Walker v. D'ALESANDRO

Brune, C. J., delivered the opinion of the Court. Glenn F. Walker, stated in the declaration to be “a painter and producer of fine works of art”, brought this action in tort against Thomas D’Alesandro, Jr., individually. The declaration contained four counts charging, respectively, (1) the wrongful removal of a picture belonging to the plaintiff from its assigned place in an art exhibit at the Peale Museum (sometimes known as the Municipal Museum) in the City of Baltimore, (2) interference with contractual relations between the ¹⁶⁷ plaintiff and the Trustees of the Museum pursuant to which the picture, painted by the plaintiff, was to have been shown as a part of the art exhibit for a period of three weeks, (3) slander and (4) libel. A claim for an injunction under Code (1951), Article 75, Section 136, was included in the declaration.

The defendant demurred to each count of the declaration and in response to an order to show cause why the claim for an injunction should not be granted, filed an answer setting up defenses to that claim raising questions of law and of fact. After a hearing the trial court sustained the demurrer without leave to amend and dismissed the claim for an injunction. Judgment for the defendant for costs was entered, and the plaintiff appeals from that judgment. In this Court he challenges the sustaining of the defendant’s demurrer, but not the dismissal of the claim for injunctive relief.

As above indicated, the case was and is submitted on the defendant’s demurrer to the plaintiff’s declaration. It is old and familiar law that the office of such a demurrer is to test the legal sufficiency of the facts alleged in the declaration to state a cause of action. A demurrer admits, for the purpose of determining that question, the truth of all well pleaded allegations of fact contained in the declaration, and it cannot either contradict facts so alleged or add others. Poe on Pleading (Tiffany’s Bd.), Sec. 705; Willoughby v. Trevisonno, 202 Md. 442 , 97 A. 2d 307 ; Adams v. Baltimore Transit Co., 203 Md. 295 , 100 A. 2d 781 ; De Boy v. Harris, 207 Md. 212 , 113 A. 2d 903 ; Martin G. Imbach, Inc. v. Deegan, 208 Md. 115 , 117 A. 2d 864 .

If there are facts as to which there is no genuine dispute which the defendant thinks entitle him to judgment as a matter of law, he may, under our modern practice, submit them by a motion for summary judgment supported by one or more affidavits; and if (after an answer or hearing, or both, or an opportunity therefor) the court is satisfied that there are facts as to which there is no genuine dispute, which show a good defense, a summary judgment may be entered for the defendant. (See Rule 610 of the Maryland Rules, effective January 1, 1957, and the General Rules of Practice and Procedure in force prior thereto and at the time of institution of this suit, Part Two, IV, Rules 1-4.) Disputed or controversial ¹⁶⁸ allegations of fact and denials of facts alleged by the plaintiff are, of course, properly raised by pleas for determination by trial on the merits. In the instant case the defendant’s demurrer sets forth, with regard to each of the four counts of the declaration, allegations of additional facts which are not to be found in the declaration and which undertake to set up affirmative defenses. To such extent as these asserted additional facts constitute matters of which the court may take judicial notice, such allegations are not open to more than technical objection, since the court may properly take such facts into consideration, regardless of what is said in the demurrer. 1 One paragraph containing allegations of facts additional to those shown by the declaration is to be found among the grounds urged in support of the demurrer as to each of the four counts.

(There are further additional, factual allegations in support of the demurrer to the defamation counts which will be mentioned later.) The paragraph common to the demurrer as to all four counts reads as follows: “That the alleged acts of the defendant were performed by him as Mayor of the City of Baltimore, and not as an individual, in which capacity he was being sued.” The declaration is silent with regard to the fact that the defendant is, and at the time of the alleged wrongs was, the Mayor of the City of Baltimore. The trial court took judicial notice of that fact, and in this we think there was no error. Lucas v. Boyd (Ala.), 47 So. 209 ; Cooper v. O’Connor (U. S. C. A., D. C.), 99 E. 2d 135 (cert. den. 305 U. S. 643 ); Wigmore, Evidence, 3rd Ed., Vol. 9, Secs. 2576, 2583; McCormick, Evidence, Sec. 328, pp. 703-704. We find no conflict with this view in Hopkins v. North, 151 Md. 553, 557 , 135 A. 367, 368 .

We think it is supported by the statement made in State v. Price, 12 Gill & J. 260, that “We know of no recognized presumption either of law or fact, that imputes to the Court an ignorance of a matter, like the present, of such notoriety as to be within the knowledge of the community at ¹⁶⁹ large.” See also Dean v. State, 205 Md. 274, 280-282 , 107 A. 2d 88, 90 , where we held that a judge in Baltimore City might take judicial notice of the fact that there were streets in that City bearing the names stated in an application for a search warrant. Although we agree that the trial court properly took judicial notice of the fact that Mr. D’Alesandro was the Mayor, we think that whether or not the court could take judicial notice that his actions alleged in the declaration were taken in his official capacity presents two quite different questions. One pertains to taking judicial notice of certain provisions of the Charter and Code of Baltimore City, the other to their sufficiency (if properly before the court) to show that the actions and words complained of were taken or uttered in the discharge of the defendant’s duties as Mayor or in matters so closely related to his official duties as to bring him within the protection of the absolute privilege which he claims and to which the trial court held him to be entitled. Underlying the latter of these questions is the question as to whether or not, as the trial court held, the office of Mayor of Baltimore City is an office to which an absolute privilege is extended.

The defendant claims, and the trial court held, that he was entitled to an absolute privilege with regard to actions or words involved in each of the four counts of the declaration. Privilege is not confined in the law of torts to matters of defamation (See Restatement, Torts, Vol. I, § 10; Prosser, Torts (2nd Ed.), § 16), though it has many applications in that particular field; and it may be either absolute or qualified. In this case the defendant has elected to demur to the declaration, and a defense based upon a qualified privilege is not available on demurrer.

Powell v. American Towing & Lighterage Co., 131 Md. 539 , 102 A. 747 ; Cobourn v. Moore, 158 Md. 358, at 367 , 148 A. 546, at 549 . The basis for immunity from liability by reason of privilege is that a public or social interest is to be served by according the privilege; and as Professor Prosser observes (op. cit. § 16), “The sliding scale by which the law balances the interests of the parties to accomplish a social purpose is nowhere better illustrated than in the field of privilege.” An absolute ¹⁷⁰ privilege is accorded to judicial proceedings and to legislative proceedings and to the activities of high executive officers. (As regards legislative matters, it is usually established under a constitutional provision.) As to executive officers, see Spalding v. Vilas, 161 U. S. 483 (U. S. Postmaster General) and Matson v. Margiotti, 371 Pa. 188 , 88 A. 2d 892 (State Attorney General). See also an elaborate Note on Defamation in 69 Harv.

L. Rev., beginning at page 875, dealing with absolute privilege and the basis therefor at pages 917-924 and with qualified privilege.at pages 924-931, and the Restatement, Torts, Vol. III, § 591. Much of the argument in this Court was devoted to the question of whether or not the Mayor of the City of Baltimore occupies such an office as is within the absolute privilege. We may assume, without deciding, that the privilege does apply, but that assumption does not dispose of the case.

The question still remains whether or not the words or actions complained of were said or taken in the discharge of the officer’s duty or in some matter closely connected therewith. In Spalding v. Vilas, supra, at 161 U. S. 498 , the Supreme Court said: “As in the case of a judicial officer, we recognize a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision.” A like rule is recognized in Matson v. Margiotti, supra, a 3-2 decision, in which a vigorous dissenting opinion written by Justice Jones and concurred in by Justice Chidsey was based upon the view that the Attorney General was acting outside the scope of his authority and hence was entitled to only a conditional privilege. See the comment on this case in the note in 69 Harv. L. Rev. above cited, at page 919.

In reaching the .conclusion that the defendant was entitled to an absolute privilege in respect of the acts and statements complained of, the trial court took judicial notice of certain provisions of the Charter of Baltimore City and of an ordinance of the Mayor and City Council of Baltimore. The Code provides for the methods of proof of such an ordinance, not that the court shall take judicial notice thereof; and the general ¹⁷¹ rule is that courts do not take judicial notice of such ordinances. Code (1951), Article 35, Section 75; Central Savings Bank v. Baltimore, 71 Md. 515 , 18 A. 809 , 20 A. 283 ; Givner v. Cohen, 208 Md. 23 , 116 A. 2d 357 , and cases therein cited. The rule is not inflexible, as the Givner Case and Shanfelter v. Baltimore, 80 Md. 483 , 31 A. 439 , and McNally v. Moser, 210 Md. 127 , 122 A. 2d 555 , show, where the ordinances have been considered below; and we shall comment upon the ordinance actually cited in the opinion of the trial court for much the same reasons that ordinances not duly proven were considered in those cases.

To sustain the applicability of the absolute privilege the defendant relies, as did the trial court, upon the grant of police power to the City under Section 6 (24) of the Charter, the powers conferred upon the Mayor by Section 10 of the Charter and the terms of the lease of the Peale (or Municipal) Museum embodied in and ratified by Ordinance 1273 of 1930-31 now codified as Article 2, Section 2 of the Baltimore City Code. We shall examine these briefly. All powers granted under Section 6 of the City Charter are granted subject to the provisions of the Constitution and Public General Laws of Maryland. Heubeck v. City of Baltimore, 205 Md. 203 , 107 A. 2d 99 .

Furthermore, those powers are granted to the municipal body corporate, the Mayor and City Council of Baltimore, not to any single officer thereof; and there is no claim or showing that any ordinance has been passed authorizing or purporting to authorize the Mayor to take the action complained of. Under Section 10 of the Charter two provisions are cited in support of the Mayor’s asserted power to act. One is that he “shall have all the power of a conservator of the peace”; the other is that he “shall have general supervision over all municipal officers and agencies.” We do not think that the powers of a conservator of the peace extend to the censorship of works of art or alleged works of art. In this State, various officers, including justices of the peace and judges, are among those invested with the powers of conservators of the peace.

So far as we are informed, none of them have ever been thought to possess powers of censorship. Censorship is, indeed, pro ¹⁷² vided for by statute in the case of motion pictures (Code (1951), as amended, Article 66A), but by a board especially created for that purpose. We must again bear in mind that the statements attributed to the defendant as to the obscene and morally objectionable character of the plaintiff’s picture are alleged in the declaration to be false and malicious and that the defendant’s demurrer (for present purposes) admits the truth of these allegations of falsity and malice. When we turn to the supervisory power of the Mayor over all municipal officers and agencies, there is nothing to show even that the Peale Museum is a municipal agency.

Indeed, the lease relied on by the defendant and embodied in Article 2, Section 2 of the City Code, seems to suggest the contrary. It provided (originally at least) for the election of the Mayor and two other City officials to the Museum Board of Trustees. Finally, the lease itself shows that the City is the landlord owning the Museum building, that it is to have access to the building “for general visitation and supervision” and “for the purpose of the performance of the duties devolved upon it by the Laws of the State of Maryland, or Ordinances of the City of Baltimore.” .It provides that “the police powers and supervision of * * * [the City] shall extend in, through and about said building.” No State law or City ordinance authorizing the exercise of powers of censorship by the Mayor and the removal of pictures which he may deem objectionable has been cited to us. On the facts as presently admitted by the demurrer, an unobjectionable picture has been removed.

That would obviously be beyond the duties of the Mayor; and even if the picture were objectionable, we do not regard the censorship by the Mayor of pictures publicly exhibited in a City-owned building and the removal of such as he may deem objectionable, or his making adverse public comments thereon, as being either within the scope of his duties as Mayor or so closely related thereto as to be entitled to an absolute privilege by reason of his important public office. This Court long ago expressed opposition to the extension of the doctrine of absolute-privilege (Maurice v. Worden, 54 Md. 233 ) to persons occupying offices not previously recognized as falling within the protection of absolute privilege. ¹⁷³ Though we are not deciding in this case whether or not the doctrine of absolute privilege should be extended to such an office as that of Mayor of a great city, we think that the same reasoning which underlies the reluctance to extend the offices to which the privilege applies, should also make us reluctant to stretch the field in which an absolute privilege may be invoked by adopting a very broad view of what may be deemed closely related to the general matters committed to the control or supervision of a public officer. It seems unnecessary to go into questions as to the constitutional limitations, State and Federal, with which an absolutely privileged power of censorship might conflict. We conclude that none of the acts complained of (including the statements alleged to have been made) are within the actual field of the defendant’s powers or duties as Mayor or so closely related thereto as to be entitled to an absolute privilege, assuming (but not holding) such privilege to be accorded to the holder of that office.

The defendant also alleged as a ground for the demurrer to the first and second counts — that no injury was alleged as a result of the acts alleged in those counts and hence that there was no cause of action. That objection was not pressed in this Court, and appears to have been abandoned. We now turn to the third and fourth counts. The third count charges that on November 10, 1955, the defendant “willfully, recklessly, wantonly, maliciously and falsely said in the hearing of divers people that a water-color painting entitled ‘In a Room’ composed and painted by the Plaintiff was ‘morally objectionable’, ‘obscene’, and ‘indecent’ and used other words charging and understood as charging that said painting was of a pornographic nature, * * This count further alleges as the innuendo that by these words the defendant charged that “the Plaintiff was a producer of a morally objectionable, obscene, indecent and a pornographic work of art or painting and that the Plaintiff was a man of bad moral character.” The plaintiff then alleges that for more than ten years he has been “a painter and producer of fine works of art” which he has offered and sold, and alleges that he is and from his youth has been of good reputation “for ¹⁷⁴ integrity and propriety of conduct,” that he has suffered in name and fame from the “false and malicious” words spoken by the defendant, “and has lost the good will and trade of many good and worthy persons with whom he otherwise may have had profitable business.” The fourth count is generally similar to the third.

It undertakes to charge libel, rather than slander, and complains particularly of the words “morally objectionable” and “debasing” which the defendant is alleged to have applied to the painting. We note that the count makes no direct charge of publication of the