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Van Camp v. Board of Education of Logan.

Nor is the popular or philological meaning of the word "colored" now under consideration; but the legal construction of the words "colored" and "white" is necessarily involved in the case, and submitted for our adjudication.

How then stands the law upon this single question?

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

It is provided in that act as follows: "Sec. 1. That all such property belonging to black or colored persons, as is liable to taxation, when owned by white persons, be taxed for school purposes, and the taxes thereon assessed, be collected in the same manner as similar taxes are by the act to which this is an amendment, a separate account of which shall be kept by the several county audi417] tors, and shall be paid out for the support of schools for black or colored persons in any district in which such schools may be organized; but in any such district in which the children of black or colored persons are permitted to attend the common schools with the children of white persons, then such fund shall be added to the common-school fund of the district from which it was collected, and paid over to the treasurer of said district on the order of the directors of said district." 2 Curwen's Stat. 1428. In like manner in each of the ten sections of this act (of March 7, 1848), the words "black or colored persons,' ," "black or colored children," and "black or colored tax-payers," are used as synonymous, and contradistinguished from white persons, white children, and white tax-payers. And this use of the words "black or colored," in the act, in connection with the words "black and mulatto persons," used in the title of the act, and the established interpretation at the time, of the words "black and mulatto," would all go clearly to show that the legislature, in that act, used the word "colored" as synonymous with "black and mulatto."

But, as if to prevent the possibility of a doubt upon the subject, the legislature, by the act of February, 1849, revising the act of 1848, clearly expressed what they had in the preceding act so

Van Camp v. Board of Education of Logan.

plainly indicated. It is provided in the act of 1849 as follows: Section 5. "The term colored, as used in this act, shall be construed as being of the same signification as the term 'black or mulatto,' as used in former acts." 2 Curwen's Stat. 1466.

I deem it important to refer to these prior acts, and especially to the act of February 10, 1849, for the purpose of better understanding the true construction of the statute of March 7, 1853, now under consideration. I take it for granted that the word "colored," as used in the act of March, 1853, must retain the same construction as under the act of February, 1849, unless the legislature have clearly expressed in the latter statute an intention to *change the construction. For it is a well-settled rule that [418 in the revision of statutes, neither an alteration in phraseology, nor the omission or addition of words in the latter statute shall be held necessarily to alter the construction of the former act. And the court is only warranted in holding the construction of a statute, when revised, to be changed, when the intent of the legislature to make such change is clear, or the language used in the new act plainly requires such change of construction. And such, indeed, has been the holding of this court at the present term, in the case of Ash v. Ash and others. See also to the same effect the cases of Taylor v. Delancy, 2 Caine's Cases, 143; Gaffey v. Colvill, 6 Hill, 574, and other authorities.

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

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

As early as January, 1804, the legislature passed an act subjecting black and mulatto persons to certain disabilities in this state. See 1 Chase's Stat. 393. And on the 27th of January, 1805, by way of amendment, the legislature provided, among other things, by section 4, " that no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record or elsewhere, in this state, in any case depending, or

Van Camp v. Board of Education of Logan.

matter of controversy, where either party to the same is a white 419] person, or in any prosecution which shall be instituted in behalf of the state against any white person." 1 Chase's Stat. 556.

This section came first under the consideration of the court in bank of this state, in the case of Polly Gray v. The State of Ohio, 4 Ohio, 353. The question made in that case was, whether a person "of a shade of color between the mulatto and white," was to be regarded as a "white person." within the meaning of that statute; and the question was resolved affirmatively. The court say, in that case: "The statute is one which a court is called upon to execute with reluctance, yet, when a case is presented, the court has no alternative but to yield to the expression of the legislative will. Three descriptions of persons are designated by name in the statutewhite, black, and mulatto; and these three are well known by the same terms in common life: but we doubt whether we can refine upon these obvious distinctions, or whether good policy or good sense requires us to raise the necessity for FURTHER discrimination. We are unable to set out any other plain and obvious line. Color alone is insufficient." "We are of opinion that a party of such blood is entitled to the privileges of whites; partly because we are unwilling to extend the disabilities of the statute further than its letter requires, and partly from the difficulty of defining and ascertaining the degree of duskiness which renders a person liable to such disabilities." Thus the court, in this, their first judicial construction of the words "white person," as contradistinguished from "black or mulatto" persons, refused to extend the meaning of “black or mulatto" (which they properly term the disabilities of the statutes) further than its letter requires.

The word "black" is well understood to mean the negro; and the word "mulatto" is equally well understood to denote the offspring of a white person and a negro, and as not expressive of any other class of persons. The letter of the statute confines the meaning of the words “black and mulatto" to these two classes; and the 420] court thus refused, more than a quarter of a century ago, to extend the meaning of these words of caste beyond the letter of the law. And under the distinction of classes so expressed by the statute, the court expressly includes the "shade of color between the mulatto and white" in the general class of white persons.

I propose next to show that this judicial construction, thus early given by the Supreme Court of this state to the word "white," as

Van Camp v. Board of Education of Logan.

contradistinguished from "black" and "mulatto," has never before been departed from, but has been heretofore again and again affirmed.

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

The case of Williams v. Directors of School District No. 6, etc., in Hamilton county (Wright, 578), arose under this act. The plaintiff declared, in this case against the defendants, that he was and had been, for the last five years, a citizen and resident householder and tax-payer of the district, and that he had five children over five years old, which he sent to the school, and who were excluded and denied admittance. Plea, not guilty. The record showed the defense relied on to be, that the plaintiff, their father, was one-quarter negro, and their mother, his wife, a white woman. In delivering the opinion of the court, Judge. Lane used the following language: "This court, in Gray v. Ohio, determined that persons nearer white than a mulatto, or half-blood, were entitled to the privileges of whites. The color of the party does not sufficiently mark the distinc- [421 tion between the two races of people." "We think the term white, as used in the law, describes blood and not complexion, and are satisfied with the construction heretofore given. The plaintiff's children, therefore, are white, within the meaning of the law, though the defendants have had the shabby meanness to ask from him his contribution of tax, and exclude his children from the benefit of the schools he helped to support."

Again, in the case of Jeffries v. Ankeny and others, 11 Ohio, 372, at the December term, 1842. the same question came before the Supreme Court of this state. The plaintiff brought suit against the defendants as trustees, for refusing his vote. The defendants refused to receive the vote of the plaintiff, who was a quarter Indian, being of opinion that he was a person of color, and not a “white male inhabitant" within the meaning of the constitution of the state. Art. 4. sec. 1. The chief justice in delivering the opinion

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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, has in principle been determined by this court at the present term. Thacker v. Hawk et al. The majority, or predominance of blood, either black or white, carries with it conclusive evidence of the qualifications or disqualifications conferred or imposed by our statutes."

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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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