text:
    *John Floyd & Co. v. Christian Smith.
    Where a debtor, in contemplation of insolvency, makes an assignment of property in trust to trustees, with the design to prefer one or more creditors to the exclusion of others, such assignment, whether fraudulent or bona fide, by virtue of the act of March li, 1853, “ declaring the effect of assignments to trustees in contemplation of insolvency,” is operative to pass title to the assignee, is not void, and can not rightfully be so treated by creditors not embraced within its provisions.
    ■ In error to the district court of Holmes county.
    On the 17th day of February, 1855, Christian Smith filed his petition, in the court of common pleas of Holmes county, against Elyzur J. Loveland, stating that on the 14th of February, 1855, said Loveland had, without leave, wrongfully taken certain of his goods, wares, and merchandise, particularly described, to his damage, for which he asked judgment.
    At the March term, 1855, of the court of common pleas, the court ordered John Floyd & Co. to be fiiade defendants instead of said Loveland.
    May 7, 1855, Floyd & Co. answered, not denying that said Love-land took the property described in the petition, but denied that it was the property of Christian Smith, and that it was taken as such, but averred that it was taken as the property of George F. Smith, by said Loveland, as the sheriff of Holmes county, on a writ issued out of the court of common pleas of said county, in a case pending therein, wherein said John Floyd & Co. were plaintiffs, and said George F. Smith was defendant.
    The case came into the district court by appeal, and was there tried at the June term, 1855, and resulted in a verdict for the plaintiff, Christian Smith. Thereupon said Floyd & Co. moved the court to set aside the verdict, and for a new trial, on the ground that the verdict was against the weight of the evidence and contrary to law, which ^motion was overruled and judgment entered, and bills of exceptions were taken.
    It appears from a bill of exceptions that the following was all the evidence given on the trial:
    The plaintiff, to maintain the issue on his part, gave in evidence a certain agreement in writing, which reads as follows:

      “ This article of agreement made between George E. Smith and Christian Smith, witnesseth, that the said Christian Smith agrees to pay the debts for which he is the bail and surety of the said George E. Smith, to wit, a note of Adam Lane for four hundred dollars with the interest, two notes to John Woods for about four hundred dollars, one note to George P. Smith & Co. for two hundred dollars, one to same for two hundred and fifty dollars, one to same for two hundred and seventy-five dollars, one note to James P. Tanner for two hundred and eighty-five dollars, one to Babcock & Co. for one hundred dollars. And the said George E. Smith hereby sells and conveys to the said Christian Smith all the book, book-accounts, claims, notes, and demands coming to him, and also the goods, wares, and merchandise belonging to the said George F. Smith, in or at his store at Winesburg, Holmes county, and also a gray horse, a two-horse wagon; and the said George E. Smith is also to execute a mortgage on his real estate to secure any balance that may be due, if the said book-accounts, goods, etc., aforesaid, be insufficient to pay the amount for which said C. Smith is bail, and which he hereby agrees to pay as aforesaid; and the said goods and merchandise is to be inventoried at cost, and also the claims in said books, notes, ote., and if there shall be more realized from the same th&m what the said C. Smith hereby binds himself to pay, he is to pay the balance to George E. Smith, first deducting enough to pay reasonable costs and expenses.
    (Signed,) “George E. Smith,
    “ February 14, 1855. C. Smith.”
    ^Christian Smith, the plaintiff, was a witness on the trial, and from his cross-examination it was made to appear that the goods, wares, and merchandise transferred to him under the foregoing agreement, were estimated to be worth, at first cost, the sum of twenty-five hundred dollars, and that the good claims assigned to him as aforesaid, were of the value of five hundred dollars, and that the doubtful claims so assigned amounted to eleven hundred dollars; and that said George E. Smith and wife, on the 16th of February, 1855, executed and delivered to said Christian Smith a mortgage on lands particularly described, duly acknowledged, and conditioned according to said agreement, and which mortgage was offered in evidence on the trial. The consideration mentioned in the mortgage was nineteen hundred and twenty-five dollars. It was also proved that the mortgaged-premises had cost said George E. Smith at least thirty-five hundred dollars, and that when the mortgage was made, said premises were worth about two thousand dollars. It further appeared that the property covered by the assignment copied above, and tbe mortgage, constituted all the property said George F. Smith owned, except certain household goods exempt from execution, and that the mortgaged premises had no other incumbrance upon them at the time, except a certain mortgage to George F. Smith’s father-in-law, for between nine and ten L andred dollars; that the plaintiff, Christian Smith, was the father of said George F. Smith, and that he had taken all the property mentioned in the assignment and mortgage as security and indemnity for the amount of the “ notes mentioned in said written agreement for the payment of which he, the plaintiff, was liable as aforesaid, as security for said George F. Smith.”
    It was further in evidence that, on the 13th of February, 1855, William Floyd, one of the defendants below, was at Winesburg, where George F. Smith kept his store, endeavoring to get him to pay, or secure to be paid, the claim, which the defendants below then held against him, amounting *to three hundred and seventy-seven dollars and fifty-seven cents, and on which the writ of attachment upon which the goods sued for was issued) on February 14, 1855, being the same- day on which the written agreement copied above was made, and that when the writ of attachment was levied by said Loveland, then sheriff of Holmes county, on said 14th February, 1855, not more than some four or five hundred' dollars’ worth had been invoiced between the two Smiths.
    It was further in evidence that when said Floyd went to Wines-burg, where the Smiths, father and son, lived, to see about his claim against tbe son, George F. Smith, the latter told Floyd that he would try and get his father to go his security, and wont to see his father for that purpose. When he asked his father, he replied that he had already gone his security to a large amount, and insisted on George F. Smith securing him, which he agreed to do; and that the arrangement was committed to writing on the next morning; “ and that said C. Smith gave as a reason for taking as much as was included, by saying that he could not know what it was worth. And O. Smith testified that he was liable for George to the amount of nineteen hundred and seventy-five dollars at .the time of said sale.”
    The defendants, to maintain the issue on their part, proved by Síád Loveland, then sheriff, that on the 14th of February, 1855, when ho executed said writ of attachment, he did not seize upon, nor take by virtue of said writ, any of the goods and merchandise which had been inventoried as aforesaid, but other goods and merchandise, then in the storehouse of said George E. Smith, not inventoried by the said Smiths.
    It further appeared that, at the time George F. Smith transferred the property to his father, the plaintiff below, said George F. Smith was insolvent.
    Prom a bill of exceptions taken at the .trial, to the rulings of the court, it appears that at the close of the evidence counsel for Floyd & Co. asked the court to ^instruct the jury that the reservation by the son, in the sale and transfer of his property to his father, rendered such sale or transfer void. The court refused to give such instruction, but instructed the jury that if the sale or transfer of the goods was made to Christian Smith, the plaintiff below, in trust to the use of the grantor, the said George F. Smith, the sale or transfer would thereupon be void. But the court further expressed to the jury their opinion that the article of agreement, proven in the case, did not show a ease of conveyance of goods made in trust for the use of the persons making the same, under the first section of the statute of frauds.
    The court further said to the jury, that if the conveyance of the goods was made or obtained to defraud the creditors of the said George F. Smith of their just and lawful debts or damages, then the sale or transfer would be void, although it might appear that the plaintiff (below) had a just claim which he also attempted thereby to secure.
    To which refusal to instruct as requested, and to the instruction given, the counsel for the defendants below excepted, and now assign the same for error, as well as the action of the court in overruling their motion for a new trial,

      Hoaglcmd & Reed, for plaintiffs in error.

      Barcroft & Vorhees, for defendant in error.
   Brinkerhoff, C. J.

This being an action in the nature of an action of trespass for unlawfully taking and converting property claimed by the plaintiff below under the assignment set forth in the bill of exceptions, the defendants below were under the necessity of claiming and maintaining that said assignment was utterly void and of no effect, and passed to the assignee, as against other creditors, no title whatsoever; and hence they asked the court to ■ charge the-jury, that “the reservation by the son, *in the sale or transfer of the property to his father,” of the surplus remaining after the payment of the debts for which the father was bound as surety, “ rendered the sale or transfer void.” This'charge the court below refused to give, thereby, as well as subséquently in express terms, holding that the assignment was not, on its face, and as a matter of law, fraudulent and void. In thus holding, did the court below err ? And if it did, what is the effect of the error on the case before us ?

In the case of Hoffman, Burneston & Co. v. Mackall et al., 5 Ohio St. 134, 135, the judge delivering the opinion of the court, introduces, with seeming approval, the doctrine laid down in Goodrich v. Downs, 6 Hill, 438, and Barney v. Griffin, 2 Comst. 365, “ that there are certain provisions in the terms of an assignment or deed of trust, made in contemplation of insolvency, which are per se fraudulent ; ” and that, among these, is “ the reservation of the surplus after paying certain specified debts, leaving other debts unpaid.” This opinion, as is evident from the note appended to it, was drawn up in vacation, more than a year after the case had been considered by the court; the doctrine thus seemingly approved was not necessary to a determination of the case, and the correctness of which may be subject to serious.question.

These remarks will apply also, to some extent, to the observations of the judge delivering the opinion of the court in Dickson et al v. Rawson, 5 Ohio St. 224. As it seems to us that, while our statutes “ declaring the effect of assignments to trustees, in contemplation of insolvency;” continue in force, there can be no case in which the doctrine of these New York cases can possibly apply, why should its correctness be either discussed or determined by this court? It will be time enough to do either, when occasion for its application shall arise.

This reservation of the surplus remaining after the payment of the debts secured by the terms of the assignment, is obviously nothing more than a stipulation for the performance *of a duty, which the law would recognize and enforce without such stipulation; and how it can become a conclusive badge of fraud, is, on principle, difficult to perceive; and the doctrine of these New York cases seems to me to rest on a somewhat forced application of the letter of the statute of frauds, in mistake or disregard of their proper object and intent.

A part of the doctrine of these New York cases, and essential to their consistency with themselves, is that a reservation by the assignor to himself of the surplus after the payment of debts less than his whole indebtedness, constitutes it an assignment in trust for the benefit of the assignor, within the statute of frauds. Now, granting for the sake of the argument the doctrine of these New York cases to their full extent, what then ? It follows, to be sure, that the court below may have erred in its refusal to charge the jury, as requested by the defendants below ; but then it also follows, that this assignment comes within the provisions of the act of March 14, 1853, !< declaring the effect of assignments to trustees in contemplation of insolvency,” and which is as follows (3 Curwen, 2239):

“ That all assignments of property in trust; which shall be made by debtors to trustees in contemplation of insolvency, with the design to prefer one or more creditors to the exclusion of others, shall be held to inure to the benefit of all the creditors, in proportion to their respective demands ; and such trusts shall be subject to the control of the courts, which may require security of the trustees for the faithful execution of the trusts, or remove them and appoint others, as justice may require.”

' That this assignment was made ip contemplation of insolvency, is clear from all the testimony in the case; that it was made to prefer a creditor, to wit, the assignee, is apparent from the instrument of assignment itself; and if, as held in the New York cases before cited, the reservation of the surplus after the preferred debts are paid, is ^conclusive as to its being a trust to the use of the

assignor, under the statute of frauds, then every requisite necessary to bring the assignment within the statute of 1853 is supplied. The language of this act is, “ all assignments,” etc.; and whether they are fraudulent or bona fide, so that they otherwise come within the purview of the act, makes no difference. This statute avoids nothing. It simply takes up the class of assignments embraced within its provisions, makes them binding and operative, so far as to pass title to the assignee, whether they be fraudulent- or not, and causes them to inure “to the benefit of all the creditors, in proportion to their respective demands.” It, in effect, supersedes and, by implication, repeals the statute of frauds pro tanto. And so our courts have held. Harshman v. Lowe, 9 Ohio, 92. On this supposition, it follows, therefore, that, if the court below erred in refusing to charge the jury as requested, it was an error which could not operate to the prejudice of the defendants below; for if the assignment was within the operation of the act above quoted, it inured “to the benefit of all the creditors,” and could not be by the defendants below rightfully treated, aS they claimed to treat it, as null and void. In short, if the assignment was fraudulent per se, in virtue of provisions apparent on its face, it came within the operation of the act of 1853, which, so far from avoiding it, gave it validity for its own purposes and policy; if not fraudulent per se, there was no error in the charge, or refusal to charge on this branch of the case.

As to the question of fraud in fact — whether the assignments was made or received with the intent to defraud creditors, or not — that question, so far as appears from the bill of exceptions, was fairly enough left to the jury; and it seems to us that there was not such a want of evidence to support the verdict as would authorize us to set it aside.

It may be said that the court ought to have told the jury that, in inquiring into the question of intent, they were at liberty to look into the terms and provisions of *the assignment itself, as well as all the other circumstances of the case. To this it seems to me sufficient to reply: 1. No request appears to have been made to the court thus to charge; and,( 2. The bill of exceptions does not purport to set out the whole, or general charge of the court, but such portions only as counsel thought proper to except to; and non constat, from aught that appears in the bill of exceptions, but that all proper observations on this subject were made by the court. Error must be made apparent on the record; it will not bo presumed.

Judgment affirmed.

Scott, Stjtliff, Peck, and Gholson, JJ., concurred.


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    Charles Pierson, Assignee, etc. v. Elizabeth Smith, by Next Friend, etc.
    Where the separate property of a wife, which is protected by statute against the claims of her husband’s creditors, is lost or destroyed by the wrongful act of a third party, the same protection is to be extended, for her benefit, to any judgment which she may recover against the wrong-doer for the value of the property so lost or destroyed.

      The fact that such judgment has been obtained in the name of the husband is not conclusive evidence of a reduction to possession by the husband. The presumption arising therefrom may be rebutted by proof that the action was prosecuted at the instance of the wife, and for her sole benefit; the name of the husband having been used merely as that of trustee, holding the legal title for the benefit of his wife, without any intention on his part to appropriate the chose in action to his own use.
    A controlling effect will be given, in such cases, to the clear intention of the parties.
    Error to the Superior Court of Cincinnati.
    The plaintiff in error brought suit in the Superior Court of Cincinnati, against one T. K. Smith, the husband of defendant in error, on an account for merchandize sold; *and, as auxilliary to. his action, sued out process of attachment, seeking to subject to the satisfaction of his claim a judgment previously rendered, and then remaining unsatisfied, in favor of said T. K. Smith, against the Cincinnati, Hamilton and Dayton R. R. Co., for baggage of his wife (the defendant in error), lost while she was a passenger on said company’s road.
    The main action proceeded to judgment in favor of the plaintiff in error. But, in regard to the attachment, the defendant in error came in and claimed (by an answer, which was received and treated as a petition) that the judgment attached was her separate property, and not liable to be attached for her husband’s debts, and praying for a dismissal of the attachment, for injunction, etc.
    To this petition of the wife the plaintiff in error answered, denying the allegations of her petition.
    The issue, thus raised, was tried by the court, and found in favor of the wife, whereupon the attachment was dismissed, and an injunction ordered, as prayed for by her.
    This judgment on the case presented by the petition of the defendant in error, is now sought to be reversed on the grounds : 1. That the court erred in finding that the contents of the trunk lost by the railroad company were the separate property of the wife, and not the property of the husband ; and, 2. That the court erred i n finding that the judgment against the railroad company for the value of the lost trunk and contents, though rendered nominally in favor of the husband, in an action prosecuted in his name, might still be, and, under the evidence in this case, was, in fact, the separate property of the wife,' and as such, was not liable to be attached for the payment of his debts.
    The evidence in the case shows that the contents of the trunk, when lost, consisted of articles constituting the personal wardrobe of the defendant in error, together with articles of plate and jewelry, which were exclusively her property, a portion thereof being heir-looms, and the ^residue being presents to her from friends and relatives of her family ; and that owing to the embarrassed circumstances of her husband, she had been mainly supported and clothed by her grandfather and other relatives.
    It further appears from the evidence that suit for the recovery of the value of the trunk and contents, was originally brought at the solo instance of the defendant in error, who, by letter, employed an attorney for that purpose; that the attorney, in the exercise of his judgment, commenced the action in the joint names of Thomas K. Smith and Elizabeth his wife; and that, upon demurrer to the petition, he amended by dropping the name of Elizabeth Smith as a party plaintiff, in order to avoid a question of technicality, and proceeded to judgment in the name of Thomas K. Smith alone.

      Collins & Herron, for plaintiff in error, cited Dixon’s Adm’r v. Dixon et al., 18 Ohio, 113.

      Piatt, for defendant in error.
   Scott, J.

The act of February 28, 1846, “ in relation to the interest of husbands in the estate of their wives ” (Swan’s Stat. 712, 713), provides as follows:

Sec. 3. No interest of. a husband in any chose in action, demand, legacy, or bequest of his wife, shall be liable to be taken, by any process of law or chancery, for the payment of his debt, unless such husband shall have reduced the same to possession; so as, by the rules of law, to have become the owner thereof in his marital rights,” etc.

“ Sec. 4. All articles of furniture and household goods, which a wife shall have brought with her at marriage, or shall have come to her by bequest, gift, or which shall have been, after marriage, purchased with her separate money or other property, shall be exempt from liability for the debts of her husband, during the life of the wife, and during the life of any heir of her body.”

*We think there is no room for doubt, in this case, that the trunk, with tho wearing apparel and other articles, which it contained, were the separate property of Mrs. Smith, and that, under a fair and reasonable construction of the section last cited, according to the manifest spirit and policy of the act, all these articles were exempt from liability for her husband’s debts.

But the defendant in error, against her will, has been deprived of these articles of property, by the wrongful act of a third party, against whom a judgment has been recovered, in the name of her husband, for their value. And it is now claimed that the fund into which her property has thus been converted, has, by means of the premises, been reduced to the possession of the husband, so as to become liable for his debts. Is thi3 so?

That a husband may reduce to possession a choso in action of the wife by recovering a judgment thereon, in his own name, during coverture, is unquestionably true. Dixon’s Adm’r v. Dixon, 18 Ohio, 113. But will the law conclusively give this effect to the recovery of such a judgment, without regard to the intention of the parties ? •

To effect a reduction to possession of a chose in action, there must bo some act done by the husband, evincing an intention to appropriate it to his own use. A recovery of judgment thereon, in his own name, is certainly prima facie evidence of such intention. Such recovery of judgment, if obtained in the assertion of his marital rights, would be a conclusive act of appropriation. But the presumption of an intention to appropriate the chose in action to his own use, which arises from the mere use of his name in a suit prosecuted and judgment rendered thereon, may, we think, be rebutted by circumstances. Even the reception of payment by the husband, would not constitute a reducing to possession, if, in the transaction, lie acted merely as the agent of his wife, and not in the exercise of his marital rights. And we think the circumstances shown by the evidence in this case, clearly disprove *any intention, on the part of T. K. Smith, to appropriate his wife’s property to his own use. He may perhaps have acquiesced in the use of his name by his wife, in a suit brought at her instance, to recover tho value of her own property lost by the wrongful act of a third party. But in this, it is fairly to be inferred that he acted merely as a trustee, holding the legal title for the benefit of his wife. Being unable to repair her loss from his own means, he had no equitable or moral right to do or intend otherwise, to her preju-dice; and there is no evidence of any such inequitable purpose on his part.

It is very clear that the defendant in error has never intended to part with her interest in the property; and the husband having anade no intentional appropriation of it to his own use, wo think the debt sought to be attached by the plaintiff in error is, in equity, atill the property of the wife, and as such, is protected by the statute as against the creditors of her husband.

Judgment of Superior Court affirmed.

Brinkerhoff, O. J., and Sutlief, Peck, and Gtiolson, JJ., concurred.


author: Sutliff, J.

text:
    Joshua Myres v. Wing Walker’s Administrator.
    In an action bjr the assignee of a chose in action against the administrator of the debtor, the assignor is, under sections 310 and 313 of the code, a competent witness for the assignee to prove any of the material facts in the case, including those which occurred before, as well as those which occurred after, the decease of the debtor.
    In error to the district court of Lorain county.
    This was a civil action under the code, brought by Myres against Walker’s administrator, upon a note which, *the petition states, was made by Walker about the 15th of June, 1833, for fifty-five dollars, at ninety days, payable to one John E. Adams, and which was accidentally destroyed by fire, some time in the year 1844. The petition further states, that Walker, prior to his death, which occurred in November, 1854, repeatedly promised to pay the ■note to Adams, and that about the first of October, 1850, he made ;a special promise to pay the amount of the note and interest within ■a reasonable time, and that these several promises prevented.the bar of the statute of limitations; but that said Walker died, leaving the note and interest unpaid. The petition further states, that on the 17th of August, 1855, Adams assigned his interest in the note and claim to the plaintiff, who, on the 24th of September, 1855, caused the claim to be duly presented, with the accessary aifidav'ts, to Walker’s administrator for allowance, or payment; both of which were refused; wherefore the plaintiff asks judgment.
    The defendant’s answer admits the presentation of the claim and his refusal to accept or pay it, on the ground that it was not properly authenticated, and believing it to be an unlawful and unjust claim. The other material allegations of the petition the answer denies, for the reason that the defendant had no information or personal knowledge in regard to them.
    The cause came to trial, on appeal, at the September term, 1856, •of the district court, and to the court, and the plaintiff, to maintain the issue on his part, called Adams, the assignor of the claim, as a witness, and offered to prove by him all the material allegations ■of the petition. The defendant objected to his competency to testify to the facts stated in the petition to have occurred before Walker’s decease, and the court sustained the objection and refused to allow Adams to testify to any fact which transpired before Walker’s death, except the loss of the note. To this ruling the plaintiff excepted. After the testimony was closed, the court found for the defendant. Thereupon *Myres moved for .a new trial, because of the ruling of the court as to the incompetency of Adams. The court overruled the motion, and entered judgment on its finding.
    To .reverse this j udgment, this proceeding in error is prosecuted.

      3. Burke, and J. Myres, for plaintiff.

      L. A. Sheldon, for defendant.
   Sutliff, J.

The only question presented for our consideration is that of the competency of the witness offered by the plaintiff, and excluded by the court.

It is provided by sections 310 and 313 of the code, as follows:

“Seo. 310. No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime ; but such interest or conviction may be shown for the purpose of affecting his credibility.”

“ Sec. 313. No party shall be allowed to testify by virtue of the provisions of section 310, where the adverse party is the executor or administrator of a deceased person, when the facts to be proved transpired before the death of such deceased person. Nor shall he testify unless he give reasonable notice of his intention so to do to-the adverse party.”

There have been several amendments, but none that so change those sections as at all to affect the question before us. The sole question is, whether Adams, the proposed witness, comes within the exceptions to section 310 of the code, expressed by section 313.

If he was a party in the case adverse to the other party, an executor or administrator, he is, but not otherwise.

The record in this case shows that the witness was not *a party at all in the case. He therefore is not within the provisions of section 313, and by the express provisions of section 310, was a competent witness in the case.

Nor would he have been within the exception, even if he had continued to have an interest in the event of the suit. In such a. case it is provided, in section 310, that “ such interest ” might be-shown for the purpose of affecting his credibility.” But, in the-case under consideration, the record shows that the witness was not only not a party in the case, but also that the witness had assigned all his interest in the claim, and so was not only a competent but a disinterested witness.

Before our liberal statutory amendments of the law of evidence, a witness standing in the relation of Adams to the parties litigant, and not himself a party, nor interested in the event of the suit, was a competent witness. By the provisions of the code, section 25, an action is required to be brought in the name of the real . party in interest, except in certain cases of a fiduciary character, mentioned in section 27. In the prosecution of a right of action assigned, therefore, the assignee, as in this ease, prosecutes the action in his own name, and as independent of the assignor, as-does the indorsee of a negotiable promissory note or bill of exchange. Nor can the fact of the assignment having been made-subsequently to the death of the testator or intestate, at all affect the right of the assignee of a chose in action, any more than it. would the right of an indorsee of a promissory note or bill of exchange, under like circumstances. The action in either case is alike required by the provisions of the code to be prosecuted in the-name of the party in interest.

If it be -objected that' the provisions of section 313, precluding the party from testifying when the adverse party is the executor or administrator, may be avoided by thus allowing the party having such right of action upon an assignment-thereof, to substantiate •the right by his own testimony, it may be replied that the law is thereby subject *to no greater liability to abuse than [562 might have been practiced by the transfer of negotiable paper before the adoption of the code. Formerly, when the witness introduced to give testimony was, upon objection made, held to be incompetent by reason of interest in the event of the suit, it was not unusual for his competency to bo restored at once by a release of -.such interest on the witness-stand. And the circumstance and manner of such release could only be urged against the credibility ■of the witness. The payee and indorser of a negotiable note, under such circumstances, might be improved as a competent witness to maintain the right of action thereon. And it is difficult to ■perceive any want of analogy between such cases, under our former rules of practice, and the practice, under the code, of allowing an assignor to testify in such cases as the one under consideration. It is not shown, nor pretended, that the assignment in this ease was not bona fide on the part of Adams to the plaintiff; and if it were not, I apprehend that the objection to Adams as a witness could .go only to his credibility.

Indeed, the case before us is made so clear, by the express language of the code, as to need no argument, nor admit of construction. It is not admissible to interpret what has no need of interpretation. Where a statute is plain, and its meaning clear and unambiguous, as expressed in the text, unless its obvious meaning leads to some absurd consequence, courts are not at liberty to re.-sort to construction.

We think the district court erred in holding the witness offered to be incompetent; and for this cause the judgment of that court is reversed.

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


author: Peck, J.

text:
    *Henry Smith v. James H. Kibbee.
    In a suit brought to recover the agreed price for twenty-five barrels of whiskj sold and delivered, there being no evidence that it was adulterated, and it-appearing by the bill of exceptions that up to and after the time when the-sale and delivery took place, no inspector had been appointed, under the-act of May 1,1854, by the probate judge of the county in which the vendor resided, and where the sale was made: Held—
    1. That the omission to have the whisky inspected does not, in such case, preclude the vendor from recovering the price agreed”to be paid.
    2. That the penalties and prohibitions of said act do not attach to a sale of spirituous liquors which are pure, but not inspected, made before an inspector has been appointed and qualified, under the law, in the county where the sale was made.
    Petition in error to the court of common pleas of TrumbulL county.
    The case is sufficiently stated in the opinion of the court.

      Smythe & Sprague, for plaintiff in error.

      George M. Tuttle, for defendant in error.
   Peck, J.

The plaintiff in error prosecuted a suit in the Trumbull', common pleas to recover the agreed price of twenty-five barrels of whisky, sold and delivered by him to the defendant in error, in-July, 1854.

The case was tried by a jury, and resulted in a verdict in favor' of the defendant.

The plaintiff moved for a new trial, for alleged misdirection by the court to the jury, which motion was overruled, and judgment, rendered upon the verdict.

A bill of exceptions was taken to the decision of the court, and this petition is now prosecuted to reverse it.

It appears from the bill of exceptions that, at the trial, evidence-was given on the part of the defendant tending *to show that, the whisky had not been inspected when it was sold, and received by the defendant; and on the part of the plaintiff, that the probate-judge of Licking county, where the plaintiff resided and where thewhisky was sold, had wholly neglected to appoint any inspector for-the county, though requested so to do by the plaintiff. The court,, thereupon, among other things, charged the jury as follows:

“ That if the whisky sold and delivered by the plaintiff to the defendant was not inspected as required by law, the plaintiff could not recover the price agreed to be paid therefor by the defendant, and that this rule was not changed by the neglect of the probate judge of Licking county to appoint an inspector.”

This instruction is claimed to be erroneous, and good ground for reversal of the judgment.

Section 1 of the “act to prevent the adulteration of alcoholic liquors,” passed May 1, 1854, and in force when the sale by the plaintiff to the defendant was made, after prohibiting the adulteration, by any person, of any spirituous or alcoholic liquors, and the selling or offering to sell any such liquors, knowing the same to be adulterated, proceeds as follows: “ Or shall sell or offer to sell any spirituous or intoxicating liquors not inspected as hereinafter provided, he, she, or they shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding five hundred dollars, nor less than one hundred dollars, and shall be imprisoned in the jail of. the county not more than thirty nor less than ton days.”

By section 2, the probate judge in each county in the state is required to appoint a competent chemist as inspector, “whose duty shall be to inspect all alcoholic liquors imported into or manufactured in the county in which he is inspector, unless the same shall have the inspector's brand of some other county in this state;” *and by section 4, such inspector is required to brand or mark the cask containing the liquor, as “pure” or “impure,” as it may be found upon such inspection.

It is not claimed that the whisky sold by the plaintiff was adulterated, and its manufacture or sale prohibited by the first clauses of the section, but-only that it had not been inspected; and the question therefore arises, whether a sale of pure and unadulterated whisky is prohibited by the act of May 1,1854, unless previously inspected in counties where no inspector has ever been appointed.

Prior to the passage-of this law, the trafile in spirituous liquors in large quantities was not only lawful, but employed much capital. This law took effect upon its passage, and its principal object was to prevent the manufacture and sale of adulterated liquor. The provision requiring an inspection was inserted to prevent surreptitious sales of unwholesome liquors, and provide a test of their purity; and not to prevent the sale of such as were pure. Was it designed by the law to. suspend the traffic in pure liquors, until the several probate judges should appoint competent inspectors for their several counties, and until those judges should find persons willing to accept the office and discharge its duties? If so, the enactment would operate as a serious restraint upon the traffic, and in some localities amount to an entire prohibition. Laws in restraint of trade are never favored, and the phraseology of a law must be clear and conclusive, before a court will give it a construction which affects not only future operations but present investments. The words of the section are, if any person “ shall sell or offer to sell any spirituous or intoxicating liquors, not inspected as hereinafter providedand in the next section it is made the duty of the probate judge of each county to appoint a competent chemist, who is thereupon charged with the duty of inspecting and branding all alcoholic liquors imported into or manufactured within his county. Till this *duty has been discharged by the probate judge, no inspection can be had, and the vendor of liquor can, by no act of his, procure the appointment to be made. If, therefore, the probate judge should fail to appoint, as was the case in Licking county; or if he should fail to find a competent chemist within his county, as occurred in some localities; or if persons competent should utterly refuse to serve, as was also the case in other counties; what is to be done? His liquor is on hand, and he desires to sell it there; but, without any fault on his part, there is no inspector in his county. An inspector appointed in another county could not inspect it for him where it is, for the authority of such inspector is limited to the county in which he was appointed. The dealer must either cart or transport it to some county where there is such an officer, and when inspected, transport it back to his residence ; or else suspend his operations until the probate judge consents to appoint, and competent persons consent to serve. If he could by a mandamus compel a reluctant judge to act, which is at least questionable, there are no means provided for compelling an appointee to serve, or of conferring capacity upon those who aro incompetent to discharge the duties. The statute, fairly construed, does not, wo think, lead to any such inequitable results. The law prohibits the selling of alcoholic liquors which have not been inspected as thereinafter provided, and charges the duty of appointing the inspector to make it upon one of the public functionaries, and until an inspector has been thus appointed and has accepted and qualified under the act, the inspection spoken of, to be “ there inafter provided,” has not in fact been furnished to the owner of the alcoholic liquors. The law evidently contemplates, that the facilities for making the inspection shall be afforded to the owner, and of which he may avail himself, if disposed to do so; and then, very properly, requires him to have the inspection made or to abstain from selling. This construction, reasonable in itself, and perfectly consistent *with the language employed, relieves the act from the grave objections that would otherwise attach to it. It is not, then, an unreasonable restraint upon a trade lawful it itself, but a mere police regulation, which the health and security of the community eminently demand. Should any person manufacture, import, or sell adulterated liquors, knowing them to be such, he would come within the prohibitions of the law, and be subject to its penalties, though there were no county inspector; but, in our-opinion, the vendor of spirituous or intoxicating liquors, which are pure, though not inspected, is not within the prohibitions of the law, nor subject to its penalties, unless an inspector, of whose services he might avail himself, has been appjointed within the county. The penalty and prohibition go hand in hand, and he is not subject to the one, unless liable to the other. We are therefore of the opinion that the court below erred in charging the jury that the plaintiff could not recover for the whisky sold and delivered in Licking county, and not inspected, if the probate ju'dge of that county had neglected to appoint an inspector under the law.

The judgment of the court of common pleas of Trumbull county is, for this reason, reversed, and the cause remanded for further proceedings.

Brinkerhoee, C. L, and Scott and G-holson, JX, concurred.

Sutliee, X, having formerly been of counsel, did not sit in the case.


author: G-holson, J.

text:
    *Alfred J. Anderson v. Thomas Millikin and others.
    1. Persons having a mixture of African blood, ¿ut a preponderance of white blood, or being more white than black, and being otherwise qualified, were, by the settled construction of the section of the constitution of 1802, regulating the exercise of the elective franchise, entitled to enjoy the right of an elector. No change was made in this respect by the corresponding section of the constitution of 1851. The same persons being otherwise qualified, are not to be excluded on account of color, but are entitled, under the present constitution, to vote at all elections.
    2. The plaintiff being one of the description of persons so entitled to vote, having only one-eighth of African blood, and his vote having been refused for that reason only at the election, in 1856, for electors of president and vice-president of the United States, bjr the judges of the election, against whom he brought an action for such refusal: Held, that he was entitled to recover for the violation of a right secured by the constitution.
    Error to the court of common pleas of Butler county.
    This was an action brought by the plaintiff against the defendants, judges of an election, for the refusal of his vote. It was submitted by the parties to the court of common pleas of Butler county, upon an agreed statement of facts, showing: “That the-father of the plaintiff was a white man, without any admixture of African blood; that the mother of the plaintiff is a mixture of three-fourths white and one-fourth African blood; that neither the plaintiff nor his mother ever wore slaves or held as such; that the said plaintiff for twenty-five years last past has been a resident of the second ward of the city of Hamilton, in Butler county, in the State of Ohio; and that, in all respects, he was, at the time of the election hereinafter referred to, a qualified voter at said election, in said ward, unless disqualified on account of the admixture of African blood, as aforesaid. That on the 4th of November, A. d. 1856, the said plaintiff, at the polls of the said ward, offered to vote for electors of president and vice-president of the United ^States, and that said defendants, being then and there the judges of said election, refused to receive the vote of said plaintiff on account of his admixture of African blood, and for no other reason.” The statement further showed that it was agreed “ that the said defendants were not actuated by malice or ill-will in the refusal of said vote, but supposed themselves to be in the line of their official duty, and that, if the law of the case is with the plaintiff upon the facts as herein agreed, he shall recover only nominal damages.
    The ease having been heard upon the agreed statement of facts, j. the court of common pleas rendered judgment for the defendants, j to which the plaintiff excepted. And to reverse that judgment, a petition in error has been filed in this court.

      JV. G. McFarland, for plaintiff.

      Thomas Millildn, for defendants.
   G-holson, J.

The constitution of 1802 contained the following; provision as to the persons entitled to the exercise of the elective franchise; “ In all elections, all white male inhabitants above the age of twenty-one years, having resided in the state one year next preceding the election, and who have jiaid or are charged with a state- or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election.” Art. 4, sec. 1. The use of the word “ white,” in this section, necessarily excluded those inhabitants of the state, though otherwise qualified, who were not white, and called for a determination of the question, who should be deemed “ white,” within the meaning of the constitution ? This question was answered by repeated judicial decisions. It was-considered in view of blood or race, and the rule adopted to meet, the obvious difficulty *of a mixture of blood or races, was that the white race must predominate. There was a white race and a black race, and the obvious intent was, to exclude the latter from the elective franchise. If an inhabitant of the state had an equal portion of the blood of each race, the exclusion still applied but if he had a larger proportion of the blood of the white race, he-was to be regarded as white, within the meaning of the constitution. Polly Gray v. The State, 4 Ohio, 353; Williams v. School Directors, Wright, 579; Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ohio, 376; Chalmers v. Stewart, 11 Ohio, 386; Lane v. Baker, 12 Ohio, 237; Stewart v. Southard, 17 Ohio, 402.

There was, probably, no word in the constitution of 1802, the-meaning of which had been more fully and authoritatively settled, by judicial construction, than the word “ white,” as connected with the exorcise of the elective franchise. And, undoubtedly, at the time of the adoption of the constitution of 1851, persons coming; within the description above stated, in whom the blood of the white race predominated, and who were in other respects qualified, had a right to the exercise of the elective franchise. The first section of the fifth article of that constitution provides that: “ Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state for one year next preceding the election, and of the county, township, or ward in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.” And the question presented in this case is, whether it was the intention -of that section to deprive the persons above described of a right which they had before enjoyed — and of a right so valuable and highly prized as that of an elector ?

In any ordinary case — in any case in which feeling and prejudice ■did not enter as elements to disturb the judgment — no one would probably claim that a most important *right once enjoyed, and, necessarily, in its nature continuous, was abrogated and annulled, unless the intent to do so was clearly and explicitly expressed. Argument and inference from the use of doubtful and indefinite terms, would not be deemed sufficient. We trust that, without influence from any prejudice we might personally feel, or from any which we might suppose to be felt by others, we can, in the language of our official oath, administer justice without respect to persons. And, regarding this as a case to be governed by the ■ordinary rules of construction, we might safely stop, by adopting the language of a distinguished and lamented judge, expressed while acting as a member of the convention which framed the present constitution, and say of the section of it under consideration, that it is substantially the same as the corresponding provision of the old constitution.” Mr. Hitchcock, of Geauga, 2 Debates ■of Convention, 639, 640.

But the interest and importance of the question demand from us further remarks. We are bound to presume, that those who framed the present constitution knew what judicial construction the words of !he former had received. If we look at the record of their proceedings, published under their authority, we know as a fact that the construcción which had been given to the word “white,” was expressly and directly brought to their attention. A proposition was made to strike out the word, so as to remove the exclusion of persons not white, and it was contended “ that the term ‘ white ’ is vague in its signification and has no practical meaning.” In answer, it was said: “Such might have been the case, if the word had not received a practical construction for near fifty years; but there is now no question that may with more safety be submitted to any of our tribunals, from the Supreme Court to the justice of the peace.” Mr. Worthington, 2 Debates in Convention, 639. And a member in favor of the proposition, commenting. on the decision of the courts as one they had been obliged to make to get over the ^difficulty from the use of the word “white,” expressly stated that decision to be, “that a person having less than half black blood shall have the rights of a white man.” Mr. Humphreville, 2 Debates of Convention, 553. In view, then, of this knowledge, presumed and actual, of the construction the word “white” had received in reference to the exercise of the elective franchise, we find the same word in the same connection in the present constitution. By the clear and well-settled rules of construction, we are bound to conclude that the word was used in the same sense, and was intended to include all persons whom the-meaning it had received would embrace.

To induce any doubt as to the correctness of this conclusion, reference must be had to words in the context, not found in the corresponding provision of the old constitution. The only words-from which any such doubts can possibly arise, are “ citizens of the United States,” substituted for the word “inhabitants,” used in the former provision. And we do not suppose that this donbt was ever-entertained, until after a recent decision of the Supreme Court of the United States. Dred Scott v. Sandford, 19 How. 393. But it is a mistake to suppose that the question, whether any degree of the blood of the African race would prevent a person from being a citizen of the United States, was presented or decided in that case. On the contrary, the plaintiff in that case was alleged, in the plea in abatement, to be “ a negro of African descent, whose ancestors were of pure African blood, and who were brought to this country and sold as slaves.” 19 Howard, 400. And it was said by Taneyr C. J., in the opinion 6f the court: “ The question is simply this: Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities guaranteed by thát instrument to the citizen ? One of which-*rights is the privilege of suing in a court of the United States in the cases specified in the constitution. It will be observed, that the plea applies to that class of persons whose ancestors were negroes •of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is whether the descendants of such slaves, when they shall be eman-cipated, or who are born of parents who had become free before their birth, are citizens of a state in the sense in which the word -citizen is used in the constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking, in this opinion, of that class only; that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.” 19 Howard, 403.

Indeed, it is not probable that the Supreme Court of the United •States would have announced a rule excluding persons, having any mixture of the blood of the African race, from the rights of citizenship, without reference to the constitutional and legal provisions "then and now in force in many of the states, having a strong bearing upon the question, and upon the effect of such a rule.

In North Carolina, where, before the adoption, in 1835, of amendments to the constitution of the state, it is well known that free 'blacks and mulattoes, under the general designation of free men, had the right of suffrage. The change then made is in these words : “No free negro, free mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive (though one ancestor of each generation may have been a white person), shall vote for members of the senate or house of commons.” Rev. Code, N. C. 23.

The first section of the fourth article of the constitution of Tennessee provides that: Every free white man, of the age of twenty-one years, being a citizen of the United States and a citizen of the county wherein he may offer his vote, *six months next pre-ceding the day of election, shall be entitled to vote for members of the general assembly and other civil officers for the county or district in which he resides: Provided, that no person shall be disqualified from voting in any election on account of color, who is now by the laws of this state a competent witness in a court of justice against a white man.” The rule as to the exclusion of witnesses is thus stated in the code of Tennessee : “A negro, mulatto, Indian, «or person of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each .generation may have been a white person, whether bond or free, is incapable of being a witness in any cause, civil or criminal, except for or against each other.” Section 3808.

It is well known that in some of the states there are three classes of persons — -white citizens, slaves, and free negroes and mulattoes, as they are usually designated. To this third class another designation, mustizoes, has been added, and with this addition, it was said, in South Carolina, that “ the law recognizes only three classes of persons; freemen under the constitution, or citizens; slaves and free negroes, mulattoes and mustizoes, who constitute the third class.” "White v. Tax Collector, 3 Rich. 136-139. Now, it is evident that, to determine whether a person belongs to this third class, cither some rule must be adopted, or it must be loft to the uncertain and, to a great extent, arbitrary discretion of those called on to act in particular cases. In most of the states, whose laws or decisions we have been able to examine, a definite rule, founded upon the degree or quantity of the blood of the excluded class, has been adopted. In Yirginia, the designation is “ free negroes and mulattoos,” and the term is defined by statute : “ Every person who has one-fourth part or more of negro blood, shall be deemed a mulatto; and the word negro in any other section of this, or in any other statute, shall be construed to mean mulatto as well as negro.” Code of Yirginia, c. 103, sec. 3. There is a ^definition almost in the same words, in the statutes of Kentucky (2 Revised Statutes of Kentucky, 359); of Arkansas’ (Revised Statutes of Arkansas, 584) ; of Florida (Thompson’s Dig. 537)..

The constitution of Georgia provides that the electors of the general assembly shall be citizens of the state. A statute of the state provides a somewhat singular mode by which citizenship is to be determined. Any free white citizen is allowed to file a petition in court, as in a suit of a civil nature, against any person who may claim to exercise the rights and privileges of a free white citizen of the state, in which he shall allege that the person so claiming is of mixed blood, and not a free white person. After provisions made for process, trial, and judgment, two concurring verdicts being required, it is provided that “it shall be lawful for the plaintiff to prove that the defendant is descended from, and stands in the third generation to him or her who was or is not a free white citizen of the state, or of any other state whose constitution and laws tolérate involuntary servitude, or that said defendant has one-eighth of negro or African blood in his or her veins.” T. R. R. Cobb’s New Dig. 531. And as a result of this statute, it is said in Bryan v. Walton, 20 Ga. 479-512, of a person having less than one-eighth of African blood, that “ he may exercise the rights and privileges of a freeman.”

It has been said that “those least disposed to consider persons tO' bo white who have any proportion of African blood, have admitted that persons possessing only one-eighth part of such blood should bo regarded as white.” Bailey v. Fiske, 34 Maine, 77, 78; 2 Kent’s. Com. 36, note, 7 ed. The prevalent disposition appears to be that some degree of blood affords the most satisfactory rule; but in South Carolina a different rule prevails. No rule as to degree of blood has been prescribed by statute or settled by decision, and there appears to bo a difference *of opinion as to the propriety of such a rule. In the first case in which the question arose,, reference was made to the law of Louisiana and the Code Noir of France for her colonies, as providing that “the descendant of a white and a quadroon, or a person having only one-eighth part of negro blood, is accounted white.” And it is added: “Pci’kajjs it would be desirable the legislature should adopt some such uniform rule hero.” State v. Davis, 2 Bailey, 558-560. But in a subsequent case it is said: “ It would be difficult, if not impolitic, to define by precise and inflexible rules the line of separation between the two classes.” White v. Tax Collector, 3 Rich. 136-139. The decisions in the state show that no rule has remained fixed. In the case of The State v. Davis, the rule stated was “that where there is a distinct and visible admixture of negro blood, the person is to be denominated a mulatto or a person of color.” 2 Bailey, 558, 559. But in the case of the State v. Canty, it was said: “ The condition of the individual is not to be determined solely by the distinct and visible mixture of negro blood, but by reputation, by his reception into society, and his having commonly exercised the privileges of a white man.” 2 Hill, S. C. 614-616. And it is said that it must bo “regarded as settled, that it is not every admixture of negro blood, however slight and remote, that will make a person of color, within the meaning of the law.” Id. 616; White v. Tax Collector, 3 Rich. 136-140.

But it is useless to multiply instances or authorities. We do not think one can be found which will countenance the idea that any the least admixture of African blood will preclude a person from being considered a citizen of the United States. Of course we can not conjecture, and it is a matter with which we are not properly concerned, what rule upon the subject the courts of the United States may think proper to adopt in cases which may hereafter present the question for their determination. ¥e feel entirely clear that no restriction or limitation *upon the meaning of the term “ citizen of the United States,” supposed to result froiñ the decision which has been recently made by the Supreme Court of the United States, or from any which may be made, can affect its meaning as used in our constitution.

There can be no doubt that those who framed our constitution, had the power to confer the right of suffrage upon any class or description of persons. This is nowhere more fully and clearly admitted than in the case of Dred Scott v. Sandford, 19 How. 408.

If we were satisfied that the framers of the constitution intended to confer the right of suffrage upon a particular description of persons, and, in doing so, used a phrase in a sense wlíich, as then understood, was sufficient for the purpose, and which is shown to be a mistaken one only by subsequent research and newer light, we would still be bound to give effect to the sense in which the phrase was used. The question is not, what the phrase citizen of the United States ” means in the light of the decision in the case of Dred Scott v. Sandford, but what the framers of our constitution intended by the use of that phrase, and what, in the connection in which it is found, and with the light and knowledge possessed when it was used, it was intended to mean.

We think it entirely clear, that the phrase citizen of the United States ” was inserted in our constitution with a view to the exclusion of aliens until they should be naturalized, and thus become citizens of the United States. We are confident that the phrase was used with no reference to color, and can not believe that the idea was then entertained that, independent of the word “white,” the phrase “ citizen of the United States” would operate to exclude any person, on account of color, from the exercise of the elective franchise. In truth, it seems too clear for argument, that, had the phrase “ citizen of the United States ” a then well-understood connotation or signification, that necessarily carried along with it the attribute of ^whiteness of color, and, much more, of the absence of any admixture whatever of blood •or color, the word “ white ” would have been applied as a qualification to the phrase. “White male citizen of the United States” is the language. Now, if a citizen of the United States must ■necessarily be, and can only be, a white person, why say white •citizen of the United States? The very use of the term “white,” ■as applied to a citizen of the United States, necessarily implies that those who used it, supposed and understood that there might be citizens of the United States who were not white.

It so happens, that we are not left merely to presumption that the phrase “ citizen of the United States ” was used by the framers of the constitution in a general sense. A motion was made in the convention, to strike out from the section under consideration the words “United States,” aud insert “this state;” and, singularly enough, the danger of using an expression, the meaning of which might be altered or controlled by an authority independent of the state, suggested itself to a member, and was expressed. Mr. Heemelin, 2 Debates of Convention, 9. But in answer, it was said: “ Who shall be considered citizens of this Union ? I take the broad but tenable ground, that all should be regarded as citizens of the United States who owe allegiance to the government of the Union, whether they are vested with the elective franchise or not.” Mr. Taylor, Id. 9. “ American citizenship is a generic and comprehensive term, and much more so than the term ‘ subject,’ under a monarchical form of government. The term a citizen of the United States,’ therefore, includes men, women, and children' — every one, in short, who can demand the official protection of the federal government, or may be amenable for the ■crime of treason.” Mr. President Medill, Id. 9.

We are aware that the general assembly of the state, by an act passed April 2, 1859, has expressed a view of the meaning of the word “ white,” in the section of the ^constitution regulating •the elective franchise, in conflict with that which we have stated to be the one intended. There are cases in which subsequent legislation may be properly looked to, as reflecting light on the construction of former laws, though it would not furnish a rule obligatory upon the courts. There are cases involving this very question of color, in which legislative intent would properly be our guide. Such was the case as to the classification of youth entitled to the benefit of the public schools, in which the majority of this court held, that the legislature had expressed an intention that a classification should be made, founded as well upon the visible admixture of color and upon social intercourse, as upon the degree of the blood of the African race. Van Camp v. The Board of Education of Logan, ante, 406. But, surely, it can not be claimed, and will not, at this day, be claimed by any intelligent statesman or lawyer; that it is within the scope of legislative power to give to the courts an authoritative construction of a provision of the constitution of the state. The simple question with us is, in what sense the word white ” was used in the constitution, and that sense, when ascertained, we suppose to be obligatory both upon us and the general assembly of the state.

The word, we have shown, had received, at the time of the adoption of the present constitution, a clear and settled construction. Doubtless, this construction may not have been satisfactory to many persons; but the time and the opportunity to have expressed dissatisfaction, were during the deliberations of the convention. It was entirely competent for the convention to change the construction which the courts had given, and, we can not doubt, had a change been desired or intended, it would have been made.

In this view, it is obvious that it would be a grave error to suppose that the judges of this court, whatever might be their individual views, have the same right to re-examine the construction given to the word “ white,” as ^judges sitting under the old •constitution. Indeed, a settled construction, acted upon and acquiesced in for a series of years, is usually obligatory upon judges, whatever doubts they may have of its correctness. But whenever that construction has been acted upon in the framing of laws, and, much more, in the framing of a constitution, to attempt a change might well be regarded a more arbitrary exercise of power, and beyond any legitimate authority of judges.

We are unanimously of the opinion, that the description of persons of which the plaintiff is one, were not deprived by the present •constitution of the right to the exercise of the elective franchise, which they enjoyed under the construction which the old constitution had received. The plaintiff, therefore, was entitled, under the constitution, to vote at the election, and was deprived of this constitutional right by the act of the defendants. He is therefore entitled to a judgment in his favor, against the defendants, under the agreed statement of facts.

The judgment of the court of common pleas reversed, and judgment entered for the plaintiff.

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


text:
    The Canton Union School v. Joseph Meyer and others.
    A township hoard of education, organized under the general school law of March 14, 1853, has the power, with the consent of the board of education of a town district of the same township, organized under the act of February-21, 1849, to make transfers to such district of territory adjacent thereto, and within the township.
    Error to the district court of Stark county.
    *The defendants in error, who were plaintiffs below, filed their petition against the plaintiff, together with the board of education of Canton township, and the treasurer of Stark county, seeking to enjoin the collection of certain taxes which had been assessed upon their property severally, for school purposes, at a rate of taxation determined by the board of education of the Canton union school. The only question in this case, as shown by the record, was whether the property in question was within the limits of the- Canton union school district at the time said taxes were-assessed thereon.
    The record shows the following state of facts:
    The Canton union school was organized July 21,1849, under the act of February, 1849, entitled “an act for the better regulation, of the public schools, in cities, towns,” etc. Swan’s R. S. 858.
    The board of education of Canton township was organized under the act of March, 1853, entitled “ An act to provide for the reorganization, supervision, and maintenance of common schools.” Swan’s R. S. 836.
    At the regular session of the township board, held pursuant to the requirements of the twelfth section of the last-mentioned act, on the 17th and 18th days of April, 1854, said township board of education resolved, by a vote of six in the affirmative to three in the negative, to annex to the said Canton union school district certain territory within the same township, and adjacent to the district as it before existed, which territory, so ordered to be annexed, •embraced the lands and property of the plaintiffs below, upon which the tax in quesion was subsequently assessed.
    This order of annexation was duly certified by the clerk of the township board, to the board of education of the Canton union ¡school, and said territory was accepted by the latter board, on the 24th of April, 1854. On the 28th of the same month the township board met and voted to rescind their previous order of annexation; but the union-*school board refused to agree to or .acquiesce in this rescinding resolution.
    Taxes, for school purposes, were subsequently assessed by the •county auditor, for the year 1855, upon this disputed territory, as .an integral part of the said union school district- according to the •estimates of its board of education, at the rate of three and one-half mills on the dollar.
    Under the act of 1849, the union school board was authorized, .annually, to determine on a rate of taxation for general school purposes, not exceeding four mills on the dollar, upon the taxable property of the district, while the rate of taxation for similar purpose by the township board is limited, by the act of 1853, to two mills on the dollar.
    The plaintiffs below obtained a judgment in their favor, in the' -court of common pleas, and also in the district court, to which the •case was taken by appeal. The district court found that the property described in the plaintiffs’ petition “ is neither situated within, nor is part of said Canton union school district, and that the tax sought to be imposed on said property, and assessed, .and attempted to be collected by said county treasurer, is illegal and void ; ” and thereupon ordered that the provisional injunction ■which'had been previously allowed to restrain the collection of the tax should be made perpetual.
    The plaintiff in error now seeks to reverse this order.
    The bill of exceptions, taken on the hearing, shows that the dis•iriet court “ held, and so decided, that the said boards of education of Canton township, and the Canton union school, respectively, •did not possess the legal power to make any alterations of the territory of the Canton union school, because the Canton union school was organized under the act of February 21, 1849, and had not accepted the provisions of the act of 1853; and the township board of education, acting under and by virtue of tbe act of' March 14, 1853, had no power to make any agreement with the-board of education of any city or village with *the terri-v tory thereto annexed, to make transfers of territory, not within, the limits of such corporation, to or from such district, unless the same had been previously organized under the said act of March. 14, 1853.”
    This holding of the court is assigned for error.

      Thomas Goodman and G. W Belden, for plaintiff in error.

      Brown & Meyer and TJpham & Alexander, for defendants in error.
   Scott, J.

The question presented in this case is: Can a township board of education, organized under the general school law of 1853,. with the consent of the board of education of a town district of the same township, organized under the act of February 21,1849’, make-transfers of adjacent territory to such district?

To understand properly the effect of the act of 1849, it is necessary to know how the law stood on the subject of transfers of territory, at the time of the passage of this act. The school law then, in force was the act of March 7, 1838, with its several amendatory acts. By this act, the township trustees were required to lay off their respective townships into school districts, which they were empowered frop. time to time to alter, at their annual meetings, so as to promote the interest and convenience of the inhabitants.

By the 33d section of the same act, every incorporated city, town,, or borough, not otherwise regulated by charter, was created a separate school district, to be under the supervision of the town authorities ; and the voters of the town were authorized to elect school, directors therein. The 34th section gave the township trustees. power, by and with the consent of the school directors of any such city, town, or borough, situate in their townships, “ to attach thereto* such parts of their respective townships as lie adjacent thereto.”

*So stood the law at the time of the passage of the act of 1849. This act dealt with the existing system as it then stood. It. recognized the school districts in towns, villages, etc., as existing-organizations, the territorial.limits of which had been assigned, and might be changed, in the mode prescribed b3r laws then in force. It was no part of the object of this law to make any change in boundaries of existing school districts, or to prescribe the mode of effecting such changes of boundary as the ever-varying circumstances of communities might, from time to time, demand. All this was already provided for by legislation which was not supposed to need amendment.

But the object and purpose of the act of February, 1849, as indicated by its title, was to provide for the better regulation of the public schools in cities, towns,” etc. It was not intended to create new districts, but to provide a better system of regulating the schools in existing ones. It substituted for the former board of three directors, a new one, to consist of six members, to be called a board of education ; prescribed their powers and duties; gave directions as to the management of the schools, the school moneys, and interests ; and also prescribed the mode in which an organization under that act might be affected, by such districts as chose to-adopt it. By the terms of its first section, it might be adopted by any incorporated city, town, or village (not governed, as to schools, by any special law), containing within the town-plat, as laid out and recorded, two hundred inhabitants or more, “ with the territory attached, or hereafter to be attached to said city, town, or village for school purposes.” This provision evidently contemplated that transfers of territory might be thereafter made to any tdwn district, as before, by the township trustees, “ with the consent of the school directors ” of such town district. The act contains no limitation of the then existing powers of the township trustees -T and without providing any new mode of attaching territory, still speaks of territory “ hereafter to be attached.”

*It is true, that the act of 1849, in its 14th section, declares that “upon the adoption of this act, in the manner herein provided, by any city, town, village, or district, all laws now in force therein, inconsistent herewith, are hereby repealed.” But none of its provisions are inconsistent with that part of the law of 1838 which authorized the township trustees to transfer adjacent territory to town districts. The act of 1849 does not deal with that subject. And as it manifestly left the powers of the township trustees tinimpaired, it follows that they could still transfer territory to a town district, with the consent of the school directors therein.

What then was the effect of the law of 1853, now in force, upon that subject?

As to the boundaries of school districts then existing, it made no changes. Whilst it made each organized township in the state a single school district for the general supervision of educational interests, it'declared that the several school districts, then existing, or thereafter to be established, in the several townships, should be regarded as sub-districts. It created a board of education for each township; but excluded from its jurisdiction the territory included within the limits of any city or incorporated village, with the territory annexed thereto for school purposes, -which should organize under that act, or which then was, or might thereafter be governed, as to schools, by any special or other act specified in its 67th section, and among these was the act of February, 1849. To this township board of education, consisting of the township clerk and one director from each sub-district in the township, it gives, in the 14th section, the power of altering and changing, at any regular session (to be held on the third Mondays of April and October, in each year), the sub-districts of the township; thus giving to the township board of education all the powers over this subject which were formerly conferred on the township trustees, and dispensing with previous notice of contemplated changes *in the districts, because they would each be represented in the board by a director acquainted with their wants and their interests.

It has always been the policy of our school laws to provide for changes in the boundaries of school districts, and thus, by giving flexibility to the system, to adapt it to the ever-varying wants, of a growing country, in which the convenience of the present can but faintly indicate the necessities of the future. Accordingly, the act of 1853 carries out the former policy, and, by the thirty-second section, makes each city or incorporated village, including the territory annexed thereto for school purposes, which is not otherwise specially regulated by charter or governed as to schools by laws specified in the 67th section, and which, with the territory annexed, contains not less than three hundred inhabitants, a separate school district, empowered to elect its own board of education, which shall have the same powers as the township board; but still providing that, by agreement between the township board and the board of such town district, transfers of territory, not within the limits of such corporation, maybe made to or from the adjacent country districts. The 35th section gives to the board of education of any city or incorporated village all the powers conferred upon the township boards ; and requires the performance of the liko duties, so far as applicable.

It is very clear, then, that by the consent of .the town districts provided for by the act of 1853, transfers of territory might be made to and from them, by the boards of education of their townships, and that such town districts were placed by this act on the same footing of independence as those organized under the law of 1849. The act of 1853 left the law of 1849, and special acts under which organizations had been effected, in full force; its main purpose being to provide for the organization and regulation of schools outside of such special districts. Its provisions do not therefore, in terms, embrace such special ^districts, except in a few particulars specified in section 67. But this last-named section provided that “ this act shall not be so construed as to repeal, change, or modify in any respect” the provisions of the act of 1849, or any other special acts in relation, to schools. We think, therefore, that it must have been intended to leave the powers, rights, and duties of the boards of education, organized under the act of 1849, wholly unimpaired and unaffected. If they had the power, before the passage of the act of 1853, to accept and incorporate into their district adjacent territory, that power was not taken away. The township trustees, it is true, have no longer power to transfer territory, but the township board of education is fully empowered to make all changes in the territorial limits of districts which they may think expedient; they are invested with plenary powers upon this subject, as to all territory within their jurisdiction, and are expressly authorized to make transfers of territory to or from any town district created by that act, and whose board of education may agree thereto. Town districts organized under the act of 1853, were thus made as independent of the township boards of education as were those organized under the act of 1849. And the language of the 35th section, which, in terms the most general’ and comprehensive, embraces “ the board of education of any city or incorporated village,” without respect to the law under which it may have been organized, makes each of them co-ordinate and equal, as to general powers, with the township boards, and requires them to do and perform the like duties, in all respects, so far as applicable.” Those powers and duties can not, it is true, be exercised or discharged, by any district, in a manner inconsistent with the law of its organization, which the 67th section leaves in full force. But there is nothing in the act of 1849 inconsistent with the power of accepting or parting with territory outside of the corporate limits of a town. That act, as we have seen, does not treat of this subject. If additional territory be brought within the ^limits of the city or incorporated village, the public schools of which are organized undei the act of 1849, the township board of education is immediately ousted from all jurisdiction over the same, by the 1st section of the act of 1853, 'and this added territory becomes a part of the town district, without the consent of the school authorities on either side. It could not, therefore, have been intended that the boundaries' of districts, acting under the law of 1849, should remain permanently fixed, as they existed at the time of their organization. Besides, of what avail could it be to attempt a discrimination between districts organized under the act of 1849, and those under the law of 1853 ? Both those acts are in full force ; and the 1st section of the former, and the 66th section of the latter, enable all such districts to change from the one system to the other at their option, and as often as the majority of their voters may choose. Now, of what advantage could it ho to require a town district to' adopt the act of 1853, in order to obtain additional territory, when, after affecting this object, it could immediately readopt the act of 1849 ? It is hardly reasonable to suppose that the legislature intended that changes of district limits, which might be deemed expedient both by township and town boards of education, should be effected only in this circuitous and troublesome mode. The act of 1853, leaving that of 1849 in full force, gives perfect freedom of choice between two systems for the regulation of schools; and there is no reason to believe that the legislature intended to place any obstacles in the way of the operation of either. And we are satisfied that any such a construction of -the proviso contained in the 32d section of the act of 1853, as would authorize a transfer of territory under the one system and prohibit under the other, would be at variance with the legislative intention, however it might be justified by the literal terms of the section.

The view which we have taken of the statutory powers of boards of education, is in accordance with the general *understanding and practice through the state. Many, such transfers of territory have been made; and public policy requires that they should be upheld, if possible, under a fair construction of the law.

The defendants in error prefer a law which permits but light taxation for school purposes, while the majority of their district prefer a different one. And the hardship complained of results from the principle that on such questions majorities must govern. We think that the transfer of territory made in this case by the board of education of Canton township, and accepted by the board | of education of the Canton union school district, was valid and' effectual, and could not be rescinded without the consent of both parties. The judgment of the district court will therefore be reversed, the injunction granted in the case dissolved, and the petition of the plaintiffs below dismissed.

Brinkerhoff, C. J., and Sutliff., Peck, and Gholson, JJ., concurred.


text:
    Adafna Slanker v. John and Horace Beardsley.
    1. The act of April 17, 1857, “ securing to married women such personal property as may be exempt from execution,” etc., prohibits the husband from the sale, without the wife’s consent, of any property which would be exempt if an execution had been levied thereon, and he, in good faith, had asserted' the exemptions secured to him by the statute.

      2. Where the property thus sold is not in itself specifically exempt, but may become so upon a selection to be made by the debtor, the husband is still-prohibited from such sale, if his entire property, sold and unsold, is insufficient to satisfy the exemption secured by the act.
    3. The said act of April 17, 1857, confers upon the wife, where property thus, exempted has been sold without her consent, an election to maintain an action against the purchaser for the specific property sold, or a suit to recover its value.
    *In error to the court of common pleas of Huron county. The facts appear in the opinion of the court.

      Kennan & Stewart, for plaintiff.

      Strong & Kellogg, for defendants.
   Peck, J.

The plaintiff in this action is a married woman, suing in her own name and without joining her husband, to recover the-value of two horses and a harness, claimed to have been exempt from sale upon execution, and which were sold by her husband to the defendants in December, 1858, without her consent. The only -question is whether the facets stated in the petition and admitted by the demurrer, make a case within the act of April 17, 1857 (54 O. L. 219), “securing to married women such personal property as may be exempt from execution,” etc. This statute, so far as it is applicable to the case made in the petition, reads as follows:

“ Seo. 1. Be it enacted that no married man shall sell, dispose of, ■or in any manner part with any personal property which now is or may hereafter be exempt from sale upon execution, without having first obtained the consent of his wife thereto.

“ Sec. 2. If any married man shall violate the provisions of the foregoing section, his wife, in her own name, may commence and prosecute to final judgment and execution, a civil action for there-covery of such property, or its value in money.”

The demurrer admits the marriage and cohabitation of the plaintiff with John Slanker at the time and for years before the sale, in Huron county; their ownership of the said horses and harness, •which then and before that time had been used and employed by the said John in the business of agriculture; that the plaintiff and her said husband are not the owners of any homestead or other real estate, *and that the entire value of all the ¡jroperty, of -every description, belonging to them, including said horses and harness, did not amount to the sum of $300. And it further admits, that the defendants, in December, 1858, with a full knowledge of all these facts, purchased said horses and harness from the husband of the plaintiff without her consent, and have converted the same to their own use.

If the horses and harness, at the time of such sale and conversion, were exempt from sale upon execution against the husband, within the meaning of the first section of the act above referred to, the sale by the husband without the wife’s consent, expressed or implied, was such a violation of its provisions as authorized the plaintiff, under the second section of the'act, to maintain the present action in her own name, to recover from the defendants the value thereof.

This exemption is claimed under and by virtue of the act of March 27, 1858 (55 Ohio L. 23), amendatory of the 8th section of the homestead law of March 23,1850, which amended section reads ,as follows:

“ Sec. 8. 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, personal property, to be-selected by such person, not exceeding $300 in value, in addition to-the amount of chattel property now by law exempted. .The value of said property to be estimated and appraised by two disinterested householders of the county, to be selected by the officer holding the-execution, who shall be sworn by said officer impartially to make-such appraisement.”

This statute, like the others exempting property from sale upon execution, presupposes a levy upon property claimed to be exempt, and a requisition for its discharge by the execution debtor; but the-act of April 17, 1857, has reference to a voluntary sale by him who, under the ^exemption statutes, is required to demand its restoration, and does not require that there should be any seizure, or-attempted seizure upon execution, or any requirement for its release. The only reasonable construction of the law of 1857 is, to-prohibit the husband from disposing of any property, without the-consent of his wife, which would have been exempt from sale, if an execution had been levied thereon, and he had, in good faith, insisted upon all the exemptions secured to him by the statutes. The-petition shows that the husband of petitioner was a resident of Ohio, and the head of a family, and not the owner of any homestead; he was, therefore, within the purview of the amendatory act. of March 27,1858, entitled to hold exempt from sale upon execution, personal property to be selected by him, not exceeding $300 in value, in addition to the amount of chattel property exempted by previous-laws. If an execution had been issued and levied upon the horsos- and harness sold by him to defendants, and he had, in good faith, insisted upon the exemption secured by this act, it is manifest that the officer would have been obliged to redeliver them to him, be-caiise it is admitted by the demurrer, that the entire property of . the debtor, including the property supposed to be levied on, did not amount in value to the exemption prescribed. -

But it is said that the property to be retained by the debtor in-lieu of a homestead, is to be selected by him, and until such selection is made, no one can know whether he desires to retain the specific articles levied on or not. Where it appears that the debtor had, at the time, more personal property than he was by law entitled to retain, a serious difficulty might arise; but where, as in the-present case, all that he owns is confessedly insufficient to satisfy the exemption, no such embarrassment exists. It is no longer a case-•of selection, but one of mere demand. He might insist upon the restoration of the whole, and if so, a proper construction of the act of 1857 prohibits him from disposing of it without the consent of his wife.

*But it is insisted that the exempted property which the 'husband, by the act of 1857, is prohibited from selling without the consent of his wife, should be limited to the sale of such property as is specifically and absolutely exempt, and not extended to prop■erty which the debtor is to select; that, in the one case, the de-scription of the property is calculated to put the vendee upon inquiry, while the other would enable the vendor and his wife, •separately or by collusion, to perpetrate gross frauds upon third persons, and render it wholly unsafe to purchase any personal property from a married man, unaccompanied by his wife, or her written authority. There is apparently much force in the suggestion ; but, after all, it is perhaps more specious than solid. In all purchases of personal property in this country, the vendee necessarily assumes the risk of the title and authority of his vendor. If he had no title, and no authority to sell, the property is subject to reclamation from the vendee. To give to the act of 1857 the extremely limited application claimed for it by the defendants • would render it altogether insignificant in its results. The articles ■specifically and absolutely exempt are extremely limited. Most-of the articles enumerated are not exempt as.of course, but their exemption is made to depend upon their quantity or value, or on the absence of other articles for which they are to be substituted. Frost v. Shawk, 3 Ohio St. 271. The articles absolutely exempt, ■and to which the defendants ask to have the statute of 1857 restricted, are mostly not objects of barter and sale, nor readily convertible to the support of a family. The legislature, in the exemption as a substitute for a homestead, certainly designed to exempt any property, to the required amount, belonging to the debtor, the •use or sale of which might contribute to the maintenance of the wife and family. The legislation prior to 1857 prohibited all forced sales of such property, and the law of 1857, ministering to the same end (securing a support to the wife and family), prohibited all voluntary sales to which the wife *did not assent. The statute prohibits the selling of any property then or thereafter •exempted, and not articles specifically exempt. Under the construction contended for, the substitute for a homestead could never ¡■advantage the wife in a case of sale by the husband, as it is to be selected by the husband, and from articles not otherwise exempt. Such a consequence could not have been intended by the legislature. In short, we think the interition of the legislature too clear .and unmistakable to warrant us in frittering away the enactment because it may possibly lead to abuses. The act is somewhat ■crude — perhaps impolitic — and may require amendment, for the protection of purchasers, the family, and future creditors; but these are considerations for the legislature, and not for the judiciary.

Again, it is insisted that the action, under the averments of the petition, should have been for the recovery of the specific property, and not for its value ; and in this connection it is urged that the action spoken of in the second section of the law of 1857 is merely an action for the recovery of specific personal property, and the words “ or its value in money ” have reference to the recovery of damages in such action, under section 186 of the code, where the property has not been seized, or the plaintiff has failed to give the undertaking required by the code. We think, however, that the second section of the act of 1857, above quoted, confers upon the wife the election to sue, either for the specific property or for its value in money. The purchase was prohibited by law and a violation of the plaintiff’s rights; and, uj>on common-law principles, she might pursue either remedy, retake the property, or recover its value. The statute merely confirms this common-law right of election. The consent required by the statute, and denied in the petition, need not necessarily precede the sale. It may be precedent, concomitant, or subsequent. It may also be either express or implied, and may be proved by positive or by circumstantial •^evidence. With this latitude for the ascertainment of the truth, there is little cause to apprehend any successful collusion between the husband and wife to defraud a purchaser; but, should there be, the proper remedy is a repeal or amendment of the law by the constitutional authority. It should be abrogated by legislative enactment, and not nullified by judicial interpretation.

We’ are therefore clearly of the opinion that the Huron county court of common pleas erred in sustaining the demurrer to the petition of the plaintiff, and that the facts set forth in her said petition, if true, did constitute a valid cause of action, under the statute, in favor of the plaintiff.

The judgment is therefore reversed, and the cause remanded for further proceedings.

Brinicerhoee, C. J., and Scott, Sutliee, and Gholson, JJ., concurred.