directly, to give a verdict, or that its verdict was given from corrupt favoritism or corrupt partiality, then they would be actionable, as imputing moral turpitude involving an offense for which the members of the jury might be indicted and punished. But we do not think the words spoken can be fairly construed into a charge that the jury was guilty of the offense described in this statute. The petition avers that the appellee meant to, and did, charge the plaintiff, as one of the jury, with the crime of perjury, and it is argued that the meaning of the words spoken was that the plaintiff and the other members of the jury had committed the crime of perjury by violating the oath they had taken to try the issues joined and a true verdict render, by returning a verdict that they knew to be wrong. But it does not aver that aplibelous per se.

McIntyre v. Bransford, 13 Ky. L. Rep. 454, 17 S. W. 359.

To charge that members of a jury have perjured themselves in rendering a certain verdict is libelous. Welch v. Tribune Pub. Co. 83 Mich. 661, 11 L.R.A. 233, 21 Am. St. Rep. 629, 47 N. W. 562.

was

pellee, by the use of the words spoken, intended to charge that the jury influenced by corrupt favoritism, or by corrupt partiality, to give the verdict, although it would seem to be a more reasonable inference from the words spoken that the speaker had in mind to charge the jury with corrupt favoritism or partiality rather than with the commission of the crime of perjury.

But, however this may be, the meaning of the words spoken cannot, of course, be enlarged by innuendo. Moore v. Johnson, 147 Ky. 584, 144 S. W. 765. The words are to be taken in their usual and ordinary acceptation, and, so treating them, we do not think they can be construed as either charging perjury or corrupt favoritism or corrupt partiality. If the jury returned a verdict they knew to be wrong, they, of misdemeanor. It has been recently held by this court (vide Smith v. Smith, 2 Sneed, 473), that word imputing a high misdemeanor, involving moral turpitude, and subjecting the party to an indictment, are in themselves actionable. But no authority has been adduced to establish that the failure or refusal of a grand juror to present an offense within his knowledge is an indictable offense."

-slander.

The decision in SMALLWOOD V. YORK, that to charge a juror with returning a verdict which he knew to be wrong is not slanderous per se, receives some support from the holding in McAnally v. Williams, 3 Sneed, 26, where applying the principle that words, to be actionable in themselves, must contain a distinct imputation of some crime or misdemeanor which, by law, is indictable, it was held not actionable to charge a grand juror with having forsworn himself in not having presented a criminal offense of which he had knowledge. The court said: "It is true that the oath of a grand juror imposes upon him an obligation to make presentment of all such criminal offenses within his knowledge as are cognizable by the court. The neglect or refusal to do so is highly immoral and censurable; but we are not aware of any principle or authority upon which it can be held to constitute legal perjury. The present action cannot, therefore, be maintained upon the assumption that the words import a charge of felony. Nor can we concur with the counsel for the defendant in error, that the action is maintainable upon the ground that the words impute a high

In an action for slander the complaint contained the following allegations: "That on the 6th day of October, A. D. 1903, at Minneapolis, Minnesota, the defendant, in a certain discourse which he then and there had with one Michael Breslauer, in the pres

ers, falsely and maliciously spoke and published of and concerning the plaintiff the false, malicious, and defamatory words following, to wit: 'Quist came to my office, shut the door, and came down with his hand, and said: "I have got the boys (meaning thereby certain persons, some of whom had been, and some of whom were at said time, members of the city council of the city of Minneapolis), and I want you to get me five thousand dollars ($5,000). You can get it from Cal. Goodrich and the Electric Light Company. I must have it, or I will fix them (said persons meaning)." And plaintiff alleges that in and by said false, malicious, and defamatory words defendant intended thereby to charge, and was understood to charge, this plaintiff with the crime of asking this defendant for a bribe of $5,000, with the understanding that, unless said sum of $5,000 was procured by defendant and paid over to plaintiff, he (plaintiff) would, as foreman of said grand jury, use his efforts to induce said grand jury to return indictments against said persons." Closing, the complaint alleges that the words spoken were false and defamatory, and prays for damages. The complaint was held to state a cause of action. Quist v. Küchei, 92 Minn. W. W. A. 160, 99 N. W. 642.

course, committed an offense against the administration of justice and did a wrong to the Allegheny Coke Company. But this wrong they might have done without being guilty of perjury or being influenced by corrupt favoritism or partiality for Massy. And so we think the words spoken are not actionable per se.

It is, however, insisted that, although the words may not be actionable per se, they are actionable because spoken of the appellant in respect to an office; and the attempt, therefore, is made to bring the words within the class that makes it actionable to impute unfitness to perform the duties of an office or employment. But we think the position of a juror is not an office or employment within the meaning of these words as employed in the quotation from Williams v. Riddle. The words, "employment, profession, or trade," mean some business, employment, profession, or trade in which the complaining party is engaged, and in the conduct of which he has sustained some injury on account of the slanderous words; and the word "office" means some public position with honors, emoluments, or profits, the enjoyment of which may be affected by the words, and a juror does not hold such an office as this. His duties are transitory and subject to be terminated at any time. He is merely selected out of the body of the people for the purpose of discharging, at the will of the court, responsible and honorable public duties that the state has a right to call upon its citizens to perform. He is for the time being an officer of the court, but holds no office or employment that could be affected in a pecuniary way by slanderous words. Townshend, Slander & Libel, pp. 287, 311; Newell, Slander & Libel, p. 168.

In Byers v. Martin, 2 Colo. 605, 25 Am. Rep. 755, the court held that an action for libel might be maintained by a juror against a newspaper that, in the course of an article commenting on a trial, said: "We are not a little surprised at Judge Wells' lenient charge in the case. We are still more so at the infamous verdict of this jury. We cannot express the contempt which should be felt for these twelve men, who have thus not only offended public opinion, but have done injustice to their own oaths," saying that the words were actionable under the statute defining libel, "as well as upon general principles, as words spoken of one in the execution of his office."

While not inclined to agree with the conclusion of the court that the words were

actionable because written of the juror in connection with his office, their actionable character might safely be put upon the

ground that they were libelous, as many words that would be sufficient to furnish the basis of an action for libel would not sustain an action for slander.

In Riley v. Lee, 88 Ky. 603, 21 Am. St. Rep. 358, 11 S. W. 713, the general rule upon the subject of libelous words is thus stated: "So it may be regarded as thoroughly settled that if the written or printed publication tends to degrade the person about whom it is written or printed, that is, if it tends to reduce his character or reputation in the estimation of his friends or acquaintances or the public, from a higher to a lower grade; or if it tends to disgrace him, that is, if it tends to deprive him of the favor and esteem of his friends or acquaintances or the public, or tends to render him odious, ridiculous, or contemptible in the estimation of his friends or acquaintances or the public,-it is per se actionable libel."

And so, if these words had been written and published concerning the jury, we think they would clearly be libelous on the complaint of any of the jury. But spoken

words are only actionable per se when "they clearly and unequivocally import that the person accused is guilty of some felony or other crime of such turpitude as to render him liable upon indictment to some infamous punishment." Moore v. Johnson, 147 Ky. 584, 144 S. W. 765. And, as we have seen, the words spoken do not come within the scope of this definition, and therefore cannot be made the basis of an action for slander.

The judgment is affirmed.

MISSISSIPPI SUPREME COURT.

TRUSTEES OF UNIVERSITY OF MISSISSIPPI, Appts.

V.

W. P. WAUGH.

(105 Miss. 623, 62 So. 827.)`

Schools right in legislature to prohibit fraternities.

1. A legislature which has power to create and abolish institutions of learning to be supported by the state has authority Note. - Forbidding student's affiliation with secret society.

This question was considered in Wayland v. School Directors, 7 L.R.A. (N.S.) 352, and note thereto.

There has been so much agitation in recent years against Greek letter fraternities, especially in the public schools, that boards of education in many cities have adopted rules and regulations with reference to

effect.

3. The question of the sufficiency of the title of a statute is for the legislature, and not for the courts, to determine. Constitutional law

departments of government excluding fraternities from schools. 4. The constitutional provision distributthem, and laws have been enacted in many states, either absolutely forbidding them, or placing them under control. Questions which may arise with reference to secret fraternities in schools and colleges are: (1) The power of educational institutions supported by the state to exclude pupils who are members of a fraternity or refuse to pledge themselves not to become members; (2) the power of educational institutions supported by the state to debar members of fraternities from participating in certain privileges; (3) the power of an incorporated college or university privately endowed to forbid students to join fraternities; (4) the constitutionality of statutes forbidding membership in fraternal societies connected with schools or colleges. The power of educational institutions supported by the state to exclude members of secret fraternities was denied in State ex rel. Stallard v. White, 82 Ind. 278, 42 Am. Rep. 496 (set out in the note to Wayland v. School Directory, 7 L.R.A. (N.S.) 352). This case distinguished People ex rel. Pratt v. Wheaton. College, infra, which upheld the validity of such action, as being a case involving an action by a privately endowed college.

On the other hand, the power of such institutions to debar members of secret fraternities from participating in special privileges was upheld in Wayland v. School Directors, 43 Wash. 441, 7 L.R.A. (N.S.) 352, 86 Pac. 642, as not being a denial of a natural right, or an unlawful discrimination against them. And to the same effect are Wilson v. Board of Education, 233 Ill. 464, 15 L.R.A. (N.S.) 1136, 84 N. E. 697, 13 Ann. Cas. 330, citing with approval the Wayland Case, supra, and Favorite v. Board of Education, 235 Ill. 314, 85 N. E. 402, which followed as authority, without discussion, the Wilson Case, supra.

And the power of an incorporated college privately endowed to forbid students to join secret fraternities was upheld in People ex rel. Pratt v. Wheaton College, 40

1

School prohibition of Greek letter interference with con

fraternities

stitutional rights.

5. No constitutional privileges or property rights are denied by making renunciation of allegiance to Greek letter fraternities a condition to becoming students in schools supported by the state.

State university - right to prohibit affiliation with Greek letter fraternities.

6. The trustees of a state university may, under legislative authority, prohibit persons desiring to become students in that institution from holding allegiance to any Greek letter fraternity wherever it may be located.

(July 14, 1913.)

Ill. 186 (cited in note in 7 L.R.A. (N.S.) 352).

The constitutionality of a statute forbidding the pupils of public schools to join secret fraternities connected with the schools was considered in Bradford v. Board of Education, 18 Cal. App. 19, 121 Pac. 929. This was an action to compel the reinstatement of a girl student in the high school, who was expelled because of membership in a Greek letter sorority. The expulsion was by virtue of the following statute:

"Section 1. From and after the passage of this act, it shall be unlawful for any pupil, enrolled as such in any elementary or secondary school of this state, to join or become a member of any secret fraternity, sorority, or club, wholly or partly formed from the membership of pupils attending such public schools, or to take part in the organization or formation of any such fraternity, sorority, or secret club; provided that nothing in this section shall be construed to prevent anyone subject to the provisions of the section from joining the order of the Native Sons of the Golden West, Native Daughters of the Golden West, Foresters of America, or other kindred organizations not directly associated with the public schools of the state.

"Section 2. Boards of school trustees and boards of education shall have full power and authority to enforce the provisions of this act, and to make and enforce all rules and regulations needful for the government and discipline of the schools under their charge. They are hereby required to enforce the provisions of this act by suspending, or, if necessary, expelling a pupil in any elementary or secondary school who refuses or neglects to obey any or all such rules and regulations."

It was contended that the above statute was unconstitutional for the reasons, first, that it contravened the section of the Constitution providing that no citizen or class of citizens shall be granted privileges or immunities which, upon the same terms,

A

The facts are stated in the opinion. Mr. William C. McLean for appellants. Messrs. A. F. Fox and W. G. Cavett for appellee.

of decision we deem it unnecessary to set out the act in full. We shall content ourselves with setting out in this opinion only the particular sections of the act which are involved in this controversy. These sections are 1, 2, 3, and 4.

By § 1, it is provided that the fraternities and sororities, or Greek letter societies

The legislature of 1912 passed an act entitled "An Act to Abolish and Prohibit Greek Letter Fraternities and Sororities and All Secret Orders among Students in the University of Mississippi and in All Other Educational Institutions Supported, in Whole or in Part, by the State, Providing Penalties for Any Trustee, Teacher, or Other Officer Connected with the Institution for Failure or Refusal to Enforce the Provisions of This Act, Providing Penalty shall not be granted to all citizens; second, that it contravened the provision of the Constitution providing that the legislature shall not pass local or special laws granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity; third, that it did not conform to the section of the Constitution which provides that every act shall embrace but one subject, which shall be expressed in its title; and, fourth, that it was repugnant to the 14th Amendment of the Federal Constitution because it deprived a citizen of the right to attend a public school of the state. And in denying the first contention, the court stated: "It is argued by counsel that this contravention of constitutional provisions arises because the act grants an immunity to certain pupils in the public schools of the state, viz., those in the normal schools, in that only the elementary and secondary schools come within the provisions of the act; that it grants a special privilege to such pupils by allowing them to join fraternities, sororities, and secret clubs, while other students in the public schools are punished for doing the same thing; that it grants a privilege and immunity to certain fraternities, viz., the order of the Native Sons of the Golden West, the Native Daughters of the Golden West, the Foresters of America, and other kindred organizations not directly associated with the public schools, because pupils in said schools may join such societies, and not come within the inhibition of the act. 1. It is quite apparent to us that the younger and more immature pupils of the public schools may quite properly form a class and be made the subject of this character of legislation. Normal schools and colleges are attended by students who are preparing for the serious affairs of life; and, being older in years

And

all other secret orders, chapters, fraternities, sororities, societies, and organizations, of whatever name, or without a name, of similar name and purpose, among students are hereby abolished, and further prohibited to exist in the University of Mississippi and in all other educational institutions supported, in whole or in part, by the state. Section 2 provides that no student in the university, or in any other educational institution supported, in whole or in part, by the state, who is a member and with wider experience, are better fortified to withstand any possible hurtful influence attendant upon membership in secret societies and clubs, than the younger pupils attending elementary and secondary schools, who are less experienced and more impressionable. We have no doubt that there is a sufficient difference between these last-mentioned schools and the normal to constitute a proper basis for classification, and that the statute applies equally to all of the particular class mentioned." so, also, in denying the second contention, the court said: "Neither does the exception in the statute of the order of the Native Sons of the Golden West and similar fraternal societies constitute, in our opinion, an invalid discrimination. The act itself requires that they be not 'directly associated with the public schools of the state.' It is clear that the legislature intended to discountenance only secret societies in the elementary and secondary schools which are formed almost entirely of the pupils of such schools, and which, in the opinion of the legislature, were calculated to diminish the efficiency of the educational system of the state, and exert a harmful influence upon the younger pupils of its schools as such. No such deleterious effect has been or could be attributed to the occasional membership of such pupils in the fraternal orders excepted in the statute, and such exception, therefore, cannot be said to be arbitrary or invalid." And in denying the third contention the court said: "It will be observed that the title of the act states that it is an act to prohibit the formation and existence of 'secret, oath-bound fraternities in the public schools,' while the body of the act forbids the formation and existence of 'secret fraternities, sororities, or clubs.' Basing her argument upon this difference of language,