author: Cooley J. Campbell J.

text:
    Robert P. Sinclair v. Dennis Murphy.

      Estoppel by contract. Where a party received money of a person who was in the lawful possession thereof, and interested therein, and expressly agreed to deposit it to his credit, he is estopped by his contract, in a suit for its recovery brought by said person, from setting up the rights of any third person, or raising any question of partnership.

      Charge of Court, when not cause for reversing judgment. When the charge of the Court had no relevancy to the case, or could in no way prejudice the rights of a defendant, judgment will not be reversed, whether the charge was erroneous or not.

      Heard April 7th.

      Decided July 11th.

    Error to Kent Circuit.

      The facts are stated in the opinion. Judgment was rendered in favor of the plaintiff for $2003.58.

      George Gray, for plaintiff in error.
    1. A dormant partner is he whose name and transactions as a partner are professedly concealed from the world. Samuel Sinclair was not a dormant partner. His absence from the place of business of the firm did not make him one. The question whether a member of a firm is an ostensible, or a secret, a dormant, or a nominal partner, is determined by the contract of partnership, or agreement, as existing between the partners themselves.— Collyer on Part. p. 3; 6 Mich. 300.
    2. Even if Samuel Sinclair could be considered a dormant partner, yet if he were privy to the transaction, or known to the parties therein, he must be joined as plaintiff. — 1 Chitty on Pl. 13; 6 Pick. 352; 3 Cow. 85; 4 Wend. 628.
    3. The $1,100.00 was actually deposited with the factors of the firm in Cincinnati, to pay the debts of the concern. This was clearly within the powers and duty of the plaintiff in error as agent of Samuel Sinclair.
    It will not be denied but that if Samuel Sinclair was a member of the firm, owning said money jointly with the defendant in error, as co-partner, and if the money had been placed in his hands, as stated, he, Samuel, would have an unquestionable right to do with it as was done. It follows that the plaintiff in error, acting as agent for Samuel, could do the same; because the act of the agent is that of the principal, and the agent can lawfully do, within the scope of his agency, whatever the principal may. — Dunlap’s, Palsy’s, Agency, 1; 16 Johns. 86.
    4. The fact of partnership was one that should have been left with the jury to determine from the evidence, and the court erred in not giving the instructions asked for. .

      D. B. Duffield and C. I. Walker, for defendant in error.
    1. Samuel Sinclair was but a dormant partner, and, therefore, it was not necessary that he should join in the suit. Indeed, some of the early decisions hold that a dormant partner cannot be joined. — Taunt. 324; 2 Esp. 468; 4 Wend. 628.
    2. But the settled law now is that he may or may not join, at the option of the plaintiff. — Story Part. § 241; Collyer Part. § 660-61 ; Lindley Part. 338, 389; 1 Chitty Pl. 12; 36 Penn. 293; 3 Cow. 84; 5 Id. 534; 8 Cush. 406.
    3. Dormant partners are those whose names are not laiown in the firm, or who do not appear as partners; but whether they are known to be partners or not, is quite immaterial, especially where the defendant has dealt with the ostensible partner only. — Story Part. § 80; Collyer Part. § 4; 3 Kent's Com. 31; 11 Ala. 603; 2 H. & Gill, 159; 5 Vt. 116; 5 Mason, 186.
    4. Tñe defendant received the money sued for from the plaintiff, and still retains it after demand.
    In relation to the right of the plaintiff to recover, the testimony tends to prove but two hypotheses:

      a. That Samuel Sinclair was not a partner with the plaintiff in the sutlership after the 26th day of April, 1862, and that consequently the money belonged to him individually.

      b. That after that date Samuel Sinclair still continued his interest in the business, but was a dormant partner, taking no part in it, and his name not known therein. The money, in guch case, belonged to the firm.
    In either case the plaintiff was entitled to recover, in the first, as sole owner; in the second, as ostensible partner.
    As between him and his partner, his rights would be the same in either case. He suffers no wrong if the plaintiff succeeds, for the jdaintiff must account with him.
    But the question cannot be raised by the defendant.
   Cooley J.

From the record it appears that Murphy sought to recover against Sinclair, in the Court below, for certain moneys which the latter had received from him and failed to dispose of according to the understanding between them. It appeared that the plaintiff (below) and Samuel Sinclair, a brother of the defendant, had been in partnership as sutlers to the fourteenth regiment of Michigan Infantry, of which the defendant was Colonel; that in April, 1862, when the regiment was in Tennessee, Samuel Sinclair left for Ms home in Michigan, and did not afterwards return, and the plaintiff thereafter carried on the business in his own name, claiming to have bought out Samuel Sinclair’s interest; that in August, 1862, plaintiff was sick and in the hospital at Tuscumbia, Alabama, and one Walsh had charge of the business as clerk; that defendant applied to Walsh to have the moneys then on hand, and in possession of plaintiff, delivered to him that he might send it to Cincinnati for safe keeping; representing that it was not safe to keep it where it then was; that defendant and Walsh went together to the hospital, where similar representations were made to the plaintiff, — the defendant stating that it would probably be some weeks before the plaintiff would be able to attend to business; that plaintiff, at the solicitation of defendant, consented that fl^OO should be deposited with defendant, to be sent to Cincinnati, and to be there subject to plaintiff’s order; that Walsh delivered defendant that amount accordingly, and that defendant, when subsequently inquired of whether he had made the deposit as agreed, claimed the money as his own. Other small sums of money were also deposited by Walsh with defendant, which he refused to repay.

The defendant introduced evidence tending to show that plaintiff and Samuel Sinclair had never dissolved partnership, and that the latter had not consented to the change by which the business was being conducted in the name of the plaintiff alone. Also, that Samuel Sinclair had requested him to look after said Samuel’s interest in said sutler’s business, and see that it was taken care of, and that the moneys so received by defendant belonged to said business.

On this evidence the defendant asked of the Circuit Judge various charges as to who were to he considered dormant, and who ostensible partners; and as to the necessity of all partners uniting in bringing suit in respect to the joint business; and the errors assigned in the case, with one exception, arise upon the charges made by the Circuit Judge upon these points.

We do not see how the question of partnership can be open to defendant, on the case appearing here. The fact that the plaintiff was carrying on the business in his own name, was not disputed, nor was it denied that defendant received the moneys from him on the distinct understanding that they should be placed to the plaintiff’s credit. The dealing of the defendant was not with any partnership, but with the plaintiff as an individual; and having agreed to account for the moneys to the jfiaintiff, he cannot be permitted to retain them in violation of this understanding, while the plaintiff -litigates with him the right of some third person to an interest therein, — a right in which the defendant is in no way concerned. Whether Samuel Sinclair still continued a partner or not, would be immaterial in any controversy between the plaintiff and mere wrong-doers; for having the rightful possession of the property as well as an interest in it, he would be entitled to maintain his possession against any one asserting no right in himself; and there can be no doubt that this jtossession and interest would be ample consideration to support the promise of any one who, on receiving any of the property from him, should promise to return it. Defendant does.not claim to have acted on behalf of Samuel Sinclair in obtaining this money; nor does his testimony show that his agency would have warranted any interference in the business. As to the dealings between the plaintiff and Samuel Sinclair, the defendant was, in law, a stranger; and he has no right to draw them into controversy for the purpose of defense to his own contract. And there was some evidence tending to show that this defense was entirely an afterthought; his first claim being that "the money was his own. But if he intended to set up any such claim when he obtained the money, we think he is as much estopped by his representations and promises from doing so, as the receiptor of property levied upon is estopped from setting up a claim to it in opposition to his receipt.

We do not think the charges of the Circuit Judge had any relevancy to the case, or could in any way have prejudiced the defendant; and whether erroneous or not, the judgment should not be reversed for the errors assigned.—Clark v. Moore, 3 Mich. 55 ; Cummings v. Stone, 13 Id. 70.

The Judge was also asked to charge the jury that, if the moneys deposited in the hands of the defendant belonged to Samuel Sinclair and the plaintiff, as partners, and that defendant was agent of Samuel Sinclair, the defendant could lawfully do with the money, as such agent, whatever Samuel Sinclair could do. To make this request relevant, the defendant should have put in evidence tending to show his agency; but as nothing of the kind appears, and he did not assume in any way to be acting as agent when he obtained the money, or when 'he refused to account for it, we think the Judge should have declined to give any instruction upon the point.

The judgment of the Court below should be affirmed, with costs.

Christiancy J. and Martin Ch. J. concurred.

Campbell J.

I think there was testimony enough in the case to make the various charges and refusals to charge complained of pertinent. There was no dispute about the original existence of a partnership between Murphy and Samuel Sinclair, which must therefore be presumed to exist until dissolved. There was no dispute but that the money received by Robert P. Sinclair belonged to the business.of the partnership, if any such partnership existed at the time. Whether the firm continued, was, upon the evidence, an open question for the jury. There was evidence, which they might have been disposed to credit, that R. P. Sinclair was authorized to act for his brother, and was looking after his interests, and it was a question for the jury whether Samuel Sinclair knew that his name had been dropped by Murphy, in continuing- the business. If such a partnership continued, and money was put into R. P. Sinclair’s hands, under the circumstances alleged in the bill of exceptions, I think he would not be responsible for it to Muiq)ky alone; but that he would be liable to the firm. It cannot be seriously contended that the charges given were correct as legal propositions ; and, as they seem to me not foreign to the case, I think the judgment should be reversed, and the case remanded for a new trial.


source: Caselaw Access Project

author: Christiancy J.

license: Public Domain

text:
    Christian H. Buhl v. Township Board of Springwells.

      Construction of statute. Tlie act of Marcli 31,1865, entitled “ An act to authorize certain townships in the State of Michigan to raise money by tax, to refund advances made for bounty purposes,” applies only to the two townships, — Nankin in Wayne County, and Delta in Baton County, — named in the first section.
    The first section of the act expressly authorizes the two townships named to vote by ballot on the question of raising money for the purposes specified. The* second section provides that “it shall be the duty of the township board of any township of said counties, which shall have voted in favor of allowing and paying the claims mentioned in the preceding section,” &c., and specifies the kind of claims to be audited, and the assessment of a tax for their payment. The language incidentally used in this section, and which apparently applies to all townships of said counties, is not to be construed as conferring the powers therein specified upon any other townships than the two named in the first section. The whole act is to be construed together.

      Heard July 6th and 7th.

      Decided July 11th.

    Appeal from Wayne Circuit, in Chancery.
    This was a bill to quiet title. The facts are as follows :
    Certain persons in the township of Springwells, Wayne County, during the year 1864, paid money for various purposes to fill the quota of soldiers to be raised in that town. The money was paid for substitutes, recruits, &c., as each person saw fit, to avoid a draft, and without any pledge or promise of any kind for repayment.
    An act was passed and approved March 21, 1865, (Session Laws, 1865, p. 686,) specially authorizing the electors ofDelta and Nankin to vote and raise money so advanced or paid, by tax on the real and personal property in those townships. The first section of the act names the said two towns, and is confined to them: — the second section authorizes “ the Township Board of any township of said counties which shall have voted,” &c., to allow similar claims, &c.
    At a special meeting of the electors, they voted to raise the money paid for such purposes. Claims were allowed by the Board, consisting of defendants Ranspach, Burkum and Markey, and the amount allowed, $9,300, was extended on the tax roll; a portion of which, exceeding $100, was, with other township taxes, levied and assessed on the real estate of appellant, and the tax roll with a warrant to collect was delivered to defendant Cooper, as collector.
    The complainant thereupon filed his bill to have the lien created by this alleged tax removed. The appellant paid the State and County tax, leaving this war tax and the town tax, which were assessed together, unpaid.
    The bill was dismissed, and complainant appealed.

      D. C. Holbrook and Maynard, Meddaugh & Swift, for complainant.
    1. The act of March 21, 1865, is unconstitutional.

      a. The object is not expressed in the title in accordance with the provisions of Sec. 20, Art. 4, of the Constitution.

      b. The tax is for the private benefit of individuals, and to refund money paid to relieve them from the performance of a public and personal duty, and not for the performance of that duty.
    This is not taxation.— Const. Art. XIV., see. 11; 2 Mich. 566 ; 5 Id. 274.
    c. Money cannot be raised by taxation for private purposes merely.—39 Penn. St. 73; 21 Id. 147-167; 2 Black U. S. 515 ; 13 Am. L. R. 661-678; 13 N. Y. 143; 19 Id. 116; 34 Barb. 76.

      2. The statute was only intended to apply to the two townships mentioned in the first section.

      a. If it had been intended to apply to all the townships in both counties, the act would naturally have been entitled “An Act to authorize the townships in the counties of Wayne and Eaton,” or “in certain counties,” “to raise money, &c.”

      b. The first section authorizes the townships named to determine whether they will raise a tax, and within certain limits to fix the amount, that is, as we claim, the sum per man. It does not provide for laying a tax or for auditing-claims. The second section, therefore, is needed to complete the object of the statute in regard to the townships named in the first section, and they are embraced within it. If the intention was to give all the townships in the two counties the benefit of the act, why not make both sections apply to them, or why mention only two townships in the first section ?
    c. If all the townships in the counties are provided for in the second section, then the first would be entirely nugatory.

      d. There is nothing in this statute, (unless by implication,) or in any other which authorizes any of the townships, except those named in the first section, to vote to allow and pay the claims above mentioned, and as no township, without such authority from the Legislature, could lawfully levy such a tax, the statute must be so construed as to limit its effect to the townships named in the first section. The phraseology of the second section of this statute is so much like that of the second section of a similar statute of the same session, pp. 271-2, that it is not improbable that the former was copied from the latter, and that there was an oversight in not adapting the copy to the different circumstances.
    G. V. N. Lothrop and J. J. Speed, for defendants.
    1. The act of March 21, 1865, is constitutional.
    The tax contemplated is within the legitimate exercise of the taxing power. — 8 Mich. 274; Id. 320.

      a. While the Legislature may not enforce mere private duties and obligations as between individuals, it may, and it is its duty to enforce such obligations when they concern the public, and their payment or performance is due from the public. — Am. L. Reg. (Sept. 1865) 661; Id. (Feb'y 1866) 202; 18 Barb. 615; 8 Denio, 399; 19 N. Y. 116.
    2. Does the act of March 21st apply to any towns excepting those that had voted prior to the passage of the act, in favor of alloAving and paying the claims ?
    The town of Springwells had not, prior to March 21st, 1865, voted in favor of allowing these claims.
    Counsel for complainant claim that the words “shall have” in the second line of the second section should be construed to mean “ has,” so that the line Avould read, “ of any toAvnship of said counties which has voted,” &c.

      a. The first section evidently refers to the future, and there is no reason Avhy we should say the second refers to the past.

      b. We can -see no good reason why the Court should say the Legislature used bad grammar, as it must if it says that body intended by “ shall have” to refer to the past.

      e. “ Shall have voted” is the second future or future perfect of the verb “ vote.” According to grammar, as we understand it, the Législature intend to declare, “ it should be the duty of the Town Board of any township which, at a period, future as to the passage of the act, might vote, but after the vote should be taken, to audit and allow the claims,” &o.

      d. When a new rule of law is declared, it never looks backward, unless it is so enacted in the most unequivocal manner. —7 Conn. 557; 2 Seld. 463 ; 31 Penn. St. 301.
   Christiancy J.

Two questions are presented in this case: 1st, Whether the act of March 21, 1865, “to authorize certain townships in the State of Michigan to raise money by tax to refund advances made for bounty purposes,” applies to any other townships except the two specially mentioned; 'and, 2 cl, Whether the act is constitutional. The act is in the following words:

Section 1. The People of the State of Michigan enact, That it shall be lawful for the qualified electors of the township of Nankin, in the county of Wayne, and the township of Delta, in the county of Eaton, to determine by ballot, at any regular township meeting, or at any special meeting regularly called for that purpose, the question of raising money by tax upon the taxable property of such township, and the amount thereof, for the purpose of paying bounties to persons who have furnished substitutes, or representative recruits, or to drafted men serving in person in the military service of the United States, or of refunding any sum or sums of money which may have been raised, advanced, contributed, subscribed or loaned by any individual or individuals, for the purpose of paying bounties to volunteers, or procuring enlistments into the said military or naval service of the United States, to fill any quota assigned to such township under any call for troops made since the fifteenth day of July, a. d. eighteen hundred and sixty-four: Provided, No money shall be raised as aforesaid, to pay bounties for any enlistments since February fourth, eighteen hundred and sixty-five, unless the same had been previously authorized: And provided further, That no more than three hundred dollars shall be raised in any township for each person enlisted and mustered as aforesaid, and credited on the quota of such township.

Sec. 2. It shall be the duty of the township board of any township of said counties, which shall have voted in favor of allowing and paying the claims mentioned in the preceding section of this act, to audit and allow all claims which may be presented for that purpose, for money actually paid, as aforesaid, not exceeding in the aggregate the said sum of three hundred dollars to each person, who, not holding a commission, shall be enlisted, mustered and credited, as aforesaid, which allowances shall be made in the same manner as other ordinary claims are allowed, upon satisfactory proof that the claim is just and proper; and such claims, when audited and allowed, shall be a lawful charge upon any such township, and be paid in the same manner and on like orders as the ordinary expenses of such township are paid; and the amount of such claim allowed as aforesaid, shall be assessed, levied, collected and paid, in the same manner as ordinary expenses or liabilities of such township are assessed, levied, collected and paid.

Sec. 8. This act shall take immediate effect.

Approved March 21, 1865.”

So far as relates to the question whether it applies to more than the two townships, the act, it must be admitted, is upon any theory of construction awkwardly worded; and, taken literally, somewhat incongruous. But construing it with reference to its expressed objects, the mode provided for attaining them, and the general plan and policy of acts in pari materia, as evidenced by the legislation of the State, rather than a literal adherence to particular words, we think it was intended to apply only to the townships specially named.

The opposite view, we think, cannot be well sustained without treating the two sections as each complete in itself, and each providing a different remedy for the same class of claims. But it is manifest that the first section, without the aid of the second, does not reach the object sought to be attained. It simply gives power to the electors of the two townships “ to determine by ballot, at any regular township meeting, or at any special meeting,” &e., “ the question of raising money by tax, and the amount thereof.” It provides no mode of rendering the vote effectual, imposes no duty upon any board or officers to levy, collect, or pay, and does not 'in any manner require the money to be raised; all which, as shown by the previous legislation of the State, has heretofore been deemed necessary in similar cases. It provides no mode of ascertaining or auditing the respective amounts to be allowed or paid to the various claimants for whose benefit the money was to be raised, and no provision for paying them.

From the nature of the case, and the great variety of claims of different characters and amounts intended to be provided for, and the different state of facts upon which they must depend, it is merely preposterous to say that such a multitude of separate and dependent questions was to be determined by the electors in township meeting, and by ballot. It is therefore clear that the electors were not intended or expected to audit, allow, or ascertain the respective sums or claims; but that the amount they were authorized to determine must be either so much per man for the soldiers furnished, or a gross sum; and in either case not to exceed three hundred dollars per man furnished. The second section was therefore necessary. It imposes the duties and provides the machinery for carrying the first section into full effect, and, as we think, this is all it was intended to accomplish. It provides for the auditing, allowance, proof and payment of the very claims mentioned in the first section, and for no others.

But it is urged that the language in the beginning of the second section gives the power to the electors of all the townships in Wayne and Eaton to vote a like tax for like purposes, or that it recognizes votes for that purpose already taken; and if we look only to the letter of the particular phrase, “the township board of any township of said counties,” this would seem to have been the intention. But when we look to the whole act, and consider its expressed objects, and the usual and appropriate manner of attaining such objects, this view will be found to lead to gross inconsistencies which we cannot suppose the Legislature intended. 1st, If this section was intended to give such power to all the townships in said counties, then it was wholly useless to give that power in the first section, and to the two townships only; and so far as the first section gives such power, it was utterly useless and nonsensical ; yet it is the first section only which expressly and formally gives the power; the second, upon any interpretation, only giving it by implication.

2d. The provisions of the second section are confined to “ the claims mentioned in the preceding section of this act,”— not similar claims, or claims of like character, or the like classes of claims, but “ the claims mentioned in the preceding section.” The claims mentioned in the preceding section were those in the two townships only. If, therefore, we adhere strictly to the letter, this provision is just as repugnant to the idea of extending the power to other townships, as the words “any township of said counties” are to the view which confines the operation of the second section to the' townships mentioned in the first.

Every provision and word of the entire act, and its whole frame and expressed object, are entirely consistent with the construction we have adopted, except the single phrase, “ any township,” in the beginning of the second section; and we think the considerations already stated sufficiently show that this phrase, in the connection in which it stands, should be construed as “either of said townships.” And this construction renders the various provisions of the act more consistent and harmonious.

The conclusion at which we have arrived will, we think, be strengthened by comparing this act with others upon like subjects, and especially with the act of March 14,1865, passed at the same session, (Sess. L. 271), of which the act now in question is almost a literal copy, except that the act referred to applies to all the townships in the counties named in it. A comparison of the two acts will lead to the belief that the whole purpose of the second section was to carry into effect the provisions of the first; and that the act now in question when introduced as a bill, or in some subsequent stage, had in the first section included either all the townships in the State, or all in the counties named; but being subsequently amended so as to confine it to the two townships, the corresponding amendment in the second section, thereby rendered necessary to its literal harmony, was in the haste of the session overlooked. Such errors in legislation are not unusual, nor easily avoided.

For the reasons given, we think the act cannot be construed as including the township of Springwells; that the vote and proceedings for raising the tax were without authority of law and void. The constitutional validity of the act does not, therefore, in our opinion, arise in the present case.

The decree of the Court below, dismissing the bill, must therefore be reversed, with costs to the complainant in both courts. And a decree must be entered in this Court in accordance with the prayer of the bill.

The other Justices concurred.


author: Campbell J. Martin Ch. J.

text:
    The People v. William Dean.

      Constitutional law. Meaning of the phrase “white male citizen..'''' All persons in whom white blood so far preponderates that they have less than one-fourth of African blood, are within the meaning of that clause of the Constitution of Michigan which limits the elective franchise to “white male citizens”; and no other persons of African descent can be so regarded.

      Heard May 1st.

      Decided July 11th.

    Error to Wayne Circuit.
    Indictment for illegal voting. The facts are stated in the opinion.

      A. Williams, Attorney General, for the People.
    1. Under the head of Analogy we submit:

      a. That Sec. 4351 Comp. L. prescribes that the names to be placed upon the list of persons to serve as grand and petit jurors, shall be those “ having the qualifications of electors.” In making these lists, the practice throughout the State has ever been to exclude therefrom all persons known to possess any Hegro or African blood in their veins.

      b. That Sec. 1, Art. 11, of our State Constitution provides that “ the militia shall be composed of all able-bodied white male citizens, between the ages of eighteen and forty-five years,” &c. See also Sec. 641 Comp. L., and Act No. 16, Laws of 1862, of this State, which provide for organizing the military force of the State, and making liable to enrollment only “ white male citizens or inhabitants.” In executing these statutory and constitutional provisions, persons known to be at all affected by possessing negro or African blood, have never been enrolled as a part of the military force of the State; and,

      c. That Sec. 629, Comp. L., in relation to taking the census of the State, provides, among other things, for the enumeration of “ the number of colored persons.” In taking the census we submit that in pursuance of the above mentioned clause, persons having even one-sixteenth part of negro or African blood in their veins, have always been enumerated as “ colored persons,” and not as white.

    2. As it regards Custom, we submit:

      a. That persons belonging to the white race have not intermarried with those known to have any negro or African blood in their veins. At least, this has been the rule, and one admitting only of rare exceptions; for such marriages have ever been denominated “ amalgamation,” and considered disgraceful.

      b. That persons known to have more or less negro or African blood in their veins, have uniformly been excluded from ordinary social and familiar intercourse with white persons ; the former everywhere, in this country, constituting a class by themselves for all such purposes; and,

      c. That the prejudice which has existed in the mind of the white people of this State towards our colored population, has not been confined to the negro, mulatto, quadroon and mustee, but it has extended to all known to have any African blood in their veins. Hence, our legislation, wherever it has been prejudicial, on account of color, was so framed as to almost always bring within its purview all such persons. And the same is more or less true of the ruling class throughout the United States.
    3. And now turning to Authority, it would seem that the Court did not err in the construction of the above mentioned provisions of the constitution, embraced in his charge; for

      a. From the time of the organization of our State government to the present moment, the clause “ white male citizen” has never been understood as embracing any persons having any known negro or African blood in their veins; and from the time of the adoption of the revised constitution of 1850, to this day, the words “ civilized inhabitant of Indian descent” have not been treated as including all, or any individuals commonly denominated “ colored persons.” On the contrary, the received construction has been that quadroons, mustees, <&c., were neither “ white male citizens” nor “ civilized inhabitants of Indian descent,” within the spirit and meaning of these constitutional provisions; and, therefore, they have not been regarded as electors and entitled to vote,- — they never having atteñded our elections claiming that high prerogative.
    5. The fact that quadroons, mustees, &o., have not been held to be electors, by the great body of the peo]:>le of Michigan, is further evidenced by the consideration, (now a noticeable feature of our history as a State,) that we have never elected them to office, however well qualified, therefor, more or less of them may have been; for if they were electors, they would have been eligible, and we might have elected them to office; otherwise not.—Comp. L. §§ 594-5; State Constitution, § 5, Art. 4, and Sec. 2, Art. 5.

      o. In the debates of the convention of 1850, the words “ white” and “ colored” were invariably used by the honorable members of that body, in contradistinction to each other,— the former, in its use, having reference to the pure European race, distinguished from the Asiatic, Malay, American and African races, “ by a natural complexion of white, mingled with red,” and the latter to all who had more or less African o&negro blood-in-their veins; being in fact the same description or class of persons then held in slavery in the Southern States. So, too, did the people use and understand these words, “ white” and “ colored,” at the time they considered and adopted this revised constitution; and so, also, have they understood and administered them ever since, for “ the whites of America are descended from emigrants of the several nations of Europe, and resemble, in appearance, those from which they are descended.” — Woodb. & Will. Geog. (Ed. 1833,) 165-9 ; Conven. Deb. of Mich. 1850, pp. 279, 289, 482, 507, 757, 764, 914.
    We submit, too, that the construction of these clauses of the constitution, embraced in said charge, is the only and first one that would suggest itself to the mind of any person acquainted witli the institutions of our country, the races of men living within its limits, and the prejudices and purposes of the European race living in the United States towards the negro or colored race, from the time they first became “property” on the soil of this country, even to the present hour.
    In the following cases, 2 Doug. Mich. 411; 5 Mich. 520, it will be observed that the words “ white” and “ colored,” when used either by counsel or court, had reference, in each instance, to the same kind or description of persons as when used in the debates of said constitutional convention of 1850, and as the people of this State have ever employed them.
    The following a\xthorities, we think, will be found to the same effect as the two last above cited: — 2 Kent's Com. 254, 258, note b ; 14 Ohio, 199; 3 Rich. R. 136; 4 Gratt. 541; 9 Ired. 384; 18 Ala. 276; 2 Carter, (Ind.) 332; 14 Geo. 185 ; 20 Id. 480; 5 Florida, 261; 5 Jones, (N.C.) 11; 37 Miss. 209.
    4. We submit, then, that disposing of the question under consideration, either by analogy, custom or authority, or by all these lights; by the legislation of our State ; by the social and familiar customs of the white and colored races; by the prejudices and purposes of “the whites,” resulting in various public policies; by the practical exposition thus far given to our constitution and laws, and by the first meaning that fastened in the mind when we read this part of the fundamental law of the State,'we can come to no conclusion that will command the judgment, hut that the said convention of 1850, and the people who adopted the revised constitution proposed by them, intended that all “ colored persons,” including those like this plaintiff in error, should be excluded from all participation in our elections. With the justice and wisdom of such exclusion we have nothing to do; but simply to ascertain and give force and effect to the intention of these constitutional provisions.

      Knight & Jennison, Lamed & Kebden, and B. M. Gheever, for defendant.
    I. The qualifications of electors in this State are defined by the constitution. So far as may be applicable to this case the language is, “ every white male citizen,” and “ every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe.” — Art. VII., §1.
    We insist that defendant was a “ white male citizen” within the meaning of the constitution. This is the only question in the case, as all the requests to charge are based upon the 'assumption that he possessed all the other requisite qualifications of an elector.

      a. The word white, applied to persons, means one of the Caucasian race, without any African blood, or, at most, with not one-quarter part African blood. — Bouv. Inst. p. 70; 3 Dana, 382.

      b. Mulatto, means muled, or a mixed breed, from the Latin mulus; French, mulatre, born from different colored people. The offspring of a negro by a white, or a white by a negro.— Brand's Ency. of Science, Lit. and Art; 18 Ala. 276 ; 1 Bail. (S. C.) 273 ; 1 Id. 275 ; 7 Mass. 88.
    We submit that the word “white” is used in our State constitution with reference to race, and not color. It doubtless excludes Indians, as well as Africans, and hence a specific* clause was deemed necessary to give suffrage to the former. This clause includes equally Indians of the full blood and half blood. — 9 Mich. 485.
    It is, in either case, a question of race, and not mere color. There is no neutral ground; each person belongs to one or the other, and not to neither race.
    Where the two races are equal before the law, the line of division must be in the middle; and if the white blood preponderates, the person is of the white race'; if the black exceeds the white, he is of the black race.
    This seems to have been the construction given to a similar constitutional provision in Ohio. The Constitution of 1842 in that State gave the elective franchise to “free white citizens.” Parker Jeffries, the child of a white man and a half-breed Indian woman, offered his vote, and on its being-rejected, sued the trustees of election. The court held he was a lawful voter, and say: “ This matter is clearly settled that all nearer white than black are entitled to vote. No other rule can be adopted, so intelligible and practicable as this, and further refinement would lead to inconvenience, and no good result.” — 11 Ohio, 372.
    In another case the evidence showed there was some black blood, and plaintiff asked a similar charge to the one requested in the present case; that if plaintiff was nearer white than mulatto, he was entitled to vote. The court refused, but did charge that if he had any negro blood he was not a voter. It was held error. — 11 Ohio, 376.
    In 1859, a suit was brought against the election judges for refusing to receive the vote of a person whose father was white, and his mother three-fourths white and one-fourth black; and Gholson J., in delivering the opinion says: “The constitution uses the words, ‘ all white male inhabitants,’ etc., ‘ shall be electors.’” The question is, who are white within the meaning of this provision. It was considered in view of blood or race, and the rule adopted to meet the difficulty of a mixture of blood or race, was, that the white race must predominate. There was a white race and a black race, and the obvious intent was to exclude the black from the elective franchise. If a person has a larger proportion of white than black blood, he is white within the meaning of the constitution. — 9 Ohio, (N. S.) 568. The word white describes blood, not complexion. — Wright, 578.
    2. Similar language used in statutes has also been construed to refer to a preponderance of white blood.

      a. This has been the construction in Northern states.
    Under an old statute of Ohio, in 1829, black and mulatto persons were disqualified as witnesses in cases where the parties were white. On indictment for felony, the prisoner being a quarteron, the prosecution called to the stand a negro as a witness. Prisoner’s counsel objected, on the ground of his incompetency under the statute. The court admitted the witness. Exceptions were taken, and, on error, the Supreme Court held the witness was improperly admitted, as the prisoner was to be regarded as a white person. The court say: “ Color alone is insufficient. We believe a man of a race nearer white than mulatto is admissible as a witness.” — 4 Ham. 354, (Ohio, Cond., 1-4, 821.)
    Under a similar statute in Virginia, a witness who was offered was proved to have less than one-fourth negro blood. The court held that he was a competent witness.' — 4 Grattan, 541.
    When the school law makes schools “ free to all white children,” all who have more than one-half white blood are entitled to the benefits of the law. — Wright, 578; 12 Ohio, 237.

      b. In the late slave States, where courts have expressly recognized an inequality of the races, a large preponderance of white blood has been held to include the person within the white race.
    In Alabama, a statute provided that “ every slave, free negro, or mulatto, who shall commit, or attempt to commit, a rape on a white woman, shall, if convicted, be punished by death.” One Thurman was indicted as a mulatto under this statute, and convicted. He was, proved, ta be.the offspring of a mulatto father and a white mother — a quadroon. The Court, on error, held he was not a mulatto, and did not come within the statute. The Court say: “ If the Legislature had intended to describe a caste, to include negroes, and all persons descended from negro stock on one side, and to subject them to certain penalties, it is to be presumed that they would have done so in clear language. If the statute against mulattoes is, by construction, to include quadroons, then where are we bound to stop ? If we take the first step by construction, are we not bound to pursue the line of descendants so long as there is a drop of negro blood remaining?” — 18 Ala. 276.

      c. For a discussion of similar questions of construction, see 1 Dev. 376; 4 Id. 340; 9 Ired. 384; 5 Jones (Law) 11; 20 Geo. 512.
    The term white, used in connection with other subjects, and relating to color, in a statute, does not mean an absolutely pure white. A provision that “ no ballot shall be received or counted unless the same is on white paper,” was held to mean that a ballot on white paper tinged with blue was upon white paper, within the meaning of the statute. — 15 Ill. 492.
    3. The Constitution of the United States having entirely obliterated slavery, there remains no legal reason, aside from sjiecific enactments, for making a distinction between the races.
    The universal and all-prevailing theories of our Government are utterly antagonistic to all caste, arising from property or blood. Where there is manifest in the constitution and laAVS of the State a prevailing legal policy, the courts Avill not strain the construction of particular language against such known policy.
    We ask no unnatural or unreasonable construction of the constitution; we seek only such an enunciation of its principles as shall be in accordance Avith justice and equal rights.
   Campbell J.

Defendant was prosecuted for illegal voting; he, as alleged, not being within the constitutional provisions regulating the qualifications of voters. Two propositions were discussed on the trial, and charges were asked or made upon both of them; first, whether a person of less than one-half of African blood was white, within the meaning of the Constitution; second, whether one of not more than one-sixteenth African blood was white. The Circuit Judge charged against the prisoner on both points, and exceptions are taken to his rulings.

A decision of the second question would probably, (so far as we can judge from the testimony set forth,) disjDOse of this case; but as the case is evidently designed to obtain a ruling upon the general subject, in order to settle the position of persons of mixed blood under our Constitution, it would not be desirable to avoid the principal question. The Constitution now in force gives the right of voting, (under certain restrictions,) to “ white male" citizens or inhabitants, and certain civilized male inhabitants of Indian descent. The former Constitution confined the privilege to “white male” citizens or inhabitants. At the time when the present Constitution was submitted to a popular vote, a separate proposition was submitted with it, whereby, if adopted, “ every colored male inhabitant" would have been put uj>on precisely the same footing, as an elector, as if he were white. This proposition was rejected, and the Constitution, therefore, admitted none to be electors who were not “ white."

The origin of this regulation, so far as the State of Michigan is concerned, is to be found in the act of Congress of February 16, 1819, authorizing the election of a delegate to Congress from Michigan territory, giving the right of voting to “free white male citizens," who had resided here a certain time, and paid taxes. This was followed by the act of Congress of March 3,1823, (amendatory of the various territorial regulations of Congress,) which fixed the same standard for electors, in all elections for any purpose to be had within the territory. (L. 1827, pp. 34, 35.) The first act proposing the erection of a State Government, passed June 29, 1832, submitted the question to the votes of the “white male inhabitants,” in their respective districts. (L. 1832, jp. 37.) The act of September 6, 1834, under which the census was taken as a preliminary to applying for admission into the Union, required the inhabitants to be classed as “white” or “colored” persons. (L. 1834, pp. 3, 4.) The latter were also divided into such as were “free" and such as were bound to serve for life, or for a term of years. This was probably to reach such colored persons as were retained by their former owners, within the terms of Jay’s treaty of 1794, under which some cases had been decided by the Supreme Court of the Territory as not subject to the ordinance of 1787. The act of Jammy 26, 1835, under which the delegates to the convention which framed the first Constitution were elected, provided that the “free white male inhabitants" of the Territory, who should have resided therein three months previous to the fourth day of April thereafter, should be authorized to vote for such delegates. (L. 1835, pp. 74-5.) That Constitution was by the convention required to be voted on by such persons as were thereby qualified “ to vote at all elections." (Schedule, Const. 1835, § 9.)

We are, therefore, to determine what was meant by the term “whitef when applied to the prevailing portion of the population, in whose hands the government of this region has been kept through this course of congressional, Territorial, conventional, and popular action, and from whose numbers the jurors were to be exclusively drawn, and who alone were, under the laws of the United States, subject to be enrolled among the militia. (L. 1827, p. 175; Act of Cong. of March 8, 1792; L. 1827, p. 417.)

There was no generally prevalent legal meaning which can be regarded as having become so attached to the word “white,” as to have been of any governing weight in its adoption. It stands like any other phrase, used in laws and acts of state, which must be so construed as to carry out the design which its framers may fairly be supposed to have had in their minds. The reasons for drawing distinctions, in this country between different classes of inhabitants are notorious; and while the course of events has, with the destruction of slavery, very considerably modified public opinion upon questions which bore upon the people formerly enslaved, and their kindred, we cannot regard provisions made under the old state of things as at all changed in their meaning by any subsequent events. If a popular regulation of to-day becomes unpopular in its operation to-morrow, no construction can make it mean tomorrow what it does not mean to-day. The duty of repealing laws and altering constitutions has not been imposed upon the judiciary. And I think we cannot truly interpret the language of our Constitution upon the subject of voting, without giving due consideration to the fact that it sprang from the existence of an extensive and remarkable prejudice, which has been recognized in all countries as one of the peculiar features of American society. There are few, if any, states whose statutes and constitutions have not been tinged by it; and the lines have been so plainly drawn in the popular mind, that those who have opposed these regulations, and those who have maintained them, have seldom quarreled very much over the extent of their application. They have been recognized and treated on all sides as designed to keep up a dividing line in the law, which should prevent the offending of social prejudice. Our State legislation has never sanctioned the discreditable penal enactments which put black men in the category of suspected criminals under bonds for good behavior, as was done in the Territory, and we have never, in State or Territory, attempted to make color a test of veracity in the witness box. There has been no very serious difference between the privileges of any of our inhabitants, in matters of mere private concern. But political distinctions have been perpetuated in the same language, since the origin of our elective system, in spite of strong efforts to eradicate them. And, in all this conflict of ideas, it must be borne in mind, that it has never occurred to any one that different shades of color could afford even a plausible ground of compromise. The mooted principle has been recognized as entirely outside of any shades and gradations of color or blood; and those have only become important, when a practical rule became necessary to determine who could be classed as white or not white, by any test of reasonably easy application. For no one has, so far as I know, advanced the absurd notion that a preponderance of mixed blood, on one side or the other of any given standard, has the remotest bearing upon personal fitness or unfitness to possess political privileges. The subject pannot be discussed upon philosophical grounds, because there is no philosophical distinction involved. The recognition of slavery, in all probability, chiefly, if not entirely, created and confirmed the feeling which has so jealously separated the white race into the privileged and dominant people in this country. But the right of the people to determine the qualification of electors is undisputed. We are bound to adhere to the rule which they have established. The right to vote is granted to a certain designated class, and to.no others. The voter must, without any undue straining of language in any direction, come within its terms. I think it has never been deemed improper to solve any reasonable doubts in his favor; and such is certainly the fair tendency of our institutions. But to go beyond this, from any motives of benevolence, or supposed public policy, would be to create, and not to construe, the law. The nature of the question precludes anything like absolute accuracy, because there are no infallible tests. Opinions may, therefore, very well differ as to the line which must be adopted, as, on the whole, most likely to divide electors from non-electors in. closest accordance with the expressed will of the people. And if the term “ white'1'1 had no ascertained and technically accurate legal meaning, when incorporated into the various instruments in which it is found to have operated in this State, then we must find its interpretation from the best sources open to us.

The cardinal rule of construction, concerning language, is to apply to it that meaning which it would naturally convey to the popular mind, in all cases where the propriety of such construction is not negatived by some settled rule of law. In all instruments which are submitted for confirmation to the people themselves, and which derive all their validity from a popular vote, such a construction is peculiarly necessary; for otherwise they would be defrauded of the right to frame their own government according to their own will.

When the people of Michigan decided to retain their ancient system, and to allow none but white persons to vote, they must have intended to embrace only such as were commonly so called and received. Was a person in whom white blood simply predominated over negro blood thus regarded ? There may have been persons, and possibly even communities, who imagined there was some rule of law which gave to those in that condition the electoral rights of white persons; and there may have been others with whom social prejudices did not seriously affect their intercourse; yet, even among these, it cannot be maintained that they would havb been esteemed white. And it has never been the case that any one having visible tokens of African descent has been regarded by the community generally as a white person. And where those tokens have been very slight, yet still perceptible to ordinary persons, they have caused their possessor to be distinctly classed among colored persons. I think the mere intensity or weakness of these signs, when unmistakable, has made no difference in the classification. And it is very well known that the associations of persons having visible portions of African blood, have generally been closer with each other than with those acknowledged as white. ' They consider themselves as of one race, and live and act together. This mutual recognition, coupled as it undoubtedly is with a general disposition on the part of white persons to avoid social relations with the mass of mixed, as well as unmixed, races of African descent, furnishes a commentary on the terms white and colored, which can hardly be resisted. I think a conclusion which would convict all persons Married in this State, of living in open adultery, where husband and wife are on diffeiv ent sides of the mulatto standard, would shook the sense of the whole community, as contrary to all- practice and under-. standing of the received division of races. If this rule has been misunderstood, such results of course cannot change it; but where language is used by the people for their own government, the recognized meaning cannot be ignored, without leading to inevitable mischief.

We are not left, however, to any individual opinions concerning the incorrectness of .classifying those of visibly mixed blood among whites. There are many decisions upon the subject, made in different parts of the United States, and there have been many statutes passed, intended to furnish accurate means of determining the dividing line between the races. And in all of them, (except a class of decisions in Ohio), it is evident that it has not been deemed proper to class as white any not of pure blood, who could be distinguished without introducing uncertain tests. There is neither decision nor statute which places the criterion in the mere preponderance of either blood. And as the Ohio decisions stand alone, and have now been distinctly repudiated on principle by the courts of that State, and only adhered to in a single instance, whore they had determined a rule of right, it may be well to refer to them.

The first case was Gray v. The State, (4 Ohio, 354), where a defendant upon trial objected to the testimony of a negro offered against him, as incompetent under the statute forbidding negroes or mulattoes to testify against white persons. The defendant was assumed to be of less than half negro blood, and was held on that account to be a white person. The decision is very brief, and bears every evidence of haste. The court declare in substance that the statute in question undertakes to divide the population of the State into white, black and mulatto, and that they are unable to- point out any obvious distinction with certainty. They conclude by declaring that they were governed by two reasons in making the decision; first, because unwilling to extend the disabilities of the statute; and, second, because of the difficulty of distinguishing among the several degrees of duskiness. It is somewhat singular, however, that the case itself exemplifies the fallacy of both of these positions. A penal statute applying in terms to none but blacks and mulattoes, could not under any circumstances include any others; and the defendant could not have been made out to be either a black or mulatto, by holding that he was not a white man. And, so far as relates to facility of distinction, the court in this case founded its judgment upon a finding of a judicial inspection of the party without any testimony whatever, and on the faith of such inspection was enabled to say that he was of mixed blood, somewhat more white than black; showing an ability to distinguish him- readily from the white race by his appearance, and acting upon a test of color which it at the same time professed to repudiate.

The next case was Williams v. School District No. 6 [Wright's R. 578), where a person three-quarters white, and taxed for schools, complained of the exclusion from school of his children by a white wife. - The law in express terms exempted none but negroes and mulattoes from school taxes, and then required all white children to be received. The court, while holding that his suit was too defective to be maintained, and therefore putting him out of court, asserted the authority of the former decision, .and were severe upon, the district for taking his money and yet refusing to receive his ■ children. They, however, would have been treated as. white by good authorities elsewhere.

In Jeffries v. Ankeny (11 Ohio, 372), where a person of one-fourth Indian and three-fourths white blood claimed the right to vote, the court saw fit to resort for the first time to the general rule concerning the condition of such persons as derived from public opinion, and declare ■ them white; and from the peculiar manner in which Gray's case is referred to and quoted, and the care with which they abstain from referring expressly to any similar rule as applying to Indian blood, it is evident that they felt a little awkward in classing blacks and Indians together, and that they had been very careless in their previous language. They had found no such public opinion to aid them concerning mixed African blood, and it is too well known to require argument — and the facts stated in the decision show it — that Indian blood was never considered in that State, (as it was not considered here,) any detriment whatever to social consideration; and even half-breeds as well as quarter-breeds are by no means uncommonly reckoned among the whites, and are often quite undistinguishable from them in appearance and language.

Thacker v. Hawk, (11 Ohio, 376), was a case where the court below held that any mixture of African blood whatever disqualified a person from voting; (a doctrine which prevails nowhere;) and the judgment was reversed on the authority of Gray's case. There are also some other decisions resting on the same authority, but throwing no further light on the subject.

The old constitution of Ohio having received this settled construction, a new one was adopted retaining the same provision as to color; and it was held in Anderson v. Milliken, (9 Ohio State R. 568), that it must be considered as having been adopted subject to the construction expressly given to it upon that head, and that voters need only have a predominance of white blood, because that had been fixed by the re-adoption of a construed clause.

But the same bench at the previous term, in Van Camp v. Board of Education of Logan, (9 Ohio State R. 406), held that the rule was not maintainable on any other ground, and refused to follow the old decisions any further. They held that “ colored persons,” whether lighter or darker than mulattoes, had never been received or regarded as white by public sentiment, and should not be so held; and that the old decisions had never been able to satisfy the community, or to prevent the Legislature from considering the standard erroneous; and that they were evidently the result of a very natural feeling, that some of the laws were discreditable and unjust. The very fact that it became necessary for the appellate court to repeat the same decisions so many times, is strong evidence that they were not acquiesced in as well founded; and shows the folly of attempting to assert by judicial authority that words mean what everybody knows they do not mean. It has, indeed, been considered a proper exercise of judicial courtesy to strain a point in favor of statutes, so as to give them a meaning Avhich shall save their constitutionality; but, with that someAvhat questionable exception, courts Avill always find it necessary to explain aAvay fewer of their own words, Avhen they fix a natural meaning upon the words of others, and leave the responsibility of every measure to fall where it belongs.

As the decisions now stand, so far as I have been able to folloAV them out, there is not a court in the United States which holds that a colored person,” in the popular acceptation, although lighter than a mulatto, can be called “ white” without doing violence to language. In this State, both before and since the constitution now under consideration, the population of African descent has always been divided into black, mulatto, and other persons of color," under statutes designed to protect them from illegal bondage; and every one must admit that statutes which protected none of a lighter shade than mulatto Avould have been of comparatively small service in that direction. (See R. S. 1838, p. 624; 2 Comp. L. § 5735; L. 1859, p. 526.) The term, “persons of colorf Avas used in a very broad sense, and in conformity with popular usage, or it Avas senseless altogether.

If a man is not made white by a mere predominance of white blood, then the question arises, where is the line to be drawn, and how is the distinction to be ascertained ? Rules of suffrage must be presumed uniform as far as possible. It must be admitted, therefore, that we are compelled to discover some mode of classification, and that persons of precisely the same blo.od «must be treated alike, although they may differ in their complexions. There are white men as dark as mulattoes, and there are pure blooded Albino Africans as white as the whitest Saxons. This classification is no doubt a difficult task, and there is room for much disagreement in it, because no rule can be applied without some inconvenience; but that will not justify us, I think, in refusing- to assume the duty, and in holding- those to be white who can be easily seen by every one to be.otherwise. We are not, however, without some excellent guides upon the subject, in the Constitution and the laws which have governed our elections from the outset.

The Constitution does not impose any restriction of color, except upon electors. The aim of all election laws is to preserve the purity of elections by prevention of illegal voting as far as possible, so as to ensure a legal election as nearly as may be. The prevention of illegal voting has, until recently, always been mainly in the hands of inspectors of election; the registry system having been adopted long since the last Constitution. During a large portion of the time these inspectors have had no right to examine one claiming to be a qualified voter on oath, except as to certain facts entirely independent of his color; and under the statutes it would have been impossible for them to administer oaths to witnesses. - And it is apparent that if issues could be raised before them, and tried by witnesses, the trial of the first voter’s qualifications might exhaust the time for the entire poll, and destroy the election. We held in People v. Wattles, (13 Mich. 446), that the statute requiring a person who would take a certain oath, to be allowed to vote, did not dispense with the pre-requisite of registration; and the former Supreme Court in Gordon v. Farrar, (2 Doug., Mich. 411), held under a similar statute, entitling- a person to vote who took an oath, having no reference to his color, that the inspectors must in some way or other be satisfied that he was white. As they could generally do this only by inspection, (not being able to obtain testimony,) we must assume that it was intended that the division of persons, into white and other than white, must have been designed to reach those who, as classes, are apparently white, and likely to be so regarded by men generally. No scientific or technical test could be admissible, because the inspectors must usually be plain men of miscellaneous occupations. In some States the rule of determining blood by appearance has been held applicable to individual cases without classification; and in Johnson v. Norwich, (29 Conn. 407), this rule is referred to as having much to recommend it. The Supreme Court of Ohio, in 6ray’s case, acted upon a similar principle of judging of blood by appearances. But it seems necessary, in .order to make the constitutional rule at all sensible and practicable, that any general classification must be based upon the distinction between those who as classes are apparently white, and those who are not. As all really legal voters should have their rights, the line must be so drawn as to include among the white all classes except those among whom persons apparently white are exceptional cases. And it remains to be seen whether any such division is feasible.

It will be found by inspection of vocabularies and books of reference that, among all the principal civilized nations Avhich have had to deal Avith'the African race, there have been but three Avell recognized divisions of pure and mixed blood, into blacks, mulattoes, and quadroons. None of these can be properly classified as white. Beyond this the division ceases to be general. The term Octoroon” in the English language, except possibly as a scientific term, belongs to the department of sensation literature, and has not, until very recently, been adopted into any of the dictionaries. It does not appear in such works generally. It is fair to presume — and I think such is' the general experience — that, Avhile quadroons are in most cases easily distinguished as not Avhite, persons having less than one-fourth African blood are often enough white in appearance to render any further classing difficult, and to require, in many instances, more than the usual knowledge of mankind to distinguish their mixed blood by'inspection. The Virginia rule of presumptions, adopted in the last century, when opinions had not become heated on this subject, fixed the line of quarter blood as the dividing standard. (Dean v. Commonwealth, 4 Grattan, 541; Gentry v. McMinnis, 3 Dana, 382). Judge Bouvier recognizes this as a prevalent rule, (l Douv. Inst. TO). It is a rule less likely to cause litigation or mistake than any other, and one which does no violence to the general understanding by including among whites any great number of evidently Colored persons, while it is broad enough to admit all who have any reasonable claim to be called white.

I am of opinion that it should be considered, therefore, that persons are white within the meaning of our Constitution, in whom white blood so far preponderates that they have less than one-fourth of African blood; and that no other persons of African descent can be so regarded. As the defendant came very far within this rule, I think a new trial should be granted.

Cheistiancy and Cooley JJ. concurred.

Martin Ch. J.

dissented, and stated that he would write out his views at a future day. The following opinion was subsequently prepared:

Dean was indicted, tried and convicted in the Circuit Court for Wayne county, for illegally voting at an election held at a regular township meeting in one of the townships of that county for township officers, and at the same time and place at a general election for members of the Board of Regents of the State University.

The bill of exceptions shows the following state of facts:

That Dean being a resident of the township offered to vote at said elections, and, upon being challenged, -took the oath prescribed by law, that he was a resident of said township and possessed the other requisite qualifications of an elector; that he was of Indian descent, and not a member of any tribe; whereupon his vote was received and deposited in the ballot-box and counted with other ballots deposited therein, according to law.

That thereupon the counsel for the People introduced as a witness, one Andrew P. Young, who being duly sworn, testified to the above facts; and further, that from the color and appearance of the defendant, he regarded him as a mulatto, and that he did not consider him a white man. The said counsel also introduced other witnesses, some from the State of Delaware, who testified that defendant Avas a mulatto; that he was not a white man; that he was born in the State of Delaware; that in Delaware they considered all persons of mixed white and African blood to be mulattoes; that they (the witnesses) could not state the proportion of white or African blood in the defendant; but they judged from his appearance that he was of such mixed blood, with a considerable proportion of negro blood in him, and therefore they understood him to be a mulatto ; that they called by that title all who were not entirely of white or black blood. The said counsel for the People then introduced as a witness for the prosecution Zina Pitcher, who testified that he was a physician and surgeon, and had practiced as such for the last forty-three years; that he was acquainted Avith the races, Indian, Negro, Mulatto, etc.; that he had examined the prisoner on trial, and from such examination it was his professional opinion that there was some African blood in the defendant, but that it was very much diluted, not exceeding one-sixteenth part; that he should think the prisoner had one-sixteenth African blood in his veins; that the only clear indication of African blood is a peculiarity in the cartilages of the nose, and this was an infallible indication; that there was nothing about his appearance in other respects, except color, which indicated African blood; that his skin was not different from that often Avitnessed in Europeans of bilious temperament; that his hair had the structure of the Caucasian; that the hair is always either of the one race or the other, and in the mixed blood the hair alone would indicate only the one or other of the races; that he was not a mulatto; a mulatto being a person of the half blood, and that the defendant was far from that; and that he was a white man, except such taint of African blood.

The counsel for the defendant then introduced witnesses, who were sworn, and testified that they had known the defendant and his family in Delaware; that they were of Indian descent, from the original Indians of Delaware, and that they had no negro blood in them to the knowledge of the witnesses; that they, the said witnesses, had never heard of such a thing.

Upon this state of facts the counsel for the defendant requested the Circuit Judge to charge the jury:

1st. That if they believed from the evidence that the defendant possessed the other requisite qualifications of a legal elector, yet that he had a trace of African blood in his veins, not exceeding one-sixteenth, while the rest was of the white race, he was a legal elector, and lawfully entitled to vote.

2d. That if they believed from the evidence that the defendant had all the other qualifications of an elector, and had in his veins a preponderance, more than one-half of the blood of the white race, he was a legal elector.

3d. That if they believed from the evidence that the defendant was of Indian descent, but had such a trace only, or portion of negro or African blood in his veins, he was a legal elector, as a person of “ Indian descent,” under the constitution, if they believed, from the same evidence, that he had all the other requisite qualifications.

And the said Circuit Judge then and there refused to charge the said jury as requested in each and every one of the said requests, to which said refusals to charge, and each and every one of them, the said counsel for the defendant then and there excepted, and the said Circuit Judge did then and there charge the said jury that, although the said defendant might possess all the other qualifications of an elector at said election, yet if they believed, from said evidence, that he had a portion of negro or African blood equal to one-sixteenth, as testified to by Dr. Pitcher, he was not a white man and a legal elector, within the meaning of the state constitution, and was not entitled to vote. And if he knowingly and wilfully voted, at said election, knowing that he was not a white man, he should be convicted. To which said charge, so made, the counsel for the defendant then and there excepted. And the said Circuit Judge then and there further charged the said jury that if they believed, from the evidence, that said defendant possessed all the other qualifications of an elector, excepit being a wffiite man, nevertheless if they believed, from the said evidence, that he was a pierson of Indian descent, possessing, however, a distinct and recognizable trace of negro or African blood, amounting to one-sixteenth, as was testified by Dr. Pitcher, he was not a white man, within the meaning of the constitution, and was not entitled to vote as a person of “ Indian descent” under our constitution.

Upon all the exceptions taken error was assigned, and I think -well assigned. I think there was manifest error in denying the requests to charge as asked by the defendant, and in the charge given. If Dean possessed the other requisite qualifications of an elector, yet had a strain of African blood in his veins, not exceeding one-sixteenth, whether the rest was of the white or the Indian race, we are all agreed that he was a legal elector. It is thus conceded by all the Court that a strain of African blood is not sufficient to disqualify one claiming the electoral^ rights. This, as my brother Campbell says, is deci-. sive of this case.

But another question was raised, which my brethren have discussed to great extent, as they regarded it as the real question sought to be raised, and as I differ from them as to its proper solution, I shall consider it, but in as narrow a compass as possible, consistent with duty. It is this : If the defendant had in his veins a preponderance, more than one-half, of the blood of the white race, was he or not a legal elector ? (I throw the question of Indian blood entirely aside, as of no -interest in this discussion,) or what dilution of African blood is requisite to make the possessor white” so as to enable him to demand and enjoy the electoral franchise.

I agree with my brethren that np to the time of the adoption of our present constitution, (and I think it true up to the present time,) there was no generally prevalent legal meaning which can be regarded as having become so attached to the word “ white” as to have been of any governing weight in its adoption into our constitution and laws. The origin of the regulation, confining the right to vote to white males in this state, has therefore very little weight with me in determining the value of the word “ white” as employed in our constitution. The question is open. What does it mean as it is employed in that instrument ? But I will for a moment consider that origin. It appears that it originated in the act of Congress of February, 1819, authorizing the election of a delegate to Congress from Michigan Territory, conferring the right to vote irpon free white male citizens who had resided in the Territory a certain length of time, and paid taxes; Other acts of the Territory followed, fixing- the same standard; and from these sources and the continued use of the phrase, it was, as I think, finally employed in the constitution, but with the loose, indefinite idea of its value and meaning which my brother Campbell has suggested. And in considering this origin we must not forget that it sprang up when slavery was a recognized and powerful institution in the country, overshadowing and to a vast degree controlling the Government, and the political sentiments of individuals of all parties. The predominant idea of that day was that white blood should govern' and control our institutions, but the strain of blood which should divide the white and African races was not regarded — it was then of minor importance. This was universally true in the free states, and in the slave states no such question could arise, their peculiar institutions and laws preventing it. The regulation, which has been incorporated into our constitution, was continued, partly from this fact, that it already existed unexpounded, and partly from indifference, as the questions respecting the status and rights of those possessing a strain of African blood, less than the mulatto had not then become the subject of consideration, or political action. And at the time of the adoption of our present constitution, I do not think this question of degree of blood entered into the consideration of voters. They only determined that negroes should not vote, and this included, without doubt, mulattoes. If they went further than this, they intended to exclude every person in whose veins a single drop of Africrn blood could be traced. It was not until sectional contests for power, the agitation of the question of the right to petition Congress for the abolition of slavery in the District of Columbia, and the agitation by a few persons in the northern states of the question of the justice and right of holding-men in bondage, that the strong and bitter prejudice of color was excited in the north, amounting with a certain class to intense hatred toward all who were black, or possessed the least taint of African blood. These are feelings to which the originators of this regulation were entire strangers, and which, I hazard nothing in saying, they would have repelled with earnest indignation, 'and opposed — if not wholly ¡prevented— by wholesome qualifications of this regulation, if they had been apprehended. And if they had done so, I have no doubt such qualifications would still remain in our constitution and laws, for the same reason that the word “ white” remains unqualified. The question, how much, or how little African blood affects the political status of the posessor is, then, of comparatively modern origin, and up to this day is only agitated in the north. The position which will be taken in the late slave states is not yet made manifest. In no other country than ours has it, or will it arise. Is Alexander Dumas less a man for possessing a strain of negro blood, or would he be hustled from the polls, in France, for that cause ? It has been left to freemen of a boasted free Government to excite this hatred of races, and deny to persons tainted with African blood the equality we boast all Americans are entitled to. And to our shame be it said, this prejudice is of Northern origin — it never had ground or foothold in the slave states. Thus, as one example, the State of North Carolina, until about the year 1832, went further than the people of Michigan have ever been disposed to go; and by law provided that all freemen who had paid a public tax — and free hlakhs were included in this category — might claim and exercise the elective franchise. And, I am glad to say, the same right is extended to free blacks in the New England states, and in New York and New Jersey, and perhaps other Northern states — in some with, and in some without qualification. No prejudice of blood existed in the slave states, (as they were once called,) at the time this regulation was established in Michigan, nor do I think it does yet, except such as may result from the abolition of slavery, but in all their laws regulating the status of the black they were influenced only by considerations of pecuniary interest, social security, and the acquisition and retention of political power. The negro, and those possessing negro blood, were regarded as chattels, if slaves, and treated as such; the free negro, as in North Carolina, being regarded as a man. It was left to northern men to arouse that prejudice and excite that hostility toward the colored race, and all having African blood, which we are now witnessing, and which we have for the past few years witnessed, and to which the South were strangers. And how? Not 'by expressing opinions which every freeman has the right to utter, but by the persistent efforts made to suppress that expression of opinion, and by engendering and fostering the bitterest' prejudices both North and South against those who dared to speak as they thought, and by arousing the fears of the South for the safety of property, the security of families, and the preservation of political power.

There is no escaping this. This was the origin of that prejudice of blood which exists at this day amongst us, and which is by some regarded as remarkable, and by others natural, but which is really the result of education and political training. If the blacks and those possessing a strain of African blood associate more closely with each other than with pure whites, it is because of this unnatural prejudice, and is no more anomalous than the closer affiliation of foreigners with those of their own nation. This association by black or white depends upon education and social sympathy.

This is the first occasion where the Supreme Court of this State has been called upon to construe the word “ white” as used in the constitution, and I should regard myself derelict in duty, and unjustifiably regardless of the progress of general intelligence, and the progress of the age should I interpret it in a manner incompatible with such progress, unless compelled to by the irresistible conclusion, or the absolute evidence, that the people in employing it, had the distinction of color to the slightest shade, or the liveliest notion of prejudice toward African blood, however much diluted, active in their minds. This I do not believe. That they intended that no black or mulatto should vote, I have no doubt, but beyond this I think there was no thought. They certainly had none that a person of less than quarter blood had or would have a superior right to vote, over one possessing a preponderance of white blood; and they must have intended that the least strain of African blood should disqualify the possessor, or that a preponderance of white blood should confer the electoral right, in other words, embrace him within the catagory of white citizens. I see no way of escaping this conclusion, nor of establishing any other rule, except by judicial legislation. To my mind, it is inevitable that we must take one or the other horn of the dilemma.

By what authority 'of law, or principle of reason can we fix a strain of one-eighth, one-sixteenth, or one-thirty-second of African blood as a standard of caste, so as to make a man white or black, as he happens to have more or less, and thereby admit or exclude him from the full rights of citizenship ? How can a court of justice thus usurp legislative power, and introduce an arbitrary and artificial test, depending upon the proportion of mixed bloods in the person claiming the right to vote ? The reasoning of my bretlxx-en shows to my mind conclusively that these things cannot be done, that the attempt to fix an intermediate standard is an attempt to legislate, and it is not sustained by the arguments they have employed. It will be observed that the constitution of this state contains no express prohibition to black or colored persons voting. It only declares who may vote, and these classes of blacks and colored are not mentioned. Had “colored” persons been excluded by express words, a fair and pex’haps conclusive argument might be made against the right of axxy one having the least stx-ain of African blood in his veins to vote. But the words “white male,” etc., are the only words employed, and these are employed to denote the sex and the blood, rather than the color of such as may be voters. Unquestionably it was intended by the use of the word “white” to exclude blacks from the privilege of voting, and I think this embraces mulattoes also, for they are neither white nor black; no preponderance of the blood of either race existing. But the case is different where there is a preponderance of either blood, and clearly so where that preponderance is of the paternal strain. As none but males are allowed to vote, the right to the exercise of the electoral franchise is acquired through the father ; and when his strain of blood px-epondex’ates, as if he be pure white, or less than half African, then all the rights of citizenship which he possesses are transmitted to his offspring. All will concede that if a white American male citizen intermarries with a female of fox-eign birth, whether at home or abroad, or with an Indian woman, the children born of such marriage are American citizens to the fullest extent, and entitled to all the rights of citizenship possessed by the father. This is the uixiversal rule. The only exception I know ofj to this general role, is to be found iix the status of the slave, and this exception is apparent not real. There was no lawful wedlock between white and colored persons in the so-called slave states. Every child of colox-, born of a slave mother was a slave — regarded only as a subject for servitude, or for sale in the market. They were really chattels, and hence the established rule in those states regarding this class of persons was —pa/t'tus sequitw' ventrem. With the abolition of slavery this rule must fall to the ground, for the reason it no longer exists. But even in those states as liberal a view of the rights of the colored persons was entertained, and recognized by law, as is by my brethren in this case. The standard established by slavery to distinguish the freeman from the slave, is precisely that which the maj ority of this court have adopted to distinguish the white from the African' — the voter from the non-voter; for the person seeking to vote must be of the one or the other descent. In other words: I find in our Constitution no recognition of grade or degree of admixture of blood, intermediate the two, — and I repeat again, that to my mind a preponderance of blood must control, or absolute purity of white blood be required. The law of Kentucky and Yirginia was, and for anything that I can find, still is, that being a white person, or having less than one-fourth of African blood, is prima, facie evidence of freedom. — (3 Dana, 382; 4 Grattan, 541.) In a free state this rule would make the person white by the judgment of my brethren. This was the rule of chattels. Can we not at this day, and in a free state, rise above this rule of slavery and occupy a still more liberal and humane ground ? But we are not without the authority of the court of at least one free state — and I think the only one in which this question has been distinctly raised and adjudged, — the state of Ohio. The views of my brethren and myself differ so widely upon the condition of the law in that state, that I shall examine the decisions of her Supreme Court with some care, and endeavor to show that the rule established by her courts, is precisely that, for which I contend. The first case in that state, in which this question of blood arose, was that of Gray v. The State, (4 Ohio, 353). Polly Gray was indicted for robbery, and the prosecuting attorney called to the stand a negro as a witness in behalf of the state. The counsel for the prisoner objected to his admission, on the ground of incompetency under the statute regulating black and mulatto persons. The prisoner was of a shade of color between the white and mulatto. The witness was admitted to testify and exception taken. Here was the clear question presented whether a person of a shade of color between the white and mulatto was to be regarded as a “ white” person — and the Supreme Court resolved it affirmatively. The court says: “ The statute compels courts of justice to reject black and mulatto witnesses, where a white person is a party. The statute is one which a court is called upon to execute with reluctance, yet when a case is presented, the court has no alternative but to yield to the expression of the legislative will. Three descriptions of persons are designated by name in the statute, white, black and mulatto — and these three are well known by the same terms in common life; but we doubt whether we can refine upon these obvious distinctions, or whether good policy or good sense requires us to raise the necessity for further discrimination. We are unable to set out any other plain and obvious line or mark between the different races; color alone is insufficient. We believe that a man of a race nearer white than a mulatto is admissible as a witness, and should partake in the privileges of whites. We are of opinion that a party of such blood is entitled to the privileges of whites, partly because we are unwilling’ to extend the disabilities of the statute further than its letter requires, and partly from the difficulty of defining, and of ascertaining the degree of duskiness which renders a person liable to such disabilities.”

This is the leading opinion in the courts of Ohio upon this question of blood, and has been ever since followed and cited with approbation to the present day. The case commends itself, X think, to the judgment of all; its position is sound, and its reasoning good. I see no evidence of any thing but mature deliberation in it, although it is not elaborated with a flood of words. This could not be expected, as it was one of first impression; and the result of careful deliberation announced is worth more than volumes of argument to show by what process of reasoning the judgment was reached.

This case was followed by that of Williams v. Directors of School District, No. 6, where the plaintiff declared in case against the defendants for excluding his children from school. The record showed the defense relied on to be, that the plaintiff was quarter negro; and the mother of the children, his wife, a white woman. In this case, that of Polly Gray was relied upon and adhered to. Judge Lane, in giving the opinion of the court, says: “We think the term ‘white,’ as used in' the law, describes blood and not complexion, and are satisfied with the construction heretofore given. The plaintiff’s children are therefore white, within the meaning of the law.”

This case was followed by Jeffries v. Ankeny, et al.,11 Ohio, 372 — where the same question was raised — and the judgment in the case of Polly Gray reaffirmed and adopted; and this case, and that of Williams v. Directors, etc., supra, construed to hold that “ all nearer white than black, or of the grade between the mulatto and the white, were entitled to enjoy every political and social privilege of white citizens; that no other rule could be adopted, so intelligible and so practicable as this; and that further refinements would lead to inconvenience, and to no good result.” The cases of Thatcher v. Hawks, 11 Ohio, 376, and Chalmers v. Stewart, 11 Ohio, 386, reaffirm the same construction of the word “ white.” The same construction was again reaffirmed in the case of Lane v. Baker and others, 12 Ohio, 237, and in Steward v. Southard, 17 Ohio, 402. The next case, and it is the one upon which my brethren seem most strongly to have relied in arriving at the judgment in this case, is that of Van Camp v. The Board of Education of Logan, 9 Ohio, State R. 406. In this case the majority of the court held that the statute to provide for the re-organization, supervision and maintenance of common schools is a law of classification, and not of exclusion; and that children of three-eighths African and five-eigbths white blood, but who are distinctly colored, and generally treated and regarded as colored children by the community where they reside, are not as-of right entitled to admission into the common schools set apart under the act for the instruction of white youths. The act in question provides for the education of all the children within the’state; but in so doing divides them into two classes, white and colored,and imposes the duty of providing schools for both classes, though under different teachers, upon the same board of education. I have examined this case with great care, and I can find but one ground upon which the opinion of the majority of the courtis founded, viz: prejudice of blood and the present state of public feeling. This idea underlies the whole case, and a youth of five-eighths white is excluded from the white schools because he is regarded in the community where he lives as colored, and a prejudice exists toward his class. Read the opinion of a majority, and we will find no other principle controlling the court, or inducing the judgment. A more unjudicial ground was never taken by a court. It is not pretended that the children excluded were not “ white” within the authority of former decisions, but that as this was a law of classification, and not of exclusion, the prejudices of the community must control the law and determine to what school the child should be sent. He was white enough to be a freeman, and when of age to vote; but not white enough to attend the common school provided for white children. For this opinion I have no respect. From it the Chief Justice and Judge Sutliff dissented, the latter giving a most able and conclusive opinion exposing its fallacy and utter weakness. But, as bearing upon the question befere us, and to show that the principle involved in the case at bar was not involved, or regarded as affected by that decision, and to show the abundant caution with which the majority of that court trod upon this ground of mixture of blood, they take the precaution to say that “there is no such incongruity in excluding light mulattoes from the white schools, and permitting them to participate in elections as the counsel for the plaintiff seems to suppose.” Subsequent to this case, and what is now the ruling authority of Ohio, is that of Anderson v. Milliken, 9 Ohio State R. 568. This was an action by the plaintiff against the defendants, judges of an election, for the refusal of his vote. The father of the plaintiff was a white man, and the mother had an admixture of three-fourths white and one-fourth African blood, and it was unanimously held that persons having a mixture of African blood, but a preponderance of white blood, or being more white than black, and being otherwise qualified, are voters, and the adjudications of the courts from the case of Polly Gray down to, but not including Van Camp v. The Board of Education, which appears to have been referred to with no expression of approbation, are cited in support of the judgment. This authority has never been overturned, and is now the settled rule, and final judgment of the courts of that state upon this question. If I had not already extended this opinion beyond usual limits, I should be glad to refer to the case of Anderson v. Milliken at greater length. It occupies the full ground for which I contend, and unequivocally holds, and clearly demonstrates, that a preponderance of white blood makes the possessor white, within the meaning and letter of the constitution of the State of Ohio, which is the same as that of Michigan in this respect, and secures to him the full rights of citizenship.

I need hardly refer to the facts of the case at bar to show the absurdity of any other rule, or of the attempt by judicial action to fix an artificial line of demarkation between black and white. The very necessity of calling in Dr. Pitcher, and having an examination of Dean’s nose, to ascertain whether he had black blood in his veins, and thereby determine his right to vote, affords a sufficient commentary upon the rule my brethren have established. If this be the correct rule, we had better have the Constitution amended, with all speed, so as to authorize the election or appointment of nose’ pullers, or nose inspectors, to attend the election polls in every township and ward of the state, to prevent illegal voting.

I hold that a preponderance of blood decides the question of the right to vote under the Constitution, and that within the letter and meaning of that instrument, -Dean was white, and would have been, had he possessed much more African blood than he is shown to have had.