author: Peck, J. Sutliff, J.

text:
    Enos Van Camp v. The Board of Education of the Incorporated Village of Logan.
    1. The statute of March 14, 1853, “to provide for the reorgnization, supervis ion, and maintenance of common schools,” is a law of classification and not of exclusion, providing for the education of all youths within the prescribed ages, and the words “white” and “colored,” as used in said act, are used in their popular and ordinary signification.
    2. Children of three-eighths African and five-eighth 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 said act for the instruction of white youths.
    In error to the district court of Hocking county.
    On the 24th day of February, 1855, the plaintiff in error filed his petition against the defendants in error in the court of common pleas of Hocking county. The statements *of the petition, material to be here given, are, in substance, as follows:
    That the plaintiff is a resident householder and tax-payer, and head of a family in the incorporated village of Logan, and has in his family two white children over five and under twenty-one years-of age — one, his son, the other, his indented apprentice; that the defendants have established five schools in the village, employing six teachers who are paid out of the common-school fund; that on the 5th day of February, 1855, he applied to the defendants to have said two children admitted to said schools, which the defendants refused; to his damage in five hundred dollars, which he claims.
    The defendants in their answer, admit these statements of the petition, except that said children are white; as to which, they say that the plaintiff is a colored man, being of nearly one-half African blood, and being distinctly colored, and so understood and treated in society, and by community generally; that plaintiff’s wife is a colored woman, and that their son is a colored child, having considerable African blood and being distinctly colored, and generally understood to be and treated as such, in society and by community generally; and that plaintiff’s said indented apprentice is also distinctly colored, having nearly one-half African blood, and is understood and treated as a colored boy in society and by community generally. The defendants, therefore, deny that said children are white, but admit that they each have a small portion more white than black or African blood — say five-eighths white, and three-eighths African blood. The defendants also say, that the schools-established by them are for white children alone ; that the number of colored children in the district, including said children of plaintiff, has not at any time exceeded ten, and that the money raised on all the colored persons, has been by the defendants reserved to be appropriated for the education of said colored children; and that *no separate school for colored children has yet been instituted in the district.
    To this answer the plaintiff demurred, as being insufficient to bar his action. The district court, on appeal, overruled the demurrer, and rendered judgment against the plaintiff for costs. To reverse this judgment, a petition in error was filed in this court.

      Hunter & Daugherty, and J. JR. Groghan, for plaintiff in error.

      Henry JR. Saunders, for defendants in error.
   Peck, J.

The only question presented, as arising upon the demurrer to the answer of defendant below, is, whether, since the passage of the act of March 14, 1853 (Swan’s Stat. 836), to provide for the , organization, supervision, and maintenance of common schools, “ children of five-eighths white and three-eighths African blood, who are distinctly colored and generally treated and regarded as colored children by the community where they reside,” although in all other respects admissible, are, as of right, entitled to admission into the schools set apart under that act for the instruction of white youth ? The plaintiff in error insists that his children, though in part of African descent, being more than one-half of white blood, are, under the law and the uniform decisions of this court, to be regarded as white, and wero therefore wrongfully excluded by the defendants in error from the common schools of the incorporated village of Logan. Prior to 1848 there was not any legislative provision in Ohio for the education of any but the white youth resident in the various districts. Most of the previous statutes — and they are quite numerous; — merely make’ provision for the instruction of the white youth, and exempt the property of blacks and mulattoes from taxation for school purposes, while some, like the act of February. 10, 1829, in express terms, exclude blacks and mulattoes *from the schools. The act of February 24,1848 (2 Curwen Rev. Stat. 1428), provided, for the first time in Ohio, for the education of colored children, as such, directing the levy of a tax for that purpose upon the property of colored persons, the organization of colored school districts and the appropriation of the tax so levied to the support of separate schools for colored children, if objection was made to their admission into white schools, but prohibited the application of any part of the taxes levied upon the property of the whites, to the support of such colored schools, unless the whites assented thereto. This law, which was very defective and inefficient, was repealed in less than a year after its passage, by the act of February 10, 1849 (2 Curwen Rev. Stab. 1465), which also provided for the organization of colored schools and was complete and effective in its details, but like the law it repealed, appropriated no other funds for the support of the colored schools, save those collected from the property of colored persons.

The law of 1849, continued in force until repealed by the law of March 14,1853, which, conceived in a more liberal and patriotic spirit, not only provides for the education of colored children and imposes the duty or organizing separate schools for them, upon the board of education of the particular locality, but gives to the colored youth their full share, in proportion to numbers, of the common-school fund, and no longer restricts them to the miserable pittance collected from the colored tax-payers ; thus carrying out what Chief Justice Hitchcock, in 19 Ohio, 198, had intimated as the true policy, “ that the white and colored youth should be placed in separate schools, and the school fund should be divided between them in proportion to their numbers.”

This act of 1853, unlike some of the preceding legislation, looks to and makes provision for the education of all the children within the state (section 63) ¡ — children of all races and shades of color. 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. The law, then, is one of classification and not of exclusion. All the youth, within the prescribed ages, must fall within the one class or the oth er. All are to bo instructed and to participate equally in the public fund, and the share of one class can never be diverted to the instruction of the other. It is true, that where the number of colored youth is too small to justify the organization or the continuance of a school for colored youth, such school ■must be temporarily delayed or suspended; but this is no more than might occur with the other class under similar cieumstances. In determining what is to be understood by the terms “white” and “ colored,” as used in this act, we may look to the state of things existing at the time, the evils complained of, and the remedies sought to be applied. For nearly two generations, blacks and mulattoes had been a proscribed and degraded race in Ohio. They were debaiTcd from the elective franchise and prohibited from immigration and settlement within our borders, except under severe restrictions. They were also excluded from our common schools and all means of public instruction — incapacitated from serving upon juries, and denied the privilege of testifying in cases where a white person was a party. It would be strange, indeed, if such a state of things had not increased,.in the present goneraation, the natural repugnance of the white race to communion and fellowship with them. Whether consistent with true philanthropy or not, it is nevertheless true, that in many portions, if not throughout the state, there was and still is an almost invincible repragnance to such communion and fellowship. It is also to be borne in mind, that a class had grown up among us, which, though partly black, had still a preponderance of white blood in their veins, and that the courts, influenced in some degree by the severe and somewhat p>enal character of the restrictions as to blacks and mulattoes, had held that such persons were *not only entitled to vote at elections, and testify in our courts of justice, but were also admissible into the schools for white children. It is notorious that these decisions, especially the last, did not receive the hearty approval of the state at large. The prejudice of ages could not be.dissipated by one or more judicial decisions, and the frequent suits brought to enforce such admission, evidence such feeling on the part of young and old.

Under this state of things the act of 1853 was enacted. Three objects seem to have been especially in view. To divide all the youth of the state, for educational pmrposes, in two classes, to provide more effectually for the education of both classes, and to require both classes to be separately instructed. To which of these classes do-the children of the plaintiff in error belong — “white” or “colored?” They are not in the ordinary, if they are in a legal sense, white. The demurrer admits that they are, in fact, if not in law, colored children. Our standard philologist, Webster,, defines “colored people” to be “black people, Africans, or their descendants, mixed or unmixed.” Such is also the common understanding of the term. A person who has any perceptible admixture of African blood, is generally called a colored person. In affixing the epithet “ colored,” we do not ordinarily stop to estimate the precise shade, whether light or dark; though where precision is desired, they are sometimes called “ light-colored,” or “ dark-colored,” as the case may be. If we look at the evils the law was intended to remedy, we shall arrive at the same result. One of the evils undoubtedly was the repugnance felt by many of the white youths and their parents to mingling, socially and on equal terms, with those who had any perceptible admixture of African blood. This feeling or prejudice, if it be one, had been fostered by long years of hostile legislation and social exclusion. The general assembly, legislating for the people as they were, rather than as, perhaps, they ought to have been, while providing for the education and consequent ultimate ^elevation of a long-degraded class, yielded for the time to a deep-seated prejudice, which could not be eradicated suddenly, if at-all. Such an arrangement, in the present state of public feeling, is far better for both parties — for the colored youth as well as those entirely white. If those a shade more white than black were to be forced upon the white youth against their consent, the whole policy of the law would be defeated. The prejudice and antagonism of the whites would be aroused, bickerings and contentions become the order of the day, and the moral and mental improvement of both classes retarded. It would seem then, from this examination of the law of 1853, and the circumstances under which it was passed, that the 'words 'white ” and “ colored,” as used in that act, were both used in their ordinary and common acceptation, and that any other construction would do violence to the legislative intent, and perpetuate the very evils that act was intended to remedy. Such was also the construction which the act, upon its passage, received in many portions, if not throughout the state. The colored population, whether more or less than mulatto, affiliated with the blacks. Schools wore orgai ized, and a wholesome rivalry inaugurated between the two classes.

But it is claimed that the word “ white,” before it was used in the act of 1853, had, by a series of decisions of this court, been held to include all persons, though in part of African descent, who are more than half white, and that the legislature must be presumed to have used it in that enlarged sense. The decisions referred to are Polly Gray v. The State, 4 Ohio, 353; Williams v. School Directors, etc., Wright, 579; Lane v. Baker et al., 12 Ohio, 237; Jeffries v. Ankeny et al., 11 Ohio, 372; and Thacker v. Hawk, Ib. 376.

The case of Polly Gray arose under the law in force at the time, prohibiting blacks and mulattoes from testifying in cases whore a white person was a party. The eases in Wright, and in 12 Ohio, were cases arising imder the school *laws in force prior to 1843, and the two cases in 11 Ohio are cases where persons of more than half white blood had been debarred from voting at elections. The opinions are very brief, and in none, save the first two, do the court assign any reason for the opinion, except the authority of the decision in the Polly Gray case. The statutes and the constitutional provisions as to voters, under which the questions arose, are disabling and exclusive in character, and it is apparent, from what is said, that the tendency and effect of the provisions greatly influenced the decisions. In the case of Polly Gray the court remark, that the statute defines only three classes of persons, whites and blacks and mulattoes, and say that they arc not willing to make a third class, nor define the degree of darkness that should exclude. And in the Williams case they speak of the “ shabby meanness ” of taxing them for the support of common schools, and excluding their children from the benefits; and also say that color-is very unreliable, and that it is blood and not color that incapacitates. It is obvious that if the statutes in those cases had excluded colored persons or children, as well as blacks and mulattoes, a different result would have been attained. As between whites and blacks- and mulattoes, they might well limit the disability to the mulatto; but if colored had been used, then all less than white would have been excluded. There' is no margin between white' and colored ; and all that are not white are colored; and in such case, the court would have been required to do what they, in the Williams case, refused — to consider color as well as blood. Not complexion alone, but complexion and blood combined. The test of exclusion would have been — is the applicant of mixed blood, and is that admixture apparent? If the word “white,” in the law of 1853, was used in the same connection as in the laws under which those decisions were-made, it would be fair to presume that the legislature intended it. to bear the same relative signification; but where they drop the words “blacks and mulattoes,” and Aplace, in opposition to white, a term which embraces all less than pure white, no such presumption can fairly or properly arise. That the legislature intended that the word “ colored,” in the law of 1853, should bear its ■ordinary and popular signification, is also apparent from the fact that in section 5, of the law of 1849, they qualified and restricted its signification for the purposes of that act; but in the law of 1853, which repealed the law of 1849, and relates to colored youth, they did not re-enact the restriction, though the necessity still existed, if the limitation was intended to apply thereafter.

These decisions in regard to the right of persons more than half white to testify, and to attend the common schools, have had their ;-day, and accomplished their purpose, and we do not seek to disturb them. The statutes to which they apply, have been repealed, and the construction we place upon the act of 1853 does not conflict with them. It is a law of classification, and not of exclusion, intended and designed to place in one school all the white youth, and in the other, all who have any visible taint of African blood. That the legislature have the power thus to classify tho scholars, even when all are undeniably white, no one will question. It might, perhaps, have been better if some further and more definite provision had been made for the education of colored youth, in districts in which the number is so very limited, as it appears to be in the ■village of Logan. That, however, is a matter for the consideration of the legislature, and not for tho judiciary.

We do not undertake to decide whether the decisions as to the right to vote under the old constitution, above referred to, applyto ■similar cases arising under the new. It will be time enough to determine their applicability to the new constitution, when the ■question is before us. There is no necessary connection between the two questions; nor is there such an incongruity in excluding light mulattoes. from the white schools, and permitting *them to participate in elections, as the counsel for the plaintiff seem to suppose. If the law excluded them altogether from the means of •education, it might be somewhat incongruous to permit them to participate in tho elections; but when their education is enjoined «.nd the means provided, though in separate schools, no such incongruity can arise.

A majority of the court then held that colored youth of the description stated in the answer of the defendants, are not, as of right, entitled to admission into the schools, organized and set apart under the act of March 14, 1853, for the instruction of white-youth.

Judgment affirmed.

Scott and Gholson, JJ., concurred.

Brinkerhofe, O. J., and Sutliee, J., dissented.

Sutliff, J.

I am unable to concur in the judicial construction, given in this case, by my brethren, to the words “ colored children,” as used in the statute under consideration.

There are, in my opinion, several reasons, each of which seems strong against their holding in the case before us.

In the first place, I remark, that caste legislation, the inveterate-vice of absolute governments, is inconsistent with the theory and spirit of a free and popular government like ours ; asserting in its-bill of rights the equality of all men. A free government like ours must be presumed, so far as practicable, to avoid class legislation ; and rather to trust and favor the natural liberty and right of individuals to form and regulate their own social circles and classification according to their respective predilections and prejudices.

In the second place, it is quite obvious, if it should be deemed proper and consistent legislation for a free state to organize the people into classes, that it is impracticable to any considerable extent, without encountering inextricable ^difficulties. This difficulty will be encountered, whether the basis of the classification be-a difference in races, religion, language, color, or any physiological peculiarities. A strict construction against all unnecessary extent of such legislation should, therefore, be preserved.

It is sufficient to barely suggest these considerations, as they have doubtless had their influence upon the legislation and adjudication upon this subject, which have heretofore obtained in this state.

The main reason, however, and the one I rest my dissent principally upon, is the former construction given, and as I think well established, to the little of class legislation which has obtained in this state.

The wisdom and beneficence of the law under consideration is not in this case called in question; the line of demarcation between the two classes is.

INor is the popular or philological meaning of the word “ colored” now under consideration; but the legal construction of the words “colored” and “white" is necessarily involved in the case, and •submitted for our adjudication.

How then stands the law upon this single question?

On the 7th of March, 1848, the legislature of this state passed the first law for the establishment of separate schools for colored • children. That law is entitled “ An act to provide for the establishment .of common schools for the education of black and mulatto persons, and to amend the act entitled 1 an act for the support and better regulation of common schools, and to create permanently the office •of superintendent,’ passed March 7, 1838, and the act amendatory thereto, passed February 4, 1848.”

It is provided in that act as follows: “Sec. 1. That all such property belonging to black or colored persons, as is liable to taxation, when owned by white persons, be taxed for school purposes, and the taxes thereon assessed, be collected in the same manner as similar taxes are by the act to which this is an amendment, a separate account of which shall, be kept by the several county auditors, and *shall be paid out for the support of schools for black or colored persons in any district in which such schools may be organized ; but in any such district in which the children of black or colored persons are permitted to attend the common schools with the children of white persons, then such fund shall be added to the common-school fund of the district from which it was collected, and paid over to the treasurer of said district on the order -of the directors of said district.” 2 Curwen’s Stat. 1428. In like manner in each of the ten sections of this act (of March 7, 1848), the words “ black or coloi'ed persons,” “ black or colored children,” and “black or colored tax-payers,” are used as synonymous, and contradistinguished from white persons, white children, and white tax-payers. And this use of the words “ black or colored,” in the . act, in connection with the words “ black and mulatto persons,” used in the title of the act, and the established interpretation at the time, of the words “ black and mulatto,” would all go clearty to show that the legislature, in that act, used the word “ colored ”.as sjmonymous with “black and mulatto.”

But, as if to prevent the possibility of a doubt upon the subject, the legislature, by the act of February, 1849, revising the act of 1848, clearly expressed what they had in the preceding act so plainly indicated. It is provided in the act of 1849 as follows: Section 5. “ The term colored, as used in this act, shall be construed as being of the same signification as the term black or mulatto,’ as used in former acts.” 2 Ourwen’s Stat. 1466.

I deem it important to refer to these prior acts, and especially to the act of Februarj1- 10, 1849, for the purpose of better understanding the true construction of the statute of March 7, 1853, now under consideration. I take it for granted that the word “colored,” as used in the act of March, 1853, must retain the-same construction as under the act of February, 1849, unless the legislature have clearly expressed in the latter statute an intention to ^change the construction. For it is a well-settled rule that in the revision of statutes, neither an alteration in phraseology, nor the omission or addition of words in .the latter statute shall be' held necessarily to alter the construction of the former act. And the court is only warranted in holding the construction of a statute, when revised, to be changed, when the intent of the legislature to make such change is clear, or the language used in the new act plainly requires such change of construction. And such, indeed, has been the holding of this court at the present term, in the case of Ash v. Ash and others. See also to the same effect the cases of Taylor v. Delancy, 2 Caine’s Cases, 143; Gaffey v. Colvill, 6 Hill, 574, and other authorities.

What, then, was the meaning of the words “colored children” .and “ colored persons,” in the act of 1849 ? The answer is given, as we have already seen, by section 5 of that act, which provides that the term “colored,” as used.in that act, shall have the same ■signification as “ black and mulatto,” used in former acts.

We have, then, only to ascertain what was the then well understood and accepted signification of “black and mulatto,” to have the definite and certain meaning and signification of the word “ colored,”-as used in the act of 1849, and consequently in the act of 1853, now before us for construction.

As early as January, 1804, the legislature passed an act subjecting black and mulatto persons to certain disabilities in this state. See 1 Chase’s Stat. 393. And on the 27th of Januai’y, 1805, by way of amendment, the legislature provided, among other things, by section 4, that no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record or elsewhere, in this state, in any case depending, or matter of controversy, where either party to the same is a white person, or in any prosecution which *shall be instituted in behalf of the state against any white person.” 1 Chase’s Stat. 556.

This section came first under the consideration of the court in bank of this state, in the case of Polly Gray v. The State of Ohio, 4 Ohio, 353. The question made in that case was, whether a person “ of a shade of color between the mulatto and white,” was to be regarded as a “white person.” within the meaning of that statute; and the question was resolved affirmatively. The court say, in that case: “ 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 wo 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 sot out any other plain and obvious line. Color alone is* insufficient.” . . . “ 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 ascertaining the degree of duskiness which renders a person liable to such disabilities.” Thus the court, in this, their first judicial construction of the words “ white person,” as contradistinguished from “ black or mulatto” persons, refused to extend the meaning of “black or mulatto” (which they properly term the disabilities of the statutes) further than its letter requires.

The word “black” is well understood to mean the negro; and the word “mulatto” is equally well understood to denote the offspring of a white person and a negro, and as not expressive of any other class of persons. The letter of the statute confines the meaning of the words “black and mulatto” to these two classes; and the *court thus refused, more than a quarter of a century, ago, to extend the meaning of these words of caste beyond the letter of the law. And under the distinction of classes so expressed by the statute, the court expressly includes the “ shade of color between the mulatto and white ” in the general class of white persons.

I propose next to show that this judicial construction, thus early given by the Supreme Court of this state to the word “white,” as contradistinguished from “black” and “mulatto,” has never before been departed from, but has been heretofore again and again affirmed.

The act of March 10, 1831, to provide for the support and better regulation of common schools, provided, by section 1, that a fund should thereafter be raised in the several counties of the state, in the manner pointed out in the act, for the use of the common schools, for the instruction of the white youth of every class and grade, without distinction. Section 34 of the act provided, “that when any appropriation shall be made by the directors of any school district for the payment of a teacher, the school in such district shall be open to all the white.children residing therein.” 3 Chase’s Stat. 1867.

The case of Williams v. Directors of School District No. 6, etc., in Hamilton county (Wright, 578), arose under this act. The plaintiff declared, in this case against the defendants, that he was and had been, for the last five years, a citizen and resident householder and tax-payer of the district, and that he had five children over five years old, which he sent to the school, and who were excluded and denied admittance. Plea, not guilty. The record showed the defense relied on to be, that the plaintiff, their father, was one-quarter negro, and their mother, his wife, a white woman. In delivering the opinion of the court, Judge.Lane used the following language: “ This court, in Gray v. Ohio, determined that persons nearer white than a mulatto, or half-blood, were entitled to the privileges of whites. The color of the party does *not sufficiently mark the distinction between the two races of people.” . . . “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, therefore, are white, within the meaning of the law, though the defendants have had the shabby meanness to ask from him his contribution of tax, and exclude his children from the benefit of the schools he helped to support.”

Again, in the case of Jeffries v. Ankeny and others, 11 Ohio, 372, at the December term, 1842, the same question came before the Supreme Court of this state. The plaintiff brought suit against the defendants as trustees, for refusing his vote. The defendants refused to receive the vote of the plaintiff, who was a quarter Indian, being of opinion that he was a person of color, and not a “ white male inhabitant” within the meaning of the constitution of the state. Art, 4, sec. 1. The chief justice in delivering the opinion •of the court says: “We regard this matter as clearly settled by the interpretation which the expression in the constitution has received by this court on the circuit, and in bank. In 1831, in the ease of Polly Gray v. The State of Ohio, and in 1833, in the case of Williams v. School Directors, it was held that in the constitution, and the laws upon this subject, there were enumerated three descriptions of'persons, whites, blacks, and mulattoes; upon the two last of whom disabilities rested; that the mulatto was the middle term between the extremes, or the offsprings of a white or black ; that all nearer white than black, or of the grade between the mulattoes and whites, were entitled to enjoy every political and 'social privilege of the white citizen; that no other rule could be adopted so intelligible as this; and that further refinements would lead to inconvenience, and to no good result.”

At the same term of the court, in the case of Chalmers v. Stewart, 11 Ohio, 386, the same construction of *the word “ white ” was reaffirmed. Judge Wood, in delivering the opinion of the court in the case, uses the following language: “Who white children are, has in principle been determined by this court at the present term. Thacker v. Hawk et al. The majority, or predominance of blood, either black or white, carries with it conclusive evidence of the qualifications or disqualifications conferred or imposed by our statutes.”

At the next term of the court (December term, 1843), the same •question was yet again before the judges for their reconsideration, in the case of Lane v. Baker and others, 12 Ohio, 237. The plaintiff brought his action against the defendants as school directors, for •excluding his children from a common school. The defense relied upon was that the children, so excluded, were of negro and Indian -blood, though more than half white. The question arose under the .act for the support and better regulation of schools, etc., passed March . 7, 1838. But the provisions of that act did not differ substantially from that of the preceding acts in regard to the distinction made in favor of “ white ” children. The 1st section of the act provided that a fund should thereafter be provided as specified in the act “for the education of all the white youth in the state in certain branches •of learning.” The 2d section provided for levying a tax upon the .taxable property in each county Q‘the property of the black and mulatto persons excepted”), to constitute a fund for such common schools. The court say the case depends upon the same principles with that of Jeffries v Ankeny et al., and affirmed their previous decisions by giving judgment for the plaintiff. And although in two of the preceding cases, to wit, Jeffries v. Ankeny et al., and Thacker v. Hawk et al., Judge Head dissented, he seems to have acquiesced in this last case of Lane v. Baker et al.

The courts, I believe, have uniformly adhered to the rule expressed in Gray v. The State, in relation to the disabling statutes toward black ” or “ mulatto ” persons. *Thus is the case of Jordan v. Smith, 14 Ohio, 199, the plaintiff, a white person, had brought a suit against a negro, and to sustain his cause of action, introduced the evidence of a black, which was objected to by the defendant’s counsel. Judge Hitchcock, in delivering the opinion of the court, thus remarks upon the disabling statute of 1807: “ The law says ‘ no black or mulatto person or persons shall be permitted to be sworn or give evidence ’ where either party is a white person. 1 Chase, 556. But it is said this statute confers upon a white man a personal privilege. He maj1- at his election permit or refuse the evidence of a black witness, and that this black opponent has no right to object to a witness of his own color. Such is not the law. By positive statutes, the black man is an incompetent witness; and I have yet to hear that one party to a suit has any better right than the other to object to a witness on the ground of his competency,” thus adhering to a strict construction of those disabling statutes.

In the case of Steward v. Southard, 17 Ohio, 402, Judge Birchard, in delivering the opinion of the court at the December term, 1848, took occasion to refer incidentally to the previous decisions of the court upon this subject, with an expression of approbation. He says of the case of Lane v. Baker, “ the only thing decided in that case was that youth of more than half white blood are entitled to the benefit of the common-school fund,” and that he concurred in that decision.

Other cases might probably be referred to, showing, in like manner, that from the time of the first statute enacted in this state (January 5, 1804), in relation to “black and mulatto persons,” down to the present time, the Supreme Court has uniformly maintained, and steadily adhered to, the same judicial construction of the word 11 white ” as contradistinguished from “ black and mulatto,” or colored persons.

And this holding of our courts I regard as strictly in *accordance with the general rule applicable to such statutes. Statutes which are in restraint of natural liberty, or which derogate in any other manner from the general law, and laws which have an ap- , parent hardship in them, are to be interpreted in such a manner as-not to extend beyond what is clearly expressed in the law to any consequences to which the law does not necessarily extend.

In the passage of the act of February 10, 1849, the legislature,, as well as in the preceding act of March 7,1848, evidently intended to express their approval and acceptance of the long and uniform judicial construction given in this state to the laws descriminating between “black or mulatto" persons on the one hand, and white persons upon the other. Hence, in the introduction of the word “colored ” in that act, for brevity, in the place of the words “black or mulatto,” as used in former acts, it is especially provided by .section 5 that the term “colored" as used in the act, shall be regarded of the same signification as the term “ black or mulatto." And the act of 1853, now under consideration, uses the words-“colored children” in the same sense as used in the law of 1849. This is evident from the language of the act.

It may also, in this connection, be remarked that the constitutional convention of 1850, well knowing the construction so given the word “ white” in the old constitution, and the legislation under it, accepted and approved that construction by inserting the same-word “white” citizen in the new constitution. See art. 5, sec. 1. See also the debates in the constitutional convention ujoon this subject.

Nor can I perceive how the fact of the construction thus given to-the words “colored” and “ white,” failing to conform in all cases to the line of caste as actually existing, constitutes any necessity for now changing such long-established construction.

An amendment of the school law by a provision allowing any of either class, upon permission first obtained and *on due notice given, to be taxed with and attend the schools of the other class, would obviate such objection. The line of caste would thus become to some extent self-adjusting, to meet the actual social classification of the youth, as existing in fact in every district. But it seems to me alike unwise and whollj’ out of character with the progress, the general intelligence, and liberality of the age at this time — more than ten years after the repeal of tho “black laws,” so called, and more than half a century after a liberal and humane interpretation of those disabling statutes has been inaugurated, and constantly ever since then maintained — to overrule all the decisions of the many able and wise judges who have preceded us, and to give an extent and effect to those disabling statutes, which this court has always heretofore, time and again, refused to •do. For these reasons I utterly dissent from the opinion expressed -by my brethren in -this case.


source: Caselaw Access Project

author: *Brinkerhoff, C. J.

license: Public Domain

text:
    Alexander M. Burgess v. Isaac Everett.
    The benefits of the 8th section of the act of March 23, 1850, “ to exempt the homestead of families from forced sale on execution,” etc., extend and are confined to a “resident of Ohio, being the head of a family, and not the owner of a homestead,” and who is the owner of one or more of three classes of chattels, to wit, mechanical tools, a team, and farming utensils, and who is holding such articles of property, whether belonging to one or-more of these classes, in good faith, for use as instruments of labor, and means of support for himself and family.
    In error to the common pleas of Hocking county.
    The case is sufficiently stated in the opinion of the court.

      J. Tt. Groghan, for plaintiff in error.

      Saunders & Wright, for defendant in error.
   *Brinkerhoff, C. J.

This is a petition in error, filed here by leave, to reverse the judgment of the court of common pleas ■of Hocking county. The plaintiff in error, who was also plaintiff below, brought his action against the defendant in error, alleging in liis petition, in substance, that he was a resident of Ohio,, the ■head of a family, and not the owner of a homestead; that he was “the owner of a team of horses, consisting of one black mare and one sorrel mare, which he had owned and used for the support of Ms family, and which was the sole and only team he owned;” that this team was levied on and sold by the defendant, as a constable, •under the authority of several executions against him, and in the hands of the defendant as such constable. “That at the time the •defendant took said chattel property the plaintiff demanded that the same be set off to him by the defendant, as snch officer, in lieu of a homestead, which request was then and there refused by the-defendant.” He' avers that said property was unlawfully and wrongfully sold by the defendant, and that he sustained damages1 thereby to the amount of three hundred dollars, for which he demands judgment. To the petition the defendant demurred, on the-ground that it did not state facts sufficient to constitute a cause of action. On hearing, the demurrer was sustained, exception taken,, and this ruling of the court is here assigned for error.

The question thus presented is this: "Was this team of horses,, under the circumstances stated in the petition, exempt from execution under the provisions of the eighth section of the act of March 23, 1850, “to exenpt the homestead of families from forced sale on execution,” etc.? 2 Cur. Rev. Stat. 1520.

That section is as follows :

“ That it shall be lawful for any resident of Ohio, being the head' of a family, and not the owner of a'homestead, to hold exempt from execution or sale as aforesaid, mechanical tools, or a team and farming utensils, not exceeding *three hundred dollars in value, in addition to the amount of chattel property now by law exempt.”

The language of the statute, in its literal signification, is certainly very broad and sweeping in its provisions, and would exempt from execution the “ team ” of “ any resident of Ohio, being the head of a family, and not the owner of a homestead,” whether that team was •kept or intended for productive use, as an article of trade, or for purposes of pleasure merely; and without reference to the past, present, or intended occupation of the debtor, or the use which he has made, is making, or intends to make of the team.

But the majority of the court are of opinion that this literal interpretation would not accord with the true intent and meaning of the legislature, and that in order to arrive at the true intent and meaning, the words of this section must be interpreted in a sense somewhat qualified and restricted; and this from several considerations.

To interpret the language of this section in its broad and literal sense, would, it seems to me, be imputing to the legislature a manifest absurdity. In the first place, it is evident that it was not the intention of the legislature to allow every person described in this section to hold, by virtue of its provisions, property of any and every description, not exceeding three hundred dollars in value, exempt from execution, in addition to property before exempt. The language of the section indicates no such intention ; and had such been the intention, it would have been so easy and so natural directly so to declare, that it surely would have been done. It is only the owners of mechanical tools, team, or farming utensils, who are thus favored. And why make them the special objects of legislative favor in this respect ? But one reason can be found for it, as it seems to me, and that reason is readily dednciblc from an inspection of the entire statute, and of statutes then and still in force in relation to the same *subject-matter. It was to enable the mechanic, the teamster, or the farmer, or whosoever else had these specified articles of property, and was using, or in good faith was intending to use them, as instruments of labor, as means of support for himself and the family of which he was the head, to do so. To discard such a qualification of the language of the statute, would bo to hold, that the merchant may hold mechanical tools, a team, or farming utensils, all for purposes of trade, and that the common gambler may hold his team of gay horses exempt from execution, for the mere pleasure of his worse than worthless life, while an honest laborer, or man of legitimate and useful business, not happening to be the owner of these favored articles, would be deprived of all exemptions, except such as were provided by pre-existing laws. Such resrrlts are equally abhorrent to our ideas of equal justice, and inconsistent with the evident policy of our laws on this subject. "We can not believe such to have been the intention of the legislature.

From the proceedings which appear in the record subsequent to the ruling complained of, as well as in that ruling, the court below seems to have been of opinion, that the exemption of a team provided for in this section of the statute, applies only in favor of persons engaged in the business of agriculture. The language of the statute being, “ mechanical tools, or a team and farming utensils,” and the words team ” and farming utensils ” being joined by the copulative conjunction, without anything in the punctuation to indicate their separation in the mind of the draftsman, the only serious doubt which the majority of the court entertain is, whether the legislature did not intend to confine the benefits of the section to two classes only, the mechanical and the farming. But, on the whole, as before indicated, we are of opinion that it includes the teamster as well. The presence or the absence of punctuation is of no weight in the interpretation of statutes — it being often, if not generally, the work of engrossing clerks of the legislative body. And hero, the *mere placing of a comma after the word “ team,” would at once indicate to the mind of the reader a separation of the exempted articles into three instead of two classes. And, looking to the general scope and policy of our legislation on this subject, it seems to us reasonably apparent that it was intended to save to the head of a family his instrumentalities of productive -labor. Mechanics, transport, and agriculture, are the three great departments of productive industry; they are alike necessary, and alike pursued in almost every neighborhood of every civilized community; and unless compelled to do so, we are unwilling to adopt a construction which shall descriminate between them.

We therefore bold, that if a debtor bring himself fairly within either one, or two, or all three of these classifications, he is entitled to the exemptions named in this section.

But, whether we interpret this section in its broadest literal signification, or restrict its application in the manner for whichT have contended, we are all of the opinion, that the'ruling of the court, in sustaining the demurrer to the petition, was erroneous. We think that the allegations of the petitiofi demurred to, construed with the liberality which the code (sec. 114) prescribes, and the proof which might have boon introduced under it, might have brought the plaintiff fairly within the provisions of the statute when limited in its application, as a majority of the court think it ought to be. It' is true, the averments of the petition as to the plaintiff’s use of the team in question, are somewhat indefinite and uncertain; but the remedy for this was by motion to compel the plaintiff to !! require the pleading to be made definite and certain by amendment,” (code, see. 118), and not by demurrer.

The judgment in the case, and the order of the court below sustaining the demurrer to the petition, will be reversed, and the cause remanded for further proceedings.

Scott, Suture, Peck, and G-holson, JJ., concurred.


author: Sutliff, J.

text:
    *Lewis D. Webb’s Administrator v. Anna Roff and others.
    A, being in embarrassed circumstances, and having received advancements occasionally from B, his mother, voluntarily executed his note to her for the amount, and secured its payment -by a mortgage on his real estate. A afterward paid off all his creditors except the mortgagee, and some years thereafter died insolvent. The mortgagee assigned the note and mortgage to A’s children, in consideration of love and affection. On petition by A's administrator to set aside the mortgage as fraudulent, and to sell the lands to pay debts: Held—
    1. That a mortgage is a conveyance within the statute of frauds and perjuries of 1810.
    :2 That a conveyance, within the meaning of the statute, is void only as against • creditors.
    3 That a conveyance made without consideration, by one indebted at the time, can not be avoided by subsequent creditors, without showing actual fraud or a secret trust for the benefit of the grantor.
    In error to the district court of Miami county.
    The plaintiff filed his original petition in the court of common pleas, stating that the intestate died seized in fee of certain lands particularly described, situate in said county, and which, owing to the insufficiency of the personal estate for that purpose, it was necessary should be sold for the payment of the debts of the intestate mentioned in the petition. It is further stated in the petition that said lands were subject to a certain mortgage executed by the intestate to Anna Roff, his mother, and duly recorded to secure to her the payment of his promissory note of one thousand dollars; and which had been by her assigned, with the mortgage, in consideration of love and affection, to the children of the intestate, and that said note and mortgage were designed by the intestate fraudulently to cover up and protect his projierty from his creditors; ■and that said note was in fact given without any consideration, and not designed to be collected. The petition *asks that said mortgage be ordered by the court to be canceled, and the lands sold for the purpose of paying other debts.
    The heirs of the intestate, and Anna Roff, are made parties defendant.
    The answer denies that there are any debts of the estate existing, •except those contracted by the intestate after the making of the note and the execution and recording of the mortgage, and denies that the note and mortgage were made to defraud the creditors of the intestate.
    The case was tried in the district court on appeal, and the petition dismissed.
    A bill of exceptions sets forth the evidence in the case.
    It appears from the record that the promissory note and mortgage were executed by the intestate on the 18th day of February, 1845, the note being made payable on or before the 17th day of September, 1848, and that the mortgage was duly recorded in March, 1845 ; that the intestate had, previous to that time, received money and property from his mother; that she had at different times since 1825, let him have money and property to the probable amount of $600 or $700; that at the time of the execution of the note and mortgage the intestate was in the possession oí property to the amount of some $2,000 and upward, but was in somewhat embarrassed circumstances; that he owed some debts about home, which he said ho could readily meet, but expressed some apprehension of being troubled by a debt of $400 which ho owed in Yirginia; fhat at the time of talking about the Yirginia debt he spoke of owing his mother, and of making a deed or mortgage to her; and afterward said he had given her a mortgage. She testified that she had not expected to get the amount advanced to him, but that he saw fit, voluntarily, to give her the note and mortgage for what she had so advanced; and that she had, without any other consideration than that of love and affection, about the time of *the death of her son, assigned the note and mortgage to his children.
    It was in proof that at the execution of the deed a receipt was written upon it to be subscribed when satisfied; and at the tidal it was proved that the same appeared to have been subscribed and the signature erased; and that from some vestiges of the letters remaining, the name might have been that of the mortgagee.
    Yarious conversations of the intestate in relation to the mortgage, after its execution and shortly previous to his death, were also given in evidence, in which he expressed anxiety that his children should be provided for. But these conversations having been held in the absence of the mortgagee, need not be here more fully stated.
    The plaintiff’s witnesses testified that the intestate was always esteemed a very honest man.

      It was proved on the part of the defendants that the mother at one time advanced to the intestate something over $200 in part payment of the purchase money due from him for the premises mortgaged, he having bought the same unimproved for $500.
    The proof also shows that all the debts of the mortgagor existing-previous to the execution of the mortgage were fully paid in his-lifetime.
    The intestate is proved to have had a somewhat expensive family of seven children to support; and to have been an invalid for the two or three last years of his life; and that he died March 30,1852, insolvent.
    The administrator proves that all the property, including the lands mortgaged, which sold for $1,500, will not pay more than seventy-five cents on the dollar to the creditors of the intestate.
    At the trial, upon the proof made, of which the foregoing is a sufficiently full statement, the court gave judgment in favor of the defendants and against the plaintiff. The plaintiff thereupon filed a motion for a new trial, and ^assigned for cause that the decision was against the law and the evidence. But the court overruled the motion.
    The plaintiff in error asks this court to reverse the judgment of the district court, for the reason that said court overruled his motion for a new trial, and rendered judgment in the case contrary to-law and evidence.

      Johnston & Jones, for plaintiff in error.

      Morris & Smeltzer, for defendants in error.
   Sutliff, J.

It has always been held under the statute of frauds-in this state, that a conveyance of land made to defraud creditors, is not necessarily void between the parties. Such a conveyance is only void as against creditors. Burgett v. Burgett, 1 Ohio, 469; Lessee of Douglass v. Dunlap, 10 Ohio, 162; Crumbaugh v. Kugler, 2 Ohio St. 373. By the common law and the statutes of Edward-III. and Henry Til., as well as under the statute against fraudulent deeds, 13 Eliz., chap. 5, conveyances to defraud creditors were not held absolutely void. They have always been considered binding on the parties.

, The mortgage in this case is to be regarded as a conveyance although a conditional one, and if fraudulent, equally subject to the-•common law and statutory law applicable to absolute conveyances. Lancaster v. Dolon, 1 Rawle, 231; Presbyterian Congregation v. Wallace, 3 Rawle, 130; Ledyard v. Butler, 9 Paige, 132; Lewis v. Lewis’ Heirs, 3 B. Mon. 345.

The defendants, in the first place, deny that any debts or liabilities of the intestate, at the time of his executing the mortgage, remained unpaid at the time of his death. And the proof would .•seem very clearly to sustain this averment. But the sufficiency of that fact alone to constitute a good defense in such a case, has, it is believed, never been determined by any reported case in this state. In the cases of Upton v. Bassett (Cro. Eliz. 445), and in Twine’s *case (3 Coke, 80), it was agreed by the judges “that by the •common law, an estate made by fraud should be avoided only by him who had a former right, title, interest, debt, or demand.” And •Sir Edward Coke seems to have regarded the statute against frauds, 13 Eliz., chap. 5, which he terms a right profitable statute,” as ■only expressive of the common law. Co. Litt. 2906. The same •opinion is expressed by Lord Mansfield, 2 Cowp. 434; and the •opinion, that the acts of 13 and 27 Eliz., are only declaratory of the common law, was expressed by Chief Justice Marshall, Hamilton v. Russell, 1 Cranch, 316, and by Chief Justice Kent, 9 Johns. 339.

But it has been, on the other hand, held that the statute of 13 Eliz., chap. 5, was in extension of the common law; and that a conveyance actually fraudulent may be avoided by subsequent creditors. Thus, in Newland on Contracts, 389, it is said “ that deeds which are avoided by the statute of 13 Eliz., are void as well against those creditors whose debts were contracted subsequently to such deeds, as against those creditors whoso debts wore in exist-■ence at the execution of the deeds.” And the master of the rolls, in the case of Taylor v. Jones (2 Atk. 600), certainly expressed a similar opinion upon that statute; and other highly respectable authorities there are to the same effect, both in England and this •country. In a note in 1 Story’s Eq., he says: “Where a settlement is set aside .as an intentional fraud upon creditors, there is •strong reason for holding it so as to subsequent creditors.”

The apparent conflict of authorities upon this subject may perhaps be found to arise from the seeming obscurity as to what hind •of frauds subsequent creditors may take advantage of. The cases .and authorities appear for the most part somewhat obscure upon. this point. It is possible that tho authories may be satisfactorily reconciled by observing a distinction between that class of cases, whore the debtor has made an absolute conveyance by sale or gift to defraud existing creditors without reserving to *himself any trust, and that class of cases in which the fraud would seem to be directed as well against future as existing creditors. Thus, if one possessed of property and of good credit should make a voluntary conveyance of his property with a view to becoming subsequently indebted, and should by means of his former reputation contract debts shortly after tho conveyance of his property, the • creditors being ignorant of the fact, the fraud might well be regarded as directed specifically against such subsequent creditors.. To the last-mentioned class of cases, as including subsequent creditors, should doubtless be added those voluntary and colorable conveyances made and hold under such circumstances as are attended, in law, by the presumption of a secret trust for the grantor, and constituting a continuing fraud. Thus it is laid down in the case of Clark v. French, 23 Maine, 221, that if a deed intended to be absolute, be made without reservation of any secret trust for the benefit of the grantor, although with a fraudulent intent, understood by both parties, to place the property beyond the reach of creditors, although made for a valuable consideration, yet wanting the-ingredient of good faith, it shall be avoided only by creditors existing at the time of the execution of the deed. But if the deed were not absolute in fact, though in form it might bo so, if a secret trust and confidence exist for tho benefit of tho grantor, it should bo hold void against subsequent as well as precedent creditors.

But we do not think the case before us necessarily requires an opinion upon this litigated subject..

The defendants as a second defense deny that the mortgage was made with intent to defraud tho creditors of the mortgagor.

In the case of Crumbaugh v. Kugler, 2 Ohio St. 373, it was held that voluntary conveyances made by a parent to a child without ■ consideration, when made in good faith, and without intending any fraud to creditors, were valid conveyances as against subsequent creditors, and could *not bo sot aside in case of subsequent insolvency of the grantor for the satisfaction of the claims of such subsequent creditors. Applying the same doctrine to this case, and it would have been lawful for the intestate in 1845, if he had other-means sufficient to satisfy his existing creditors, to have executed. the mortgage to his mother in trust for his children; and if done in good faith, it would not be competent for any subsequent creditor to call such conveyance in question. The mortgage in such case could only, in any event possible, be set aside in favor of subsequent creditors by showing the transaction to have been mala fide with the intent of defrauding cereditors.

Again, supposing the mortgagor at the time of executing the note and mortgage to have been honestly indebted to bis mother in the sum expressed by the note, although she might have been disposed to forbear enforcing collection, or even exacting security for the same ; under the- general right of a debtor to prefer any creditor, the intestate had the legal right to execute the promissory note and mortgage in question; and when so executed, the same would be valid in law.

Unless, then, the record shows the weight of evidence to be clearly opposed to either of the foregoing propositions, we can not say that the judgment of the district court is not sustained by sufficient evidence, or is contrary to law. In considering the evidence to ascertain its apparent preponderance for or against either of those propositions, the conversations of the intestate after the execution of the mortgage, and in the absence of the mortgagee, were not .admissible as evidence in the case.

How then stood the proof upon which the judgment was rendered? The plaintiff gave evidence showing that the mortgagor .shortly previous to making the note and mortgage to his mother expressed fears of being sued for a foreign debt of $400 which he then owed in the State of Virginia, and expressed a fear that his property would have to be sold to pay it; at the same time saying he *owed other small debts about home. Ho also is proven by plaintiff to have said he owed his mother and intended to make a •deed or mortgage to secure her; and that he shortly afterward said he had given his mother the mortgage; and that the mortgagor was -always esteemed a very honest man. The mortgagor would seem from the proof to have had property in his possession, at the time, to the value of probably $2,000, or upward. The plaintiffs give no ■ other evidence of indebtedness of the mortgagor at the time of the execution of the mortgage. But to show that the mortgage was really fraudulent and made to secure the amount of the note as a -secret trust in his own favor, and that he neither owed his mother mor intended the amount of the note ever to be paid either to her or for his children,the plaintiffs must relyupon her testimony which they introduced. But her testimony is that the note was given for ■ money and property by her given to the intestate at different times previous to his giving her the note and mortgage; that the same amounted to $600 or $700; and that she made an advancement to him, she thinks, at the time of receiving the note and mortgage, but does not recollect the amount. She also says in relation to the sums advanced: “when I made the advances I did not expect to get it back,” and that she had assigned the note for no other consideration than that of love and affection to the children of the intestate. The deposition of Anna Roff was taken by the plaintiff, as is certified, in the absence of any one ajDpearing for defendants. Her answers indicate on her part, so far as wo can judge from the deposition, no unwillingness to answer any questions, and a highly creditable regard to truth. In many of her answers, it is true, she conforms to the word used in the question, and uses the same word “ give ” or gifts interchangeably for advance, or advancements. She says, too, that when she made the advances she “did not expect to get it back again.” But she nowhere says that the intestate did not promise her that he would pay ; *or that she even intimated to him that she did not intend to exact payment. And for some reason, counsel seem to have avoided propounding to her in the deposition any question upon that important point. There is nothing indeed in her testimony going to contradict the statement of the mortgagor previous to his giving the note, that he owed his mother. And although at the times of making the advancements to him (in consideration of his infirm health or any other circumstances of her son or his family) she might not have expected to ever realize payment for aught that appears in her deposition, she clearly had the right to collect her claims for her own use if she saw fit; or to appropriate the same with or without his request to his family or children instead of leaving the same uncollected in his hands.

Nor is there anything in the proof inconsistent with the other proposition, that the note and mortgage, being expressive of the amount, principal and interest, of the advancements by his mother, were designed as an advancement by the intestate to his children. There is certainly no proof going to show that the intestate had not sufficient other property to pay all his liabilities at that time.

If it be said that the intestate, previous to making the note and mortgage, expressed apprehensions in relation to the $400 debt, it may well be replied that he spoke of his indebtedness to his mother at the samo time, and of his intentions to make her the mortgage; and that both before and after making the mortgage, he spoke of it openly, and without concealment.

It is not in proof that the intestate had in fact any judgments against him at that time or afterward. And in the absence of all such proof, or where the proof is equally balanced, fraud can not be presumed.

It is sufficient, therefore, in conclusion, to say, that we are unable to perceive from the record before us, that the judgment of the district court was not sustained by sufficient evidence. Consequently wo can perceive no error *in that court’s refusing a new trial in the case. The judgment of the district court must be affirmed.

Brinkerhoee, C. J., and Scott, Peck, and Gholson, JJ., concurred..


author: Scott, J.

text:
    The City of Canton v. Martin Nist.
    An ordinance of a municipal corporation, prohibiting, under a penalty, the-opening of shops, etc., for the purpose of business, on Sunday, without ex- ■ cepting cases of necessity and charity, and without exempting from it3 operation persons who conscientiously observe the seventh day of the week, as the Sabbath, is inconsistent with the laws of the state, and therefore void.
    In error to the court of common pleas of Stark county.
    The city council of the city of Canton, on the 28th July, 1854,. made and published “ an ordinance to preserve order on the Sabbath,” the second section of which is in the following terms:
    “ That if any person, being the owner or occupant of any shop, store, grocery, saloon, or other place of business shall, by himself or agent, open the same for the purpose of business, or shall open the shutters of such shop, store, grocery, saloon, or other place of busi-, ness within this city, on the first day of the week, commonly called Sunday, every such person so offending shall, on conviction thereof, be fined in any sum not exceeding twenty dollars, nor less than ten. dollars for every offense $ provided, that this section and the preceding section of this ordinance shall not be so construed as to render it unlawful for tavern-keepers to entertain travelers, or for druggists to make up prescriptions, and receive pay therefor on that day.”
    The defendant, Nist, was, on complaint made before the mayor, ^arrested, tried, and found guilty of having opened his grocery on Sunday for the purpose of business, contrary to the provisions of said second section, and was thereupon adjudged to pay a fine of ten dollars. Upon petition in error, the court of common pleas reversed the judgment, and dismissed the cause for want of further jurisdiction. This reversal the city of Canton now assigns for error, and asks to have the judgment of the mayor affirmed.
    The only question presented in the case is as to the power of the city council to enact the ordinance in question.

      B. F. Letter and Thomas Goodman, for plaintiff in error.

      Louis Schaefer, for defendant in error.
   Scott, J.

The statute relied upon by counsel, as conferring the power claimed for the city council, is the 33d section of 11 an act to provide for the organization of cities and incorporated villages,” which gives to such corporations the “ power to make and publish such by-laws and ordinances, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of such corporations and the inhabitants thereof.” Swan’s Stat. 964.

But the powers here conferred are expressly limited, in the preceding part of the same section, to such ordinances as are “ not inconsistent with the laws of this state.” And this limitation, even if not expressed, must, doubtless, be regarded as implied in all such general grants of power; for it must be presumed that the legislature would not intend to give to a corporation the power of contravening and defeating state policy by ordinances inconsistent with the laws of the state. Is, then, the second section of this ordinance consistent with the policy of the state as indicated by her legislation?

*By a statute of this state, entitled “ an act for the pre-

vention of certain immoral practices,” passed in 1831, and still in force, it is enacted, in the first section: “ That if any person, of the age of fourteen years or upward, shall be found, on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing, shooting, or at common labor (works of necessity and charity only excepted), he or she shall be fined in a sum not exceeding five dollars, nor less than one dollar: Provided that nothing herein contained shall be construed to extend.to those who conscientiously do observe the seventh day of the week as the Sabbath ; nor to prevent families emigrating from traveling,” etc. The penalty imposed by this section clearly indicates the general policy of discriminating between secular days and Sundays, and of regarding the latter as a day of rest, upon which common labor, sports, and the employments therein named, are prohibited. But the exceptions which it contains are equally expressive of state policy. The statute proceeds on the principle that works of necessity may be performed on any day; that “it is lawful to do good, even on the Sabbath days and upon the further principle that persons who conscientiously observe another day of the week as the Sabbath, shall not be required to abstain from employments, otherwise lawful, on Sunday.

The ordinance in question contains no such general exceptions, in favor of necessity, charity, or creeds. It attempts to 'compel the observance of Sunday by Jew and Christian alike. It punishes, by fine, the opening of any shop, store, etc., or the shutters thereof, for the purpose of business, upon Sunday, without regard to the necessity, or the charity which may have required business to be done. Tavern-keepers and druggists alone are exempted from its operation. ■

It does not appear, from the_ record in this case, that the defendant is a person who conscientiously observes the seventh day of the week as the Sabbath ; but be that fact *as it may, such a plea must have been unavailing, if the second section of this ordinance be valid. But, in ignoring the statutory exceptions to which we have referred, and in assuming to punish acts which the statute, by clear inference, authorizes, the ordinance becomes inconsistent with the laws and policy of the state; and must, as to this section, be declared void. We are constrained so to hold, however sensible we may be of the duty to sustain municipal corporations, in the legitimate exercise of the powers conferred on them, for the preservation of order, and improvement of morals, within their jurisdictions.

Judgment of the court of common pleas affirmed.

Brinkerhoee, C. J., and Sutlief, Peck and G-holson, JJ., concurred.


text:
    Sturges & Hale v. E. G. Williams.
    When a note, payable generally, is made and indorsed in blank for the accommodation of the maker, and at the time of its discount is altered without the knowledge or consent of the indorser, by the .interlineation of a particular place of payment, such alteration is material and discharges the indorser.
    In error to the district court of Cuyahoga county.
    The record in this case shows the following state of facts:
    One Edward Bawson, presented, for discount, to the plaintiffs (who are bankers, doing business in the city of Cleveland), a note of the following tenor:
    “ $500. Cleveland, March 7,1853.
    “ Two months after this date, I promise to pay to E. G. Williams. *Esq., or order, five hundred dollars, value received.
    (Signed,) “ Edward Bawson.
    Indorsed: “ E. G. Wiliams.”

      This note was thus made and indorsed solely for the purpose of raising money for the use of Rawson.
    Pending the negotiation for the discount of this note at the office of Sturges & Hale, Rawson, in their presence, and with their knowledge, but in the absence of Williams, the indorser, and without his knowledge or consent, interlined in the body of the note, between the words “ order ” and “ five,” the clause “ payable at the office of Sturges & Hale,” and the note was thereupon discounted by the plaintiffs.
    All the parties resided in the city of Cleveland, and when the note matured it was presented at the office of Sturges & Hale for payment, protested for non-payment, and due notice thereof was given to Williams, the defendant.
    The plaintiffs having brought their action against Williams, the indorser, the court of common pleas, on the trial of the cause, charged the jury that the insertion of the words, “ payable at the office of Sturges & Hale,” upon the face of the note, by Rawson, the maker, was a material alteration of the contract, and if made without the knowledge or consent of Williams, operated to discharge him from liability.
    The verdict was for the defendant, and judgment accordingly. Upon petition in error, this judgment was affirmed by the district court, and the plaintiffs now ask that this judgment of affirmance may be reversed.

      B. P. Spalding, for plaintiffs, submitted the following points and authorities:
    1. The undertaking of defendant was not affected at all by the interlineation made in the note by Edward Rawson, the “ promissory debtor.” Sanderson et al. v. Judge, 2 H. *Bla. 510; Whitwell et al. v. Johnson, 17 Mass. 449; Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445; 3 Esp. 57; 17 Johns. 248; 12 Mass. 171; 18 Johns. 315; 19 Ib. 391; 3 Met. 103; 2 Parsons on Contr. 226; Story on Prom. Notes, see. 236; 10 Conn. 192; Doe ex dem. Lewis et al v. Bingham, 4 Barn. & Ald. 672.
    2. The place of payment was interlined by the maker of the note himself, and before the instrument had become operative by the advancement of a dollar, as the consideration; in fact it was the inducement to the advancement of the money by plaintiffs. The defendant had previously indorsed the paper to give it character and currency, and had placed it in the hands of the makoi to be used according to his exigencies, in raising money.
    It was not known where the money would be raised, and it must have been a matter of indifference to the indorser where his friend, the maker of the note, should undertake to pay the amount when it became due. At all events, there was no express restriction imposed by the defendant as to the place of'payment, and he had oermitted the maker to take the note, bearing his (Williams’) indorsement, in blank, into the market, to be discounted for his own convenience.
    I claim that, under the circumstances, Edward Rawson, in negotiating with Sturges & Hale for an advancement of money upon the strength of the security which he offered, had a perfect right to stipulate as to the place where he would pay the note at its maturity. And if he could make a binding agreement in this respect, he could insert it in the note; for then the rights of the indorser could by no possibility be affected. See Wallace v. McConnell, 13 Pet. 150.
    3. The note was not made void by the alteration, even though it be considered a material alteration, for it was made by the party who alone could be affected by it, and is surely a valid note against him.' The defendant can only claim that “ presefatment and demand ” were not made according to the law of the contract.
    The facts found refute this claim.
    4. The alteration does not impair the validity of the note, in any respect, because it is not tinctured with fraud, and is not a material alteration. 1 Greenl. Ev., sec. 566; Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445; 2 Parsons on Contr. 226; Martindale v. Follett, 1 New Hamp. 96; Bowers v. Jewell, 2 New Hamp. 545; 6 Mass. 521; Arnold v. Jones, 2 Rhode Island, 345.
    The very learned opinion of Chancellor Rent, pronounced in the court for the correction of errors, in New York, in Woodworth v. Bank of America, 19 Johns. 391, is commended to the attention of this court, as a lucid exposition of the whole law of the case.

      BE. Griswold, also for plaintiffs.

      Banney, Backus & Noble, for defendant, argued :
    Although the position of the defendant was that of an accommodation indorser, yet as he never owned the paper, and indorsed it before it was used, his agreement amounted to a conditional contract of suretyship, and entitled him to the benefit of the rules established for the protection of sureties (Clason v. Morris, 10 Johns. 538; Greenough v. Smead, 3 Ohio St. 422), one of which rules is, that a surety is only to be hold by the strict terms of the written obligation into which he has entered, and that it can not be changed in the least, without losing all remedies against him.
    By the contract into which the defendant entered he undertook to pay the amount of the note, upon condition, that the holder, when it matured, presented it to the maker and payment was refused, and he was immediately notified of the fact. These conditions, as was said by this court in Townsend v. The Lorain Bank of Elyria, 2 Ohio St. 360, “ are as clearly a part of this contract as though ^written'over its own signature.” Upon this contract, as he made it, he has the right to stand ; and before the plaintiffs show themselves entitled to recover, they must show themselves the holders of this contract, and that they have strictly complied with the conditions upon which he agreed to become liable. This they utterly failed to do. They never took the note upon which he agreed to become liable, but another and different one, cooked up between them and Rawson, the maker; and it is not pretended that they demanded payment of Rawson when the note which they did take.had matured. An indorser upon the note which they did take would have bound himself to pay the amount of the note upon condition that the maker had not funds at the office of Sturges & Hale to take it up when it matured, and he was duly notified of that fact. Unless therefore the contract to which the defendant did not assent, can be substituted for the one to which he did assent, he can not be made liable.
    But it is insisted that the alteration is in nowise material. Suppose the position were established, what is its legal significance? If any principle can be said to be established, it is that a surety can only be held by the strict terms of the contract into which he has entered, and that he is discharged if they are changed, whether the alteration is injurious to his interests or not. Ludlow v. Simond, 2 Caines Cas. —; Woodworth v. Bank of America, 19 Johns. 422. To every claim made upon him, upon such altered agreement, he may interpose the legal maxim, “ non hcec in fcederá veni.”

    But the position is not established, and can not be. While it is true that an alteration is immaterial which does not in any way change the legal effect of the contract, the converse of the proposition is equally true, that every alteration which, to any extent, varies the true terms of the original agreement, is, in the eye of the law, material. The effect of such an alteration can not be avoided by satisfying the court that the party might, consistently wi€h his ^interest, as well have bound himself to the substituted stipulation ; and for the plain reason that courts are only authorized to enforce the agreements which parties make, and can not make contracts for them.
    The substituted agreement entirely dispensed with one of the conditions upon the performance of which the defendant agreed to become responsible, to wit, the personal demand upon Rawson; and substituted in its place an obligation to pay the note, if Rawson, without any such demand, failed to have funds at the office of Sturges & Hale to take up the note. That such changes can be made, or such liberties taken, by the creditors and principal debtor, with the contract of an indorser occupying the position of a surety, behind his back and without his knowledge or consent, we think wholly unwarranted by any sound principle of law, and wo hazard nothing in saying, is wholly unsupported by any judicial decision, at this time, anywhere recognized as authority.
    But the materiality of such an alteration has been directly adjudicated. In Cowie v. Halsell, 6 Eng. Com. Law, 449, the Court of King’s Bench held, that the addition by the holder of a place of payment to the acceptance of a bill, made it void. This case is, in principle, exactly in point, and establishes the materiality of such an addition, and that it avoids the paper as against any party not assenting to the alteration. In that case the acceptor was discharged; but an indorser is no less a party to a bill or note; and if it is perfect when it leaves his hands, no material change can be made without effecting his discharge.
   Scott, J.

’ The alteration by which the defendant in this case claims to have been discharged, was made by interlining in the body of the note the words, “ payable at the office of Sturges & Hale.” Questions have frequently arisen upon the effect of a memorandum, made at the bottom or in the margin of a note, designating a place of ^payment, as to the point whether such memorandum forms a part of the contract, so as to constitute an alteration therein. But no such question arises here; for the alteration, whether material or not, was incorporated into the note, and made to constitute part of its terms.

The principal, if not the only questions which the case presents, are: Was the alteration a material one as to the indorser? And if so, was it unauthorized by him? If either of these questions can be properly answered in the negative, the defendant was not discharged by the alteration; but if both questions must be answered affirmatively, the alteration discharges him, upon clear and well-settled principles.

As to the first point then, it would seem clear, that if, by giving effect to the alteration, the contract of the indorser is substantially changed, then the alteration is material as to him. It is not necessary to the materiality of the alteration, that it be such as must necessarily prejudice the defendant, nor that the proof show him to have been in fact damnified by the change. Eor, occupying the position of a surety, he may insist on the very terms of his contract. And if these terms are substantially varied, without his consent, he may well say that the new contract is one into which he never entered.

Now, what was the contract of the indorser, as it stood when the note in question loft his hands? The note was- payable generally, and the indorsement was in blank. This indorsement, taken in connection with the contract of the maker, as shown by the face of the note, constituted, by force of the commercial law, a definite contract. Its terms were, substantially, that he, the indorser, would pay the amount of the note to the holder, if, at its maturity, upon demand made of the maker either personally, or at his domicil, or usual place of business, payment should be refused, and due notice of such dishonor should be given to the indorser.

*This contract could not have been made more definite and certain by reducing its terms to writing. Is it, then, substantially varied by the subsequent alteration? Had the indorser consented to making the note payable at the office of Sturges & Hale, or had such been its terms at the time of indorsement, his contract, by the same commercial law, would have been that he would pay to the holder the amount of the note, if, at maturity, upon demand made at the specified place, payment should be refused, and due notice of dishonor given. Indeed, the note having been negotiated to Sturges & Hale, the liability of the indorser would become fixed, if at its maturity, there were no funds of the maker in the hands of the holders applicable to its payment, and proper notice of dishonor were given. The effect of this alteration, then, is to dispense with the demand upon the maker personally, or at his residence or place of business, and thus to waive every thing calculated to call the attention of the maker to the subject, when the note matures.

Now, so far from its being true that this 'does not change the contract of the indorsor, its principle effect would seem to be upon that very contract. The demand of payment at maturity is necessary, only for the purpose of charging the indorser. The right of action against the maker is perfect without it.

But it is said that as the drawee of a bill of exchange, payable generally, may by special acceptance, payable at a particular place, make a demand at that place sufficient to bind the drawer, so, on the same principle, the accommodation indorser of a promissory note, payable generally, may be bound by a place of payment specially designated.by the maker, before negotiation. The analogy between the position of the parties to a bill of exchange, and the •corresponding parties to a promissory note, is not complete until ithe acceptance of the bill. The drawing of the bill must precede its acceptance; whilst the contract of indorsement *is jdosterior to the making of the note, and is made with reference to its 'terms already expressed on its face.

The right to make such alteration in, or addition to, the terms ■ of a note after indorsement, if conceded to the maker, might certfainly be so exercised as greatly to prejudice the indorser. If made payable at a distant point, without his knowledge, he might •ffind himself made liable by notice of dishonor, received days or •weeks after he had every reason to suppose the risk terminated. ,He might be willing to become surety for the prompt payment of ¡a note by the maker, provided his attention would be called to the ■.subject by a personal demand at maturity, but be unwilling to risk ¡its dishonor without such demand. At all events, he had a right to make his own contract, and insist on its terms. It was not com■petent for other interested parties, by á subsequent alteration of ■this written evidence, to vary his obligations without his consent, .although it may not appear that the change was in fact prejudicial •to him.

The decision of the Supreme Court of New York, in the case of Bank of America v. Woodworth, 18 Johns. 315, and the opinion of 'Chancellor Kent, in the same case, in the court of errors, 19 Johns. 391, seem to be strongly relied on by counsel for tbe plaintiffs. That was the case of a memorandum, made upon the margin of a note, designating the place of payment, which, it was held by the Supreme Court (Spencer, C. 3\), did not form any part of the contract, and therefore did not discharge the accommodation indorser, though made without his knowledge. But in the coui't of errors, it was held otherwise, as well upon principle as upon a review of the authorities, notwithstanding the able opinion of Chancellor Kent to the contrary; and this decision, made in 1821, has ever since remained the law of that state. We think it rests upon principles which can not be successfully controverted.

As to the unauthorized character of the alteration in this case, it may be sufficient to say, that it is admitted to have been made without the knowledge or -express consent *of the defendant, and as the note, when indorsed, was without blanks, full and perfect in all its parts, there is nothing apparent from which such consent can be inferred or presumed. The conditions upon which his liability depended, were material and important elements of his contract, and an unauthorized alteration, by which those conditions would be substantially modified, must operate to discharge him. And the fact that the plaintiffs would not, as their counsel claim, have consented to discount the note, without the alteration, only demonstrates more clearly the impropriety of subjecting the rights and obligations of a party, under his contract, to such modification as the convenience or interest of others may dictate.

Judgment of the district court affirmed.

Brinkerhoff, C. J., and Sutliff, Peck, and G-holson, JJ., concurred.