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Van Camp v. Board of Education of Logan.

of the court says:

“We regard this matter as clearly settled by the interpretation which the expression in the constitution has received by this court on the circuit, and in bank. In 1831, in the case of Polly Gray v. The State of Ohio, and in 1833, in the case of Williams v. School Directors, it was held that in the constitution, and the laws upon this subject, there were enumerated three descriptions of persons, whites, blacks, and mulattoes; upon the two last of whom disabilities rested; that the mulatto was the middle term between the extremes, or the offsprings of a white or black; that all nearer white than black, or of the grade between the mulattoes and whites, were entitled to enjoy every political and social privilege of the white citizen ; that no other rule could be adopted so intelligible as this; and that further refinements would lead to inconvenience, and to no good result."

At the same term of the court, in the case of Chalmers v. Stew422] art, 11 Ohio, 386, the same construction of *the word “white" was reaffirmed. Judge Wood, in delivering the opinion of the court in the case, uses the following language: “Who white children are, bas in principle been determined by this court at the present term. Thacker v. Hawk et al. The majority, or predominance of blood, either black or white, carries with it conclusive evidence of the qualifications or disqualifications conferred or imposed by our statutes."

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

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Van Camp v. Board of Education of Logan.

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giving judgment for the plaintiff. And although in two of the preceding cases, to wit, Jeffries v. Ankeny et al., and Thacker v. Hawk et al., Judge Read dissented, he seems to have acquiesced in this last case of Lane v. Baker et al.

The courts, I believe, bave uniformly adhered to the rule expressed in Gray v. The State, in relation to the disabling statutes toward “ black “mulatto " persons. *Thus is the case [123 of Jordan v. Smith, 14 Ohio, 199, the plaintiff, a white person, bad brought a suit against a negro, and to sustain his cause of action, introduced the evidence of a black, which was objected to by the defendant's counsel. Judge Hitchcock, in delivering the opinion of the court, thus remarks upon the disabling statute of 1807 : “The law says no black or mulatto person or persons shall be permitted to be sworn or give evidence' where either party is a white person. 1 Chase, 556. But it is said this statute confers upon a white man a personal privilege. He may at his election permit or refuse the evidence of a black witness, and that this black opponent has no right to object to a witness of his own color. Such is not the law. By positive statutes, the black man is an incompetent witness; and I have yet to hear that one party to a suit bas any better right than the other to object to a witness on the ground of his competency," thus adhering to a strict construction of those disabling statutes.

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

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

And this holding of our courts I regard as strictly in *ac- [424 cordance with the general rule applicable to such statutes. Statutes

Van Camp v. Board of Education of Logan.

which are in restraint of natural liberty, or which derogate in any other manner from the general law, and laws which have an apparent bardship in them, are to be interpreted in such a manner as not to extend beyond what is clearly expressed in the law to any consequences to which the law does not necessarily extend.

In the passage of the act of February 10, 1819, the legislature, as well as in the preceding act of March 7, 1848, evidently intended to express their approval and acceptance of the long and uniform judicial construction given in this state to the laws descriminating between “black or mulatto " persons on the one hand, and white persons upon the other. Hence, in the introduction of the word "colored " in that act, for brevity, in the place of the words "black or mulatto," as used in former acts, it is especially provided by section 5 that the term "colored," as used in the act, shall be regarded of the same signification as the term black or mulatto." And the act of 1853, now under consideration, uses the words " colored children" in the same sense as used in the law of 1849. This is evident from the language of the act.

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

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

An amendment of the school law by a provision allowing any 425] of either class, upon permission first obtained and *on due notice given, to be taxed with and attend the schools of the other class, would obviate such objection. The line of caste would thus become to some extent self-adjusting, to meet the actual social classification of the youth, as existing in fact in every district. But it seems to me alike unwise and wholly out of character with the progress, the general intelligence, and liberality of the age at this time—more than ten years after the repeal of the “black laws,” so called, and more than half a century after a liberal and bumane interpretation of those disabling statutes has been inaugu

Burgess v. Everett.

rated, and constantly ever since then maintained—to overrule all the decisions of the many able and wise judges who have preceded us, and to give an extent and effect to those disabling statutes, which this court has always heretofore, time and again, refused to do. For these reasons I utterly dissent from the opinion expressed by my brethren in this case.

ALEXANDER M. BURGESS v. ISAAC EVERETT.

The benefits of the 8th section of the act of March 23, 1850, “to exempt the

homestead of families from forced sale on execution," etc., extend and are confined to a “resident of Ohio, being the head of a family, and not the owner of a homestead," and who is the owner of one or more of three classes of chattels, to wit, mechanical tools, a team, and farming utensils, and who is holding such articles of property, whether belonging to one or more of these classes, in good faith, for use as instruments of labor, and means of support for himself and family.

In error to the common pleas of Hocking county.
The case is sufficiently stated in the opinion of the court.

J. R. Groghan, for plaintiff in error.
Saunders & Wright, for defendant in error.

*BRINKERHOFF, C. J. This is a petition in error, filed here [426 by leave, to reverse the judgment of the court of common pleas of Hocking county. The plaintiff in error, who was also plaintiff below, brought his action against the defendant in error, alleging in his petition, in substance, that he was a resident of Ohio, the head of a family, and not the owner of a homestead; that he was “the owner of a team of horses, consisting of one black mare and one sorrel mare, which he had owned and used for the support of his family, and which was the sole and only team he owned;" that this team was levied on and sold by the defendant, as a constable, under the authority of several executions against him, and in the hands of the defendant as such constable. “That at the time the defendant took said chattel property the plaintiff demanded that

Burgess v. Everett.

the same be set off to him by the defendant, as such officer, in lieu of a homestead, which request was then and there refused by the defendant." He avers that said property was unlawfully and wrongfully sold by the defendant, and that he sustained damages! thereby to the amount of three hundred dollars, for which he demands judgment. To the petition the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. On hearing, the demurrer was sustained, exception taken, and this ruling of the court is here assigned for error.

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

That section is as follows:

“That it shall be lawful for any resident of Ohio, being the head of a family, and not the owner of a homestead, to hold exempt from execution or sale as aforesaid, mechanical tools, or a team and 427] farming utensils, not exceeding *three hundred dollars in value, in addition to the amount of chattel property now by law exempt."

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

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

To interpret the language of this section in its broad and literal sense, would, it seems to me, be imputing to the legislature a man. ifest absurdity. In the first place, it is evident that it was not the intention of the legislature to allow every person described in this section to hold, by virtue of its provisions, property of any and

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