems to contend, to cases involving the exercise of what is termed the "police power" of the State. For example, it may be public policy to give to laborers a lien or other preference for the collection of their wages, not given to other creditors; or to give a lien to laborers in one business, while it would be neither practicable nor politic to give it to laborers in some other employment. So long as a law applies equally to all engaged in that kind of business, treating them all alike, subjecting them to the same restrictions, and giving them the same privileges under similar conditions, then it is public in its character, and not subject to the objection of being partial or unequal legislation, provided, of course, as already stated, the distinction made by it is based on some reason of policy, and is not purely arbitrary. Cooley, Const. Lim. 481 et seq. The Act under consideration applies alike to all publishers of newspapers. And in view of the nature of the business in which they are engaged, and the fact that newspapers are the channels to which the public look for general and important news, and that, even in the exercise of the greatest care and vigilance, and actuated by the best of motives, they are liable through honest and excusable mistake to publish what may afterwards prove to be false, we cannot say that it is either arbitrary or without reason of public policy to make such provisions as are made by this Act for the special protection of newspaper publishers when sued for libel. 3. The third, and by far the most serious, objection urged against this Act is that it conflicts with section 8, article 1, of the Constitution, which provides that "Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character. It is contended that the Act in question is unconstitutional for the reason that it deprives a person of an adequate remedy for injuries to his reputation, because in certain cases it limits the next regular issue of such newspaper, or within three (3) days after such mistake or misapprehension was brought to the knowledge of such publisher or publishers, in as conspicuous a place and type in such newspaper as was the article complained of as libelous, then the plaintiff in such case shall recover only actual damages: Provided, however. That the provisions of this Act shall not apply to the case of any libel against any candidate for public office in this State, unless the retraction of the charge is made editorially in a conspicuous manner at least three (3) days before the action. Sec. 2. The words "actual damage" in the foregoing section shall be construed to include all damages that the plaintiff may show he has suffered in respect to his property, business, trade, profession or occupation, and no other damages whatever. [Rep.] his right of recovery to special damages of cer- | cause it was really not in the case, inasmuch tain kinds, specified in the second section, and as the court held that the publication involved prohibits the recovery of general damages-a criminal charge, and hence was not within that is, damages to character or reputation- the operation of the statute. We are therefore which the law presumes, without proof, from compelled to consider the question mainly upthe mere fact of the falsity of the publication; on principle as res integra, which it certainly and hence, in such cases, if a person is unable is in this State. to prove any special or pecuniary damages, The guaranty of a certain remedy in the there could be no recovery at all. The ques-laws for all injuries to person, property or tion is not without difficulty, nor free from character, and other analogous provisions, such doubt. as those against exacting excessive bail, imposing excessive fines, inflicting cruel and inhuman punishments, and the like, inserted in our Bill of Rights, the equivalents of which are found in almost every Constitution in the United States, are but declaratory of general fundamental principles, founded in natural right and justice, and which would be equally the law of the land if not incorporated in the Constitution. This Act undoubtedly assumes to introduce an important and radical charge in the law of libel, and, as legislation of the kind is comparatively new, judicial precedents are almost wanting. The parent Act for the protection of newspaper publishers when sued for libel seems to be chapter 96 of 6 and 7 Vict., known as "Lord Campbell's Act." But this merely provided that the defendant might plead that the libel was published without actual malice, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he published in such newspaper a full apology, and that, at the same time he filed this plea, the defendant might pay into court a sum of money by way of amends for the injury. This plea was allowed in mitigation of damages, and the payment into court operated as a tender. In Connecticut, in 1855, an Act was passed which, although not so limited by its terms, was evidently designed for the protection of newspaper publishers, and which provided that "In every action for libel the defendant may give proof of intention; and unless the plaintiff shall prove malice in fact he shall recover nothing but his actual damages proved and specially alleged in the declaration." Although very different in form, it will be observed that, so far as the question now being considered is concerned, this statute is in effect much the same as ours, assuming that "actual damages," as defined in the second section, can be given a construction that will cover all special damages. This Act has been twice before the Supreme Court of Connecticut, first in Moore v. Stevenson, 27 Conn. 14, and next in Hotchkiss v. Porter, 30 Conn. 414. While in both cases the construction, rather than the constitutionality, of the Act seems to have been the question presented to the court, yet in passing upon the first they seem to have had the latter in mind, and succeeded in giving it a construction which in their opinion would be consistent with its validity. They seem to have had some difficulty in doing this, and it is very evident that the Act did not commend itself very strongly to the favor of the judicial mind. There is unquestionably a limit in these matters, beyond which, if the Legislature should go, the courts could and would declare their action invalid. But inside of that limit there is, and necessarily must be, a wide range left to the judgment and discretion of the Legislature, and within which the courts cannot set up their judgment against that of the legislative branch of the government. These constitutional declarations of general principles are not, and from the nature of the case cannot be, so certain and definite as to form rules for judicial decisions in all cases; but up to a certain point must be treated as guides to legisla tive judgment, rather than as absolute limitations of their power. And in determining whether in a given case a statute violates any of these fundamental principles incorporated in the Bill of Rights, it ought to be tested by the principles of natural justice, rather than by comparison with the rules of law, statute or common, previously in force. Again, it must be remembered that what constitutes "an adequate remedy" or "a certain remedy" is not determined by any inflexible rule found in the Constitution, but is subject to variation and modification, as the state of society changes; hence, a wide latitude must, of necessity, be given to the Legislature in determining both the form and the measure of the remedy for a wrong. Now, at common law the remedy allowed to a person injured by a libel was: first, special damages for every injury of a pecuniary nature resulting from the wrong, which he had to both plead and prove; and second, general damages; that is, damages to his standing and reputation, which the law presumed without proof from the fact of the publication of libel actionable per se. Moreover, malice was the gist of every Our Act was copied from an Act passed in action for libel; either malice in fact, consist Michigan in 1885, except that the latter ex- ing of improper and unjustifiable motives, or pressly excepted from its operation publications constructive malice, which the law presumed involving a criminal charge. This Act was without proof from the fact of the falsity of recently before the Supreme Court of that State the publication. Evidence of intention, that in the case of Park v. Detroit Free Press, 1 L. is, of the absence of malice in fact, was always R. A. 599, in which it was held unconstitu- admissible-where the communication waspriv tional on the very ground here urged by plaint- ileged, in justification, and where it was not iff. While the views of that learned court, privileged, in mitigation, of damages. A reand especially of the eminent jurist who wrote traction of the libel was also always admissible the opinion in that case, are entitled to very in mitigation. In effect, this statute but exgreat weight, yet we think they hardly have tends this rule of evidence so as to permit evithe authority of a decision of the question, be-dence of intention-good faith-coupled with a full retraction, not merely in mitigation of damages, but to prevent the recovery of general damages, as distinguished from special damages, for injuries of a pecuniary nature. Now, in an action for libel, the object, so far at least as general damages is concerned, is not merely to obtain redress in the shape of pecuniary compensation, which is frequently but a secondary consideration, but also-which is usually of much greater importance-of vindicating the plaintiff's character by openly challenging his accusers to proof of their assertions, and of establishing their falsity, if they be false. Now, as far as vindication of character or reputation is concerned, it stands to reason that a full and frank retraction of the false charge, especially if published as widely and substantially to the same readers as was the libel, is usually in fact a more complete redress than a judgment for damages. Indeed, where there has been perfect good faith, and an entire absence of improper motives, in the publication of a libel, and no special or pecuniary injury has resulted, an action for damages, brought after such a full and frank retraction and apology, is in a majority of cases purely speculative. nature which he may have sustained by the libel. Section 2, in defining "actual damages," limits them to damages in respect to property, business, trade, profession or occupation. It may be suggested that there may be some cases of pecuniary injury which this would not reach; but we are of opinion that by a liberal but allowable construction the definition referred to may be made to cover all cases of special damages; and, if so, we ought to adopt such construction, rather than hold the Act invalid. 4. The next question is whether upon the evidence the question should have been submitted to the jury whether "the article was published in good faith; that its falsity was due to mistake or misapprehension of the facts." This depends upon what is meant by the expression in good faith," as used in this connection. We may assume that the Act was designed to protect honest and careful newspaper publishers. It is not to be presumed that the Legislature intended to make so radical a change in the law of libel as to make mere belief in the truth of the article the test of good faith. If so, they have introduced a very dangerous principle, which virtually places the good name and reputation of the citizen at the mercy of the credulity or indifference of every reckless or negligent reporter. Good faith requires proper consideration for the character and reputation of the person whose character is likely to be injuriously affected by the publication. It requires of the publisher that he exercise the care and vigilance of a prudent and conscientious man, wield It may be said that a retraction is not a complete remedy for injury to reputation, because even retracted falsehood may be repeated without the retraction; but the same may be said of it even after the falsity of the charge is established by a judgment for damages. It is also true that a retraction is not the remedy in the law guaranteed by the Constitution; and, if the statute proposed to substitute it as a redress for pecuniary injuries, it could not be sus-ing, as he does, the great power of the public tained. But if there was an entire absence of either negligence or improper and unjustifiable motives, but, on the contrary, perfect good faith on part of the publisher of the libel, and if he has done all that can reasonably be done in redressing the wrong, so far as it has affected a party's character, by publishing a full retraction, what principle of reason or natural justice is violated by limiting the recovery of pecuniary damages to the pecuniary injuries which he has sustained? Or, if good faith can be shown in mitigation of damages, what constitutional provision is violated by permitting it to be proven in connection with a retraction, so as to prevent altogether the recovery of money damages for the presumed injuries to reputation which are not all pecuniary in their nature, and which have already been redressed, as far as they can be, by the retraction? A court ought not to declare invalid a solemn | act of a co-ordinate branch of the government, except in a very clear case; and after all the consideration that we are able to give to the subject we are unable to say that the Legislature has transcended its constitutional powers in imposing these restrictions and limitations upon the legal remedy of plaintiffs in actions for libel, or that by doing so they have deprived anyone of "a certain remedy in the laws for injuries or wrongs received by him in his person, property or character," within the meaning of the Constitution. We have assumed that under this Act a party is still allowed to recover pecuniary compensation for all injuries pecuniary in their press. There must be an absence, not only of all improper motives, but of negligence, on his part. It is his duty to take all reasonable precautions to verify the truth of the statement, and to prevent untrue and injurious publications against others. The extent and nature of these precautions will depend upon and vary with the circumstances of each case, such as the nature of the charge, the previous known character and standing of the person whom it affects, the extent to which the report has already gained circulation and publicity. If it is a piece of news in which the public may be presumed to have a lawful interest, good faith might permit a line of action which would not be permissible in the case of an item of mere scandal, of no legitimate interest to the public. If a publisher of a newspaper, for the sake of gratifying a depraved public taste, or for the sake of being considered newsy and "scooping" other newspapers, should recklessly or even negligently publish a piece of scandal about another, without taking such precautions to verify its truth as would be taken by a conscientious and prudent man under like circumstances, then he would not be acting in good faith, within the meaning of this statute, even although he may have a belief that the publication is true. Such conduct would not be a performance of his legal duty in guarding against wrongfully injuring the reputation of others. If, on the other hand, he take all such reasonable precautions, and has then a reasonable and well grounded belief in the truth of the statement, and then publishes it as a matter of news, and it nevertheless proves to be false, he acts "in good faith." This is what we think the statute means, and is all that any honest and fair minded newspaper publisher will demand. See Moore v. Stevenson, supra. In view of another trial of this action, it would be improper to discuss the evidence, or characterize the conduct of the reporter who transmitted this article to the defendant for publication. All that it is proper to say is that, applying the law, as we have construed it, to the evidence, we are of the opinion that the question of "good faith" in publishing the article should have been submitted to the jury. Order reversed. Dickinson, J., dissenting: I am unable to concur in that part of this opinion presented in the third division, holding that the statute is not in conflict with section 8 of article 1 of the Constitution. Gilfillan, Ch. J., being absent during the argument, took no part. PENNSYLVANIA SUPREME COURT. APPEAL OF Frank HAUPT et al. (....Pa.....) 1. A borough, under the Pennsylvania Act of April 3, 1851 (P. L. 320), has no power to carry any part of a water supply provided for the use of its inhabitants outside the borough for the inhabitants of another place or municipality. 2. Dwellers in towns and villages watered by a stream, as well as the riparian owners, may use the water, provided they have access to the stream by means of a public highway. 'Anyone may reasonably use water who has a right of access to it; but no one can set up a claim to any exclusive right to the flow of all the water in its natural state." Howard v. Ingersoll, 54 U. S. 13 How. 426 3. A water company organized under the Penn-|(14 L. ed. 189). See Chasemore v. Richards, 7 sylvania Act of 1874, for the alleged purpose of H. L. Cas. 349; Wilts & B. Canal Nav. Co. v. supplying a borough with water, has no right to Swindon Water Works Co. L. R. 9 Ch. App. apply the water to the use of another municipality or industries remote from that borough, as against riparian owners, or another borough which has lawfully acquired the right to use the water. (April 8, 1889.) APPEAL by defendants, from a decree of the Court of Common Pleas of Schuylkill County, enjoining them from obstructing the flow of water in the Little Mahanoy Creek and from taking the water therefrom. Affirmed. The facts are fully stated in the opinion. Mr. Fergus G. Farquhar, for appellants: The grantor of the land now owned by the Borough of Ashland could ask the intervention of a court of equity to restrain the taking of water out of the creek for the use of Frackville, upon the allegation that such a taking would work a substantial injury to his riparian rights. Phila. v. Spring Garden, 7 Pa. 348. The State cannot directly or indirectly deprive persons who have lawful access to a stream from using the water of it for their natural or domestic purposes. Phila. v. Collins, 68 Pa. 106; Phila. v. Spring Garden, supra. This right to use water running in streams is a common right by the law of nature; it cannot be granted; no prescription runs against it. Phila. v. Spring Garden, supra; Hoy v. Ster rett, 2 Watts, 327. This is a right which anyone, having lawful access to a stream, may exercise, without incurring any liability to another. Embrey v. Owen, 6 Exch. 353. NOTE.-See Land Log & L. Co. v. Brown, ante, 472. 451. The Borough of Ashland never complied with the provisions of the law permitting it to acquire a right to the water of the creek. Messrs. W. A. Marr and John W. Ryan, for appellee: In Wheatley v. Chrisman, 24 Pa. 298, and Pa. R. Co. v. Miller, 3 Cent. Rep. 126, 112 Pa. the doctrine that governs the rights of riparian 41, this court distinctly lays down and affirms owners and that those rights are measured by the size and capacity of the stream. A borough's authority to enter upon lands its inhabitants is based upon its necessities, the and appropriate streams of water for the use of common law and the Acts of Assembly under which it is chartered. Mun. Corp. § 55, p. 173; 2 Dillon, Mun. Corp. Purd. Dig. 204, pl. 67; 203, pl. 55; 1 Dillon, § 455, p. 533. Having exercised its rights as to a stream of water and appropriated the same to the use of its inhabitants, another party cannot subsequently divert the water of the stream to the injury of the party first appropriating the same. Angell, Watercourses, 7th ed. p. 219 etc. 181; 2 Bl. Com. p. 402; Kelly v. Natoma Water Co. 6 Cal. 105; Maeris v. Bicknell, 7 Cal. 261; Davis v. Gale, 32 Cal. 26; Lincoln v. Chadbourne, 56 Maine, 197; Samuels v. Blan chard, 25 Wis. 329: Gould v. Boston Duck Co. 13 Gray, 442: Washburn, Easements, 3d ed. PP. 292, 297, 278, 299, 300, 301. It is a familiar exercise of the power of a court of chancery to prevent by injunction injuries to watercourses by diversion or pollution. McCallum v. Germantown Water Co. 54 Pa. |