17 Ohio St. 665
Supreme Court of Ohio.
JAMES B. MONROE, DAVID MARTIN, AND GEORGE A. LANMAN
v.
GEORGE W. COLLINS.
December Term, 1867.
**1 *666 MOTION for leave to file petition in error to reverse the judgment of the district court of Greene county.
The original action was brought by Collins against the plaintiffs in error, in the common pleas of Greene county, for rejecting his vote at an election theretofore held in a ward of the city of Xenia, where the plaintiffs in error were judges of election.
In his petition, Collins alleges, that he is a person having a ‘visible admixture of African blood,’ but a large preponderance of white blood; and that at the time he offered to vote, and his ballot was so rejected, the fact that he had a large preponderance of white blood was well known to said judges, and plainly apparent, and was proved to their satisfaction. The petition also alleges the other necessary qualifications of Collins, as a legal voter at said election, but it does not aver that the judges in rejecting his ballot acted ‘corruptly or in bad faith.’
The defendants (plaintiffs in error) interposed an answer containing eight several grounds of defense, as follows:
1. They admit that Collins, at the time he offered to vote, was a male citizen of the United States, and of the State of Ohio; that he was over twenty-one years of age; that he was a person having a ‘visible admixture of African blood,’ with a preponderance of white blood; and that the fact, that he had much more of white than African blood, was at the time of his offering to vote plainly apparent, and was proved to *667 their satisfaction. But they allege that Collins, having been challenged by them on the ground of the said visible admixture of his blood, agreeably to the provisions of the act of April 16, 1868 (65 Ohio L. 97), did not by the kind of proof required in said act, and in the manner therein prescribed, show that he was such white male citizen, and that they, therefore, deny the fact.
2. That Collins, when so challenged and required to answer the questions propounded to him agreeably to the provisions of said act, among other things, answered that his parents lived together as husband and wife, but refused to answer whether they were married.
3. That when asked one of the questions specified in said act, to wit: ‘In the community in which you live, are you classified and received as a white or colored person, and do you associate with white or colored persons?’ Collins answered as follows: ‘I know of no established and well-defined classification of persons as to color and shades of color, and am, therefore, unable to say how I am classified. I associate with persons white and persons black, when agreeable to all parties.’ And that Collins failed and refused further or more fully to answer said questions.
4. That Collins, having been required to produce witnesses to testify to his qualifications as a voter, as required in said act, produced his father, who, upon being sworn, refused to answer whether he and the mother of said Collins were married, although he answered that they lived together as husband and wife.
**2 5 and 6. That Collins called two other witnesses, when so required, one of whom refused to answer some of the questions prescribed for such witnesses by the act, and the other of whom refused to answer any of them.
7. That Collins having been also challenged by said judges under the provisions of the act of April 17, 1868 (65 Ohio L. 100), on the ground that he had come into the city of Xenia to attend, and was then attending, a university there, as a student, and having been sworn and questioned as required by said act, answered as follows: 1. That he was not a qualified elector at the time he commenced attending said university; *668 2. That he came there to attend said university; 3. That his parents did not, at the time he came there, reside in said ward; 4. That his parents had subsequently removed to, and were then in said ward, but he did not know whether they intended to make it their home; 5. That he, the defendant in error, had no other place of residence than said ward; 6. That he did not think it was his intention to make said ward his permanent residence, but did not know how long he should remain there, and had, as yet, no place selected or in view to go to. And therefore the respondents averred that, ‘although said Collins had resided in said ward more than thirty days next preceding said election,’ yet under the provisions of said act of April 17, 1868, he was not entitled to vote.
8. That Collins refused, when tendered to him agreeably to the said act of April 16, 1868, to take the final oath or affirmation prescribed in the 5th section thereof.
To this answer Collins demurred generally, denying that either or all of said several grounds of defense constituted a bar to his action.
The demurrer was overruled in the common pleas, and judgment thereupon entered for defendants. To reverse this judgment, Collins prosecuted his petition in error in the district court of Greene county, where the judgment of the common pleas was reversed; and now, to reverse this judgment of the district court, leave is asked to file a petition in error here.
E. H. Munger, for plaintiff in error:
The general question raised in this case is as to theconstitutionality of the two acts relating to elections, passed April 16, 1868, and April 17, 1868. On this question:
1. The presumption is always in favor of the validity of a statute. Before the court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no reasonable doubt. 1 Ohio St. 77, 86; 15 Ohio St. 574, 591; 10 Ohio, 237; Ex parte McCullam, 1 Cowen, 564.
2. The constitution, in general terms, vests the whole legislative power of the state in the general assembly. Art. 2, *669 sec. 1. The limitations upon this power are special, and must be, either by express prohibition or necessary implication. 15 Ohio St. 573, 592, and cases cited; 11 Ohio St. 534, 542; People v. Morrell, 21 Wend. 563.
3. Article 5, section 1, the only provision in the constitution which confers the right to vote, provides the qualifications of electors; and, by necessary implication, those not thus qualified are disqualified. It necessarily follows that the possession of the qualifications is the subject of proof, and dependent upon evidence. Hence, the legislature has power to require proof of qualifications.
**3 4. The legislature having power to require proof of qualifications, has, also, for the same reason, power to regulate it by prescribing the kind of proof and the mode and manner of supplying it; this power being limited by implication of the constitution so far as to prevent the legislature from excluding or prohibiting or unduly restraining the exercise of the right to vote.
5. But, according to the authorities above cited, the courts will not set aside an act of the legislature regulating the proof of qualifications, unless the legislature has clearly transcended its powers.
6. Under the same grant of power in the old constitution, the legislature exercised the right to require proof, and to regulate it as to kind and mode of supplying it, in regard to similar qualifications. Yet the right of this legislature had never been questioned by citizens or courts; and the framers of the new constitution made no change in this respect. Swan's old Stat. 307, sec. 12; 1020, secs. 13–18; S. & C. 545, 546, secs. 82, 85; Const. of 1802, art. 1, sec. 1, art. 4, sec. 1, et seq.
7. The act of April 16, 1868 (65 Ohio L. 97), does not, in any of its provisions, expressly exclude or prohibit a qualified elector from voting. The act confines itself to providing for proof—the kind of proof and the manner of furnishing it—in reference to the qualifications of persons of mixed blood—‘having a distinct and visible admixture of African blood;’ a class of persons recognized to exist by the constitution, as interpreted by the Supreme Court.
*670 8. Nor is the kind of proof required, nor the manner of furnishing it such as are manifestly or necessarily impossible, nor such as necessarily to work an exclusion, or clearly a restraint of the exercise of the constitutional right of the qualified elector to vote.
9. It is not a sufficient objection to say that a qualified elector might not be able to furnish the proof in the manner prescribed by this statute; for he might, by his own act, put the proof beyond his power. The same objection could have been, but never was, made to the act of 1841.
10. Though the visible admixture of African blood is, under the statute (sec. 1), a cause of challenge, it is not made a disqualification. The doubt of such a person's qualification, raised by his appearance, is made sufficient to put him to the proof of the degree and proportion of blood, color alone being a very uncertain test. The statute of 1841, sec. 18, still in force, requires the judges to challenge every person they may know or suspect not to be duly qualified as an elector.
11. The questions prescribed in section 1 are material and pertinent. None of them appear to tend to the prejudice of the right of voting.
12. It is to be presumed that the legislature saw good reason for requiring (in sec. 2) the person challenged to produce two other credible witnesses to prove his qualification, though this is not required of other persons. This is owing to the difficulty of proving the proportion of white blood. The legislature may require a reasonable amount of proof and number of witnesses to any extent short of plainly excluding or unnecessarily hindering the exercise of the right of voting.
**4 13. To avoid delay, and to afford the opportunity for all qualified electors to vote, notwithstanding numerous questions and answers, section 3 provides for additional clerks. And it is not to be presumed that the judges will act improperly.
14. While the law does not expressly provide that the challenged party may call more than two witnesses besides himself, neither does it say he may not nor shall not.
15. The rule prescribed in section 4, as to what evidence shall *671 not be received, etc., is reasonable. The objection to it goes to the power of the legislature to prescribe what sort of evidence shall be competent to prove a given fact.
16. It can hardly be objected that the vote of the person challenged shall be rejected because he refuses fully to answer the questions prescribed (sec. 5). The statute of 1841 (sec. 14) contains the same provision. To the objection that the section requires the rejection of the person's vote, for the refusal of either of his witnesses to fully answer the questions prescribed by this statute, it may be answered: (1.) The legislature has power to require witnesses to prove a fact, and to prescribe questions and to require them to be answered. (2.) It is the fault of the party, knowing the questions to be asked, if he produces witnesses that will not answer them.
17. To the objection that to answer some of the questions might (as claimed in this case with the father) subject the witness to criminal prosecution or disgrace, I reply that this is not a necessary consequence. The constitution does not prohibit the legislature from requiring a witness to give evidence against himself in any other than a criminal case. If the challenged party produce a witness that can not or will not answer, it is his own fault.
18. The rule for testing the qualification of electors who have a visible admixture of African blood does not conflict with the constitutional provision that ‘all laws of a general nature shall have a uniform operation throughout the state.’ The rule prescribed by this law does so operate wherever it finds a subject to act upon. The same objection could as well be made to the law for prescribing a different rule to persons challenged as aliens, or non-residents, etc. See Cass v. Dillon, 2 Ohio St. 616, 617; 6 Ohio St. 269, 270.
19. As to the act of April 17, 1868 (65 Ohio L. 100): At the adoption of the constitution, the legal definition of domicil or residence was, in the strict sense, ‘that place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.’ Story's Confl. Laws, 50, 51, sec 41. See also election statutes of 1841, sec. 2; of 1856, sec. 2.
The language of the constitution (art. 5, sec. 1), expressly *672 giving to the legislature the power to provide the time of residence in the county, township, and ward, carries with it an implied power otherwise to define and qualify residence.
John Little, for defendant in error:
**5 1. A person offering to vote at any election in this state can not be challenged, except for want of some of the constitutional qualifications conferring the right to vote. Williams v. Whitney, 11 Mass. 432; Lincoln v. Hutchins, Id. 350; 3 Conn. 537.
2. The first section of the statute in question (65 Ohio L. 97) requires the judges to challenge any person having a ‘distinct and visible admixture of African blood,’ for that reason. This is not a valid cause for challenge under the constitution, because a person may have a visible admixture of African blood, and still be a white man within the meaning of the word ‘white’ in the constitution. He may have a preponderance of white blood. Gray v. The State, 4 Ohio, 354; Anderson v. Millikin, 9 Ohio St. 570. Therefore this requirement of the statute is unauthorized and void, being a causeless infringement and restraint upon the exercise of a constitutional right.
3. It is not competent for the legislature to require the kind and manner of proof provided for in this statute. To regulate the exercise of a constitutional right is a very different thing from retarding, restraining, or preventing the exercise of such right. Provisions for regulating the right to vote must be reasonable, uniform, and designed to secure and facilitate the exercise of that right in a prompt, orderly, and convenient manner. Capen v. Foster, 12 Pick. 488; Lehman v. McBride, 15 Ohio St. 573; Hulseman v. Rems, 41 Penn. St. 396; Osman v. Riley, 15 Cal. 48; People v. Pease, 30 Barb. 588. The provisions of the statute in question violates this rule, and are therefore without the scope of legislative authority, and void. C., W. & Z. R. R. Co. v. Comm'rs of Clinton Co., 1 Ohio St. 77. The act unreasonably requires the challenged person to do more than satisfy the judges of his right to vote, and is not uniform, applying to one class of voters and not to all, and is not designed to facilitate the exercise of the right to vote, of that *673 portion of voters to which it relates, in a prompt and convenient manner.
Again, the act subjects the portion of voters challenged to requirements not exacted of other voters even of the same class, and takes away from that portion means of proof extended to other voters. It is class legislation, in the most odious sense, and violates that provision of the constitution which requires all laws to be of uniform operation throughout the state.
4. The provisions of the act are inoperative, because in contravention of the letter and spirit of the ‘civil rights bill,’ commonly so called in this, that under them, the party challenged on account of his color has not the same right to give evidence as is enjoyed by white citizens.
5. As to Collins' refusal to answer whether his parents were married or not: The answer, either way, could not have thrown any light upon the question whether he was white. Can the legislature authorize the rejection of a vote for refusal to answer an impertinent question, and the answer to which might bring discredit upon the voter or his family? If the legislature have such power, it may convert elections into such an inquisition as to practically subvert the right to vote. If the constitution prohibited bastards from voting, such question would be proper enough; but the constitution provides that the general assembly may exclude from the privilege of voting only those convicted of perjury, bribery, or other infamous crime. Art. 5, sec. 4.
**6 And the oath itself is one that no man could conscientiously take, for who knows of his own knowledge anything about his parentage or pedigree?
6. As to the refusal of some of the witnesses to answer fully: Is the voter to be disfranchised for such refusal? If Collins' father and mother were not married, the father in refusing to answer the question was justified, for the answer would have subjected him to the liability of a criminal prosecution. Wilkins v. Malone, 14 Ind. 153. Upon the supposition made, it was the father's constitutional privilege to refuse to answer the question, as it was his privilege under the law. *674 And whether witnesses rightfully or wrongfully refuse to answer questions, the voter can not help it, and should not be deprived of his vote.
7. The voter is the only proper person to answer to his qualifications. People v. Pease, 30 Barb. 589; State v. Hart, 6 Jones (Law), N. C. 389.
8. The legislature has no power to prescribe a mode of proof of qualification to vote, so as to defeat the right of a single voter. The execution of the statute in question must result, in some instances, in so consuming time in examining voters and witnesses, and thereby incumbering elections on account of a certain class of voters, as to prevent other electors from voting.
9. The attention of the court is directed to the spirit of this statute. Any challenging party may ask other questions than those prescribed, and call any number of witnesses to prove disqualification, but the challenged person is not authorized to ask any witnesses to prove qualification. Any sort of evidence is admitted to prove a man is black, but the person challenged is restricted to impossible evidence almost, and, in many cases, quite impossible, to prove that he is white. Heavy penalties are visited upon persons for procuring the right to vote against this law, but no penalty is prescribed for thwarting the right of visible admixture electors. Judges are severely punished for receiving votes not lawful, but no penalty is prescribed for rejecting lawful votes. It is made perjury to procure the right to vote by false swearing, but it is not made perjury to defeat the right by false swearing.
10. The defense that Collins came into the ward, where he offered to vote, to attend a university, and declared he did not intend to make the ward his place of permanent residence, is not sufficient. The record shows that the ward was then his place of ‘residence’ within the meaning of the constitution, and it was not competent for the legislature to require the residence to be permanent, or to give to the word ‘residence’ any other than the ordinary meaning attached to it when the constitution was adopted. The meaning of the words contained in the constitution is for judicial, not legislative determination. *675 Cass v. Dillon, 2 Ohio St. 607; Work v. The State, Id. 296; Lehman v. McBride, 15 Ohio St. 573; Chase v. Miller, 41 Penn. St. 396; Clement v. Shaw, 16 Ohio, 599; Greencastle Tp. v. Black, 5 Ind. 557.
**7 Llewellyn Baber, under an act of the general assembly (65 Ohio L. 208).
1. The judgment of the district court must clearly be reversed, entirely independent of any issue going to the merits of the action, because the demurrer filed to the answer reaches back to the petition, which is bad. A distinct and independent clause of the 10th section of the act of April 16, 1868, provides, that in suits brought against any judge of election for rejecting the vote of a person having a distinct and visible admixture of African blood, no recovery shall be had in such action, unless the jury are satisfied on the evidence that the judge of the election, in rejecting such vote, acted ‘corruptly or in bad faith.’
The court is bound to make every reasonable intendment in favor of the constitutionality of the law, and not set aside a proper provision, though other parts of the act may be unconstitutional. Lehman v. McBride, 15 Ohio St. 573–653.
No averment is made in the petition that the judges of election acted ‘corruptly or in bad faith,’ and it is apparent from the record that no such averment could have been made, so that this defect could have been cured by amendment on trial. The petition below is therefore bad. Waldersmith v. Waldersmith, 2 Ohio, 156; Edwards v. Owen, 15 Ohio, 506.
2. The constitutional power of the legislature to lay down a rule, that no recovery can be had unless the judges of election act ‘corruptly or in bad faith,’ can not be doubted. Especially is this the rule in New York, Pennsylvania, and in England, as appears by the citation of authorities by Lane, C. J., in delivering the opinion of the court in Jeffries v. Ankeny, 11 Ohio, 374, where the court adopted the Massachusetts rule in deciding the law in Ohio to allow an action without an averment of malice. The legislature can clearly change, by law, the rule then adopted by the Supreme Court for the more reasonable rule requiring proof of malice, as laid *676 down by the highest court in several of our sister states. The State, for use of Rosette, v. Boring, 15 Ohio, 517.
3. The court of common pleas, in which this case originated, had no jurisdiction, as appears by the record. The judges of election not being liable in damages for rejecting the vote of a person having a visible admixture of African blood, by a clause in the act of April 17, 1868, therefore no judgment could have been rendered—the subject-matter of the action, to wit, damages, which gives jurisdiction, being taken away. The legislature has clearly this power under section 4, article 4, of the constitution, which prescribes that the jurisdiction of the courts of common pleas shall be fixed by law, and it is decided they can exercise none until conferred by law. Stevens v. The State, 3 Ohio St. 453. No principle is better settled, than that courts can not pass upon mere abstract questions of law, no matter how important the rights affected by adverse legislation; a point unanimously decided by the Supreme Court of the United States in the Georgia injunction case, arising under the reconstruction acts of Cong ess. The Supreme Court of Ohio has no power over constitutional questions, except those arising in quo warranto, mandamus, habeas corpus, and procedendo, and the general assembly may, at any time, take away its appellate jurisdiction in other cases, and this it has done in this case with the common pleas court.
**8 4. The act of April 16, 1868, commonly called the visible admixture law, is constitutional on the points made by the demurrer to the answers in this record. It does not conflict with the preponderance rule as to white blood, laid down by the Supreme Court. It merely copies the provisions of the election laws of 1841 and 1857, and applies the question of the qualifications of a voter to this same process of proof, following the decisions of the Supreme Court as to the laws of evidence in reference to parentage and pedigree, by which alone preponderance of white blood can be established. The first plea in the answer in this case sets up, that the defendant's vote was rejected because he offered proof based solely on opinions as to his appearance, which the statute rejects, unless accompanied by the facts as to the parentage of the voter challenged—a test in strict conformity with the case of *677 Polly Gray v. The State, 4 Ohio, 453—the fountain source of the whole doctrine of preponderance. There it is laid down that ‘color alone is insufficient,’ and that preponderance is a question of blood. The legislature adopted this rule, which is supported by the well-known fact, that in mixed races appearance is no test; sometimes the blood of one parent predominating without reference to proportion.
It is set up in the 2d, 3d, and 8th pleas in the answers that the party challenged refused to answer fully the questions and take the oath prescribed by the statute. The universal practice under our election laws now in force, is to reject such votes. S. & C. 546, secs. 14, 15, and 16. The judges of election may even reject the vote after the party has taken the oath that he is twenty-one years of age, etc., and proceed to take further testimony as to his qualifications. Is there anything unreasonable in the questions prescribed in the act of April 16, 1868, to require the rule to be made less stringent as to persons of mixed blood, than that at present applied to white men? The question propounded as to whether the parents of the person challenged were married, or lived together as man and wife, is pertinent to establish the proof by which preponderance of white blood can alone be established under the rules of evidence. If marriage of the parents is proven, it lets in testimony as to reputation of parentage, which is excluded where the family relation does not exist, on the well-known principle that a bastard is ‘nobody's son.’ The oath requires the party to swear, that from his knowledge of his pedigree, he is a white male citizen of the United States—the only way in which he can known it—as the fact depends, under our judicial decisions, upon a preponderance of white blood.
The same reasoning applies to the pleas Nos. 4, 5, and 6, in the answer as to the questions propounded to the witnesses produced, which they refused to answer. This was an obstinate refusal to give information on the subject of parentage, upon which the party's right to vote depended; and it was his own fault if he produced such witnesses. The law nowhere prescribes the rejection of votes on account of the nature of the answers, but leaves the whole matter to the *678 discretion of the judges, as at present; for by section 18 of the act of 1841, it is their duty, at any rate, to challenge every one suspected of not being a duly qualified elector. The questions prescribed in the statute do not preclude other questions tending to establish that the party challenged is a white male citizen of the United States; and the requisition for two witnesses is in strict analogy to the naturalization law of Congress requiring two witnesses in certain cases. Brightley's Digest, 36, sec. 13.
**9 5. The legislature, in this act, does not interfere with the doctrine of the Supreme Court as to preponderance of white blood, but lays down rules of evidence to prevent the enormous abuses practiced under color of that decision, by which the ballot-box is stuffed with votes, without regard to color, in certain localities.
6. It is unnecessary to argue the students' voting law (act April 17, 1868), because the six judges of the district court unanimously held it to be constitutional, and but a re-enactment of the present law in more definite terms as to temporary residence. The subject is fully discussed by the Supreme Court of Massachusetts in 5 Metcalf, 589–591, to which reference is made.
Opinion
WELCH, J.
The questions presented in this case involve, mainly, the constitutionality and validity of the supplementary act of April 16, 1868, of which the following is a copy:
‘An act supplementary to the act entitled ‘An act to preserve the purity of elections,’ passed March 20, 1841, and to protect the judges of elections in the discharge of their duties. (Ohio L.)
‘SECTION 1. Be it enacted by the general assembly of the State of Ohio, That it shall be the duty of the judges of election to challenge any person offering to vote at any election held under any law of this State, having a distinct and visible admixture of African blood, and shall tender to him the following oath or affirmation:
“You do solemnly swear (or affirm) that you will, to the best of your knowledge and belief, full and true answers make to such questions as may be put to you touching your *679 qualifications as an elector;' and thereupon the said judges, or one them, shall put to him the following questions:
‘1. What is your age?
‘2. Where were you born?
‘3. Were your parents married, and did they live together as man and wife?
‘4. Had your parents, or either of them, a visible and distinct admixture of African blood?
‘5. In the community in which you live are you classified and recognized as a white or colored person, and do you associate with white or colored persons?
‘6. Are there schools for colored children in operation in the township, village, or ward in which you live; and if you have children, do they attend such schools, or do they attend the common schools organized for white children, under the laws of the state?
‘SEC. 2. After the examination of the person challenged, as provided in the preceding section, the judges of election shall, unless the vote of said person is rejected, require him to produce before them two credible witnesses, to whom shall be tendered by said judges the following oath or affirmation:
“You and each of you do solemnly swear (or affirm) that you will fully and truly answer all such questions as may be put to you touching the qualifications of [the name of the person challenged] as an elector.'
‘Thereupon the judges, or one of them, shall put to each person, respectively, the following questions:
‘1. Are you acquainted with [the name of the person challenged]; if so, for how long a time have you known him?
**10 ‘2. Do you know when, where, and in what state he was born?
‘3. Were you acquainted with his parents or either of them? If yes, did such parents, or either of them, have a distinct and visible admixture of African blood, and were they married, or did they live together as man and wife?
‘SEC. 3. A record in writing of the questions and answers required to be given and made in the preceding sections of this [act] shall be kept and filed with the poll-books for public inspection, and that the conducting of such examinations and *680 the making of the record thereof shall not be permitted to delay the regular business of such elections, in receiving votes where no such examination and record aforesaid is required by this act to be made, and to avoid such delay, it shall be the duty of such judges of election to employ an additional clerk or clerks to make such record, who shall be paid as other clerks at such elections; and said clerks shall first by duly sworn to faithfully and correctly make such record, and the said judges of election, or any party challenging, may put such other questions as may seem to them necessary and proper, and the judges of election, or the party challenging, may call and have examined any other witnesses in the premises that may seem to them proper.
‘SEC. 4. No evidence shall be received as to the admixture of white blood which is based on the opinion of the person challenged or of the witness testifying in his behalf, founded merely upon appearance, unless the facts are fully stated as to the parentage of the person challenged; and no evidence of reputation as to parentage shall be received, unless the parties about whom such reputation exists are first proved to have been married, or to have lived together as man and wife.
‘SEC. 5. If the party challenged, or any person interrogated as aforesaid in his behalf, shall refuse to answer fully and question as herein prescribed, the judges shall reject the vote; and if the judges shall be satisfied, from the statements of all the persons examined and the evidence adduced, that the person offering to vote is a ‘white male citizen of the United States,’ before receiving his ballot, they shall tender him the following oath or affirmation:
“You do solemnly swear (or affirm) that, to the best of your knowledge and belief, you are a white male citizen of the United States, and know the fact to be so from a knowledge of both your parents and your pedigree;' and if the judges shall then receive said vote, the words, ‘challenged on the ground of visible admixture of African blood,’ shall be entered on the poll-book opposite said voter's name.
‘SEC. 6. That any person who, on oath or affirmation, shall procure the right to vote for himself or any other person, by willfully and corruptly deposing, declaring, or affirming any *681 matter to be a fact, knowing the same to be false, or shall, in like manner, deny any matter to be fact, knowing the same to be true, shall be deemed guilty of perjury, and on conviction thereof shall be imprisoned in the penitentiary and kept at hard labor not more than ten years nor less than three years.
**11 ‘SEC. 7. Any judge of election receiving the vote or sanctioning the reception of the same from any person having a distinct and visible admixture of African blood, contrary to the provisions of this act, shall, on conviction thereof, be imprisoned in the county jail not more than six months nor less than one month, and shall also be liable to a civil action for a penalty in the sum of five hundred dollars, which may be brought against him by any elector of the county or district in which the vote was received, in the court of common pleas of any county in the state where process can be served upon him; provided there shall be but one recovery for each violation of this act, and a failure to prosecute or convict shall not in any manner affect the right to proceed for the recovery of such penalty.
‘SEC. 8. That any person aiding, abetting, or counseling any judge of election to receive a vote, or aiding, abetting, or counseling any person to offer his vote in violation of the provisions of this act, or any person in any manner impeding the challenging of persons as herein provided, shall, on conviction thereof, be imprisoned in the county jail not more than six months nor less than one month, and shall also be liable to a civil action for a penalty in the sum of one hundred dollars, which may be brought against him by any elector of the county or district in which the vote was received, in the court of common pleas of any county where process can be served upon him; provided there shall be but one recovery for each violation of this act, and a failure to prosecute or convict shall not in any manner affect the right to proceed for the recovery of such penalty.
‘SEC. 9. Any judge of election sued for rejecting the vote of any person having a distinct and visible admixture of African blood, may change the venue to any county he may elect in the judicial district in which he resides, on making an *682 affidavit that, according to the best of his belief, justice requires such a change to be made.
‘SEC. 10. In all suits brought against any judge of the election for rejecting the vote of any person having a distinct and visible admixture of African blood, the party bringing the action shall be required, by the court, on trial, before he shall be entitled to recover, to establish that he is a white male citizen of the United States, in the same manner, and by the same evidence, both as to the kind of testimony and number of corroborating witnesses, as prescribed by the provisions of this act in case of challenge, and no evidence shall be received as to the admixture of white blood based on the opinion of witnesses, founded on personal appearance, unconnected with a full statement of the facts as to the parentage and pedigree of the party bringing the action; nor shall any proof be received as to the reputation or parentage, unless the marriage of the parties is first proved, in reference to whom such reputation exists, or that they lived together as man and wife, and were recognized as such, and no recovery shall be had in such action unless the jury are satisfied from the evidence that the judge of the election, in rejecting such vote, acted corruptly or in bad faith; and the court shall so instruct the jury, and where said instruction is omitted or refused, the defendant shall be entitled to a new trial.
**12 ‘SEC. 11. Any candidate for office at any election may, on making an affidavit before a justice of the peace or notary public that he believes it necessary to the enforcement of the provisions of this act, call on the sheriff of the proper county, and, on presenting him such affidavit, require him to furnish a sufficient posse, to be paid as in other cases, to protect any poll where there is a probability that the challenging under the provisions of this act will be impeded, and its other requirements disregarded; and any sheriff refusing to furnish said posse and to protect said poll from all violence and interference by any person or persons whatsoever, shall, on conviction thereof, be imprisoned in the county jail not exceeding thirty days nor less than ten days, and shall also be liable to civil action by any elector for a penalty of one hundred dollars, which may be brought against him in the *683 court of common pleas of any county where process may be served upon him; provided there shall be but one recovery for every such violation aforesaid.
‘SEC. 12. No challenge under the provisions of this act shall be regarded by the judges of election where the person challenged has no visible admixture of African blood; and any person challenging an elector in bad faith, or where there is no probable cause for such challenge on account of a visible admixture of African blood, shall, on conviction thereof, be imprisoned in the county jail not more than six months nor less than one month, and shall also be liable to a civil action for a penalty in the sum of five hundred dollars, which action may be brought against him by the person so challenged, in any county where process can be served upon him.
‘SEC. 13. All prosecutions under the provisions of this act shall be by indictment before the court of common pleas in the county where the offense was committed, and all penalties recovered under this act shall be paid, one-half to the party in whose name the suit is brought, and the other half into the county treasury where the suit is determined, for the benefit of the common school fund.
‘SEC. 14. This act shall be given specially in charge to the grand jury at each term of the court of common pleas by the presiding judge thereof, and shall take effect and be in force from and after its passage.’
As connected with this act, is to be considered also the concluding clause in a proviso, upon the same subject, contained in section 3 of the act of April 17, 1868 (65 Ohio L. 104), amendatory of the general election law. This section 3, which is an amendment of section 24 of the general law, provides for penalties against judges of election who ‘shall refuse to receive, or shall sanction the rejection of a ballot from any person, knowing him to have the qualifications of an elector,’ and then concludes with this proviso: ‘Provided, that the provisions of this act, [that is, the general act, of which this is section 24], and the penalties thereto, shall not apply to clerks or judges of election for refusing to receive the votes of persons having a distinct and visible admixture of *684 African blood, nor shall they be liable for damages by reason of such rejection.’
**13 If these enactments are constitutional, it is plain that the district court erred in holding that none of the defenses interposed was a good bar to the action. That Collins refused to answer fully all the questions put to him; that either or any of the witnesses produced by him failed to answer the questions put to them; that Collins failed to take the final oath prescribed in section 5 of the act of April 16, 1868; that the evidence, elicited by direct answers to the statutory questions, failed to show that Collins was a white man—either of these defenses was a good bar to the action, by express provision of the act of April 16, 1868. Besides, it is to be observed, the demurrer to the answer reaches back to the petition, and if it is bad, no matter if the defenses are all bad, the demurrer must be sustained, and the action fail. If these enactments are valid, the petition itself is probably bad, for two reasons: 1. Because it does not show that in rejecting the vote the judges acted ‘corruptly or in bad faith;’ and, 2. Because it does show that the vote rejected was that of a person having a visible admixture of African blood, in which case it is provided that ‘the judges shall not be liable for damages for such rejection.’ Possibly the two provisions last referred to may be fairly construed to mean that where there is no corruption or bad faith, there shall be no right of action; and where corruption or bad faith is shown, an action may be sustained, but no actual damages—that is, no more than mere nominal damages—shall be recovered. This is, however, quite immaterial in the present case, as abundant ground of defense under the statute is set up in the answer.
The whole case, therefore, resolves itself into a question of the validity and constitutionality of these provisions of law—the act of April 16, 1868, in connection with the clause denying the liability of the judges for damages, in the act of April 17, 1868. It is quite evident that all the provisions of the act of April 16, and the single provision of that of April 17, must stand or fall together. They are all parts of a single scheme, having a common object, and are so interwoven, and so dependent one upon the other, that no single provision, at least no *685 one that is relied upon as a defense in this case, can be made to stand, and have full force and effect, if the others are held to be in violation of the constitution. The single question then is—are these enactments constitutional and valid?
The right of suffrage is guaranteed by the constitution of Ohio to ‘white male citizens.’ By the constitution of 1802, it was guaranteed to ‘white male inhabitants.’ Under the constitution of 1802 it was repeatedly held by the Supreme Court of the state that men having an admixture of African blood, with a preponderance of white blood, were white men within its meaning, and had the same right to vote as persons of pure white blood. See Polly Gray v. The State, 4 Ohio, 353; Williams v. School Directors, Wright, 579; Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ib. 376; Chalmers v. Stewart, 11 Ib. 386; Lane v. Baker, 12 Ib. 237; Stewart v. Southard, 17 Ib. 402.
**14 The same was held by this court in Anderson v. Millikin et al., 9 Ohio St. 568, to be the meaning and effect of the present constitution. A colored man, therefore, having more white than black blood, is a white man within the meaning of the constitution, and the legislature have not more power to deny or intrench upon his right to vote than they have to deny or intrench upon that of a man of pure white blood. As electors, both stand equal before the law, and are regarded as white men. If the law in question would byunconstitutional when made applicable to white men of any other description, then it is unconstitutional in its present form. If the legislature have power to deny or abridge the right of suffrage of white men of visible admixture, then they can exercise the same power in regard to white men of black hair, of low stature, of small fortune, of unorthodox religious opinions, or of any other description. Between the legislative power and the legal elector, no matter who or what he is, the constitutional provision stands as a bulwark for the protection of his right to vote.
What the legislature can not do directly it can not do by indirection. It if has no power expressly to deny or take away the right, it has none to define it away, or unreasonably to abridge or impede its enjoyment by laws professing to be merely remedial. The power of the legislature in such cases *686 is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. All reasonable latitude should be allowed to the legislature in the exercise of this power of regulation, and every reasonable intendment in favor of the constitutionality of laws enacted for that purpose should be made by the courts. Such laws are not to be held unconstitutional unless clearly so, and if they will at all bear a construction which makes them consistent with the constitution, they are to receive that construction, and so to be upheld. The true line between laws which taken away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick. 488. It was there held, substantially, that laws of the latter description must be reasonable, uniform, and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote.
Tried by this rule, what is the character of the law in question? Is it unreasonable, partial, or calculated to subvert or impede the exercise of the right of suffrage by the class of voters to whom it applies? Is it clearly such? We are unanimous in the opinion that it is, and that it has all these unconstitutional elements combined. We speak of the effect, the scope, and spirit of the law, and not of the ultimate object of the legislature, whom as a co-ordinate branch of the government we are bound to respect, and to whom we would attribute no unlawful purposes. But that the effect of the law is to impede the exercise of the right of suffrage by the class of voters referred to, and, to a great extent, to deny the right, and that its operation would be partial and unjust to an extreme degree, any candid man has only to read the law to admit.
**15 In the first place, the law is partial, and calculated to impede the exercise of the right of suffrage, by imposing upon the class of voters referred to, unreasonable burdens of proof, and limitations as to kind and amount of evidence, which are not imposed upon other voters. They are challenged—nay,must be challenged—not because they are not, in law, white men, but because of their visible admixture. If they are prima *687 facie white men, or even, as in the case at bar, are plainly and clearly white men, the burden of proof, contrary to all rules of evidence, is cast upon them nevertheless.
This burden they are required to remove by a particular specified description of proof, which, in many cases, is impracticable. It being assumed that they are in law black men, no drop of white blood can be proved into their veins by ‘reputation,’ by ‘appearance,’ or by ‘opinion;’ while the challengers are unlimited as to the kind of proof. Again, they seem to be limited to their own testimony and that of two witnesses, and are confined, in giving that testimony, to answering certain prescribed and apparently immaterial questions, which give them no aid; while their adversaries are unlimited as to the number of witnesses they may call, and the questions they may ask, as well as in regard to the kind of testimony to be elicited. An admixture of black blood may be proven by reputation, appearance, or opinion, and by any number of witnesses that may ‘seem proper’ to the challengers, who may ask ‘any other questions' that may ‘seem to them necessary;’ but white blood must be shown by direct and positive testimony, and in many, if not most cases, such testimony as can not be supposed to be within the power of the voter.
If, notwithstanding these unequal rules and restrictions, the voter succeeds in accomplishing an apparent impossibility, and the judges thus become ‘satisfied’ that he is a ‘white male citizen of the United States,’ before receiving his ballot they are to tender him an oath or affirmation, to the effect that he not only believes himself to be a white male citizen, but that he ‘knows the fact to be so from a knowledge of both his parents and his pedigree.’ The refusal to take this oath or affirmation, of course works a forfeiture of his right to vote; for, otherwise, the tender of it would be without object, and would be an idle ceremony. So, his refusal, or the refusal of either of his witnesses, to ‘answer fully’ any of the questions propounded, works a like forfeiture. If answering ‘fully’ means answering according to the facts of the case, such answer would be impossible in most cases. If it means merely answering according to knowledge, then it is enough to say his right to vote is placed by the law in the hands of *688 his witnesses. I believe the former to be its true meaning. Otherwise it would be folly to require the voter to produce the two witnesses—a requisition which he could easily evade, by calling witnesses who had little or no knowledge on the subject; and if answering ‘fully’ in the case of the witnesses is to have that meaning, it must receive the same meaning in case of the voter himself. The requisition to produce two witnesses must be held a requisition to produce testimony in corroboration of testimony already given by the candidate himself. If so, it is a requisition that in most cases could not be complied with, and the vote would have to be rejected.
**16 The law is also unreasonable, and calculated to impede rather than facilitate the exercise of the right of suffrage by white citizens of less than half African blood, in that it is so framed as to be liable, at least in the judgment of unpracticed men—such as usually act as officers of an election—to the construction that no man having African blood is a white man or has a right to vote. Indeed, it is extremely doubtful whether such is not the legitimate interpretation of the law. The ground of the challenge is, not that the voter has more than half black blood, but that he has some black blood. The quantity of black blood—the proportions of black and white blood—although the most material matter to be inquired of in the case, and indeed that to which all the provisions of the law ought to relate, are carefully excluded from inquiry. The man of pure black blood is not required to be challenged. Throughout the whole act but two classes are mentioned. One of these is a ‘person having a visible admixture,’ and the other is a ‘white male citizen of the United States.’ All the questions put to the candidate, as well as those put to his witnesses, tend only to show whether he is, or is not, a person of visible admixture. The case begins with a challenge that he is a person of visible admixture, and then he is required to acquit himself of the charge, by his own testimony, and that of two other witnesses, by showing whether his parents were of visible admixture, and with whom he and his children associate! Any and all questions as to the quantity or proportions of the blood are carefully excluded. If this is not the technical interpretation of the act, its true meaning is so *689 well hidden, and lies so deep, that none but lawyers would be likely to reach it. It is well known to lawyers that the words ‘white man’ have a legal and constitutional meaning, quite different from their popular sense. A law calculated to facilitate and secure the enjoyment of the right of suffrage by white men who have African blood, would promote that object by at least intimating, in some part of the law, what is nowhere intimated in this law, that by the terms ‘white male citizens' colored persons of less than half black blood are not excluded. On the contrary, the law in question purports throughout to use the terms in their popular sense. And when it is seen that high penalties, and unrestricted liabilities, await the judges who err in receiving the vote contrary to the law, and that perfect impunity is guaranteed to them in case of its rejection, it is easy to see how, in the hands of unpracticed, though honest judges, the exercise of the elector's right to vote would be likely to be impeded or denied. All doubts—and the law, whether from design or not, is full of doubts—would be resolved against the elector.
The most objectionable feature of the act, however, and that which is calculated most effectually to impair the right of the colored elector, is its unjust discrimination against him in regard to penalties, liabilities, and safeguards, for its protection or against its abuse. This is an important consideration, because without a sanction the law has no operative force or vitality. If the sanctions are all on one side, the operation of the law will necessarily be partial and unjust. Such, we think, is plainly the character of this law, and such must be its practical effect. If any judge of election receives the vote of a person of visible admixture, or sanctions its reception, contrary to the provisions of the act, although he may act in good faith, yet he is liable to be imprisoned from one to six months, and to a penalty of five hundred dollars for every such mistake; and in order to insure his prosecution for the penalty, half of it is given to any elector bringing suit therefor, and an acquittal on prosecution for the offense is no bar to an action for the penalty. On the other hand, if the judges err in rejecting the vote contrary to the provisions of *690 the act—may, if they reject it ‘corruptly and in bad faith’—no punishment or penalty is to follow; if a civil action can be sustained at all, which is, to say the least, doubtful, no actual damages can be recovered; and the case or prosecution can only be sustained by a kind of proof that is, in most cases, impossible. If the judges err in rejecting the vote of any other voter than those of visible admixture, though they act in good faith, they are still liable to a civil action for full damages, and if they reject it in bad faith they are liable to punishment; and in either of the latter cases there are no restrictions as to the kind of proof required upon the trial, and no part of the penalty goes to the prosecutor. The judges are made liable for rejecting and for receiving the vote of other electors, and for receiving that of the colored voter, but they are guaranteed perfect impunity for rejecting the vote of the latter, even where it is done ‘corruptly or in bad faith.’ For any official act done corruptly they are made liable, with the single exception that they may with perfect impunity reject a colored man's vote.
**17 The same is the case with any person ‘aiding, abetting, or counseling’ any judge, etc. He is only made liable for aiding, abe ting, or counseling the ‘reception’ or ‘offering’ of the vote. He may counsel its rejection with perfect impunity. So in regard to ‘impeding’ or preventing the operation of the law. Any person may, with impunity, impede or prevent the voting, or the offering of a vote by the colored man, but if he impedes the ‘challenging’ he is liable to penalties and imprisonment. Safety is made to consist in doing all the ‘aiding, abetting, counseling,’ and ‘impeding’ against the colored voter, and in favor of his adversaries. If a judge is sued for rejecting the vote of a colored person, he (the judge) may change the venue, but the colored person can not; and the change may be made on the judge's affidavit alone, and to any county he may elect in the whole judicial district. In other words, he may choose his own forum. No such right to change the venue is allowed in case of an action by any other elector for rejecting his vote. The same partiality and discrimination appears in other parts of the act, and in fact throughout its provisions. It is made perjury by *691 the act to ‘procure’ the right of the colored person to vote, by false swearing, but it is a crime by false swearing to deny it or effect its disallowance. The posse of the sheriff, provided for in the 11th section, is required to be furnished only ‘where there is a probability that the challenging under the provisions of this act will be impeded.’ The probability that the voting of the colored man will be impeded, or even that the challenging of the pure white man will be impeded, or that any other disturbance will take place, requires no posse. It is only the challengers of the colored voter who are awarded this extraordinary protection. With all the odds in their favor, by the other provisions of the act, they alone are to have full protection, and be insured against all possible interference. One would think that without this posse there was protection enough for the challenger, in the apparent impossibility of proving the colored man's right, in the difficulty of procuring witnesses to run the risk of prosecutions for perjury, and in the almost certain liabilities to punishment and penalties for aiding, counseling, or interfering in his behalf. Surely, if any such protection is needed, it is needed upon the side of the voter and not of the challenger.
For these reasons, and others apparent upon the face of the act, it is manifest to us that it can not be supported as a law to facilitate and protect the right of suffrage and to regulate its exercise within the scope of legislative power. Its manifest tendency and effect are to subvert instead of protect the right of suffrage, and to impede instead of facilitate its exercise in a particular class of voters. If it acknowledges their right at all, it does so grudgingly, and by mere implication. It discriminates against them in all its penalties, its liabilities, and its safeguards, as well as in regard to the amount and kind of proof required of them, both at the polls and in courts of justice. It therefore lacks that element of fairness and impartiality which should characterize all laws of that description. Under its provisions, fully carried out, not one perhaps in ten of the class proscribed by it could exercise the right of voting. It presents them with difficulties and impediments at every step, such that, if they are not absolutely insurmountable, a quiet *692 peace-loving citizen, in most cases, would choose to relinquish his right to vote rather than encounter them.
**18 It is not only true that the act is calculated to impair and defeat the exercise of the colored man's constitutional right to vote, but any candid man must admit that such seems to be its leading, nay its only object. It seems to be a studied and cunningly devised scheme to effect that single object to the utmost that it could be effected, without expressly and directly violating the constitution of the state.
We therefore hold the act of April 16, 1868, with the clause in the subsequent law referred to, to be unconstitutional and void.
As to the eighth ground of defense, by which it is probably intended to raise a question as to the constitutionality of the provisions of said act of April 17, 1868, other than the clause referred to, we have only to say that in our judgment no such question arises. That part of the answer setting up this defense admits that Collins ‘had resided in said ward for more than thirty days next preceding said election.’ This admission establishes his right to vote, so far as the question of residence is made, and it would be going out of the case to consider questions regarding the constitutionality of the law.
Motion overruled.
DAY, C. J., and WHITE, BRINKERHOFF, and SCOTT, JJ., concurred.
All Citations
17 Ohio St. 665,| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |