Anderson v. Millikin et al. 568] *ALFRED J. ANDERSON V. THOMAS MILLIKIN AND OTHERS. 1. Persons having a mixture of African blood, but 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, by 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 were 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 569] 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 Anderson v. Millikin et al. that, if the law of the case is with the plaintiff upon the facts as herein agreed, he shall recover only nominal damages. The case having been heard upon the agreed statement of facts, the court of common pleas rendered judgment for the defendants, to which the plaintiff excepted. And to reverse that judgment, a petition in error has been filed in this court. N. C. McFarland, for plaintiff. GHOLSON, 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 paid 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 [570 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 exercise of the elective franchise. And, undoubtedly, at the time of the adoption of the constitution of 1851, persons coming. Anderson v. Millikin et al. 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 571] 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 the former had received. If we look at the record of their proceedings, published under their authority, we know as a fact that the construction 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 Anderson v. Millikin et al. 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," ex- [572 pressly 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 doubt 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 Taney, C. J., in the opinion of 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 that instrument to the citizen? One of which Anderson v. Millikin et al. 573] 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 emancipated, 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 Tennessce 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 574] county wherein he may offer his vote, *six months next preceding 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 ances |