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Chalmers v. Stewart.

cision of this court, conferring political rights upon all less than half black, is an inducement for such to immigrate to the state and remain here. It violates the spirit of the constitution, becauso, in principle, I see no difference in allowing a mulatto to vote, and a person little less than mulatto, or a full black, for the tint of black blood extends to them all, and this is the reason of their exclusion. 386] *Thus, it appears to me, for the reasons I have assigned, that we are forbidden to give any other construction to the word 'white,” in our constitution, than that it excludes all persons not of the puro blood of the white race from the enjoyment of the elective franchise, and all participation in the exercise of political rights.

JAMES C. CHALMERS v, ROBERT STEWART.

school subscription in aid of the common school fund imposes no obligation

to pay, if black children are admitted into the school, or those who are notoriously vicious, corrupt, immoral, or profane.

This is a writ of error to the court of common pleas of Greene county.

Wood, J. The declaration counts on a certain subscription paper, signed by the plaintiff in error and others, the object of which was the employment of the defendant in error to keep a common school in district No. 15, etc., and by wbich the plaintiff agreed to pay the defendant two dollars per scholar for teaching two scholars for sixty days. The declaration avers that the defendant in error was ready and willing to teach, etc., of which the plaintiff in error bad notice, and the refusal of the plaintiff in error to pay, etc.

A plca of tho general issue was filed, the cause submitted to the jury, a verdict found for the defendant in error, and judgment rendered thereon, in the court of common pleas, which is now sought to be reversed by the prosecution of this writ.

During the progress of the trial a bill of exceptions was taken, from which it appears that the plaintiff in error offered to prove

Chalmers v. Stewart.

to the jury that the defendant in error was employed by the di. rectors of school district No. 15 to teach a common *school, [387 his salary to be paid in part out of the common school fund, and in part by subscription, and that be bad, in violation of his duty and the laws of this state, received into his school divers youths who, he admitted, were colored, and not entitled to the benefits of the common schools of Ohio, but were prohibited by statute, in consequence of which the plaintiff in error withdrew his chil. dren from school; which evidence was objected to by the counsel for the defendant in error, and the objection sustained by the court, and this decision is assigned for error.

The inquiry presented is, did the court of common pleas err in the rejection of this evidence? In other words, did it tend to prove any fact that would be a bar to this action?

The school in question was a public school; the subscription was in aid of the common school fund. The defendant in orror was employed by the diroctors of the district to teach a school organized under the statute regulating common schools. Section 51 of this act provides, that all white youth over four and under twonty-one years of age shall be entitled to equal privileges in all the common schools of this state. Swan's Stat. 841. Who wbite 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, other black or white, carries with it conclusive evidence of the qualifications or disqualifications conferred or imposed by our statutes. By law, white children, only, have the privileges of common schools. A teacher, therefore, can only admit such in a public school, supported in whole or in part by the public funds. If he does admit blacks, he violates the obligation on bis part to keep a legal school; and it would be unjust to hold the promisor bound by a contract which the promisee disregarded and omitted to perform.

The bill of exceptions shows that the evidence offered was the direct admission of the defendant in error, that he did receive into the school divers youths, against the provisions of the statute. This evidence a majority of the court think was *competent, [388 and if the fact was fully established it would have been a bar to a recovery. The common pleas erred, therefore, in arresting this testimony from the jury. In this case, the obligation not to admit blacks is imposed by statute. I have no hesitation, however, in

Morgan o. Staley et al.

laying it down as a general principle, in all cases, that a teacher of a public school is under the implied obligation to regard the morals of the youth intrusted to his care, and, should he so far disregard his duty as to admit the vicious and corrupt, controlled by no sense of moral obligation; should he fill his school with prostitutes or thieves, or those openly profane or licentious, such teacher would forfeit all claim to compensation; and where the statute imposes the prohibition for reasons which were satisfactory to the law-making power as to whom the teacher may admit to the privileges of the school, its enactments, if disregarded, must be followed by the same consequences.

Judyment reversed and cause remanded.
Judge Read did not sit in this case.
ELLSBERRY, for plaintiff in error.
HARLAN, for defendant.

389]

*WILLIAM MORGAN V. DANIEL STALEY ET AL.

The partition of lands incumbered by a dower estate, may be enforced in

equity by the owner of the incumbrance, he being also tenant in common of the remainder.

This is a bill in chancery, for partition, from the county of Greene.

Daniel Staley died in 1829, intestate, seized of a tract of land, in Greene county; and left, surviving him, a widow and six children. Forty-five acres of the tract were, in 1831, set off to the widow for her dower. In 1839, the complainant purchased the widow's dower estate, and then bought the interest in remainder therein of one of the heirs at law. He now files this bill in chancery against the other tenants in remainder to compel partition.

HOWARD & SMITH, for complainant, contended that the complainant, being the owner of the dower estate, and also of one undivided sixth part of the remainder in fee, he bad such an interest as entitled him to have his sixth part set off to bim in severalty. They cited Swan's Stat. 614; 3 Prest. on Conveyancing, 89, 90. GEST & HARLAN, for defendants, insisted that the complainant's

Morgan v. Staley et al.

interest was not such as entitled him, in equity, to have partition. They cited 4 Kent's Com. 271; Co. Lit. 167, a ; 9 Cow. 530; Brown v. Brown, 8 N. H. 93; 25 Am. Jurist, 465; Swan's Stat. 617, sec. 13; Thomas' Co. Lit. 805, 830.

BIRCHARD, J. The counsel of the complainant and respondent seem to have different views of the nature of this proceeding. One bas treated it as a proceeding in equity, the other as a statutory proceeding. It is, nevertheless, a bill in *equity, seek. [390 ing the exercise of the ordinary powers of a court of chancery; the distinction between which and the powers of a court at law, in matters of partition, is well defined. 1 Story's Eq. 605, 610. The equity jurisdiction, in such cases, is founded in the convenience of the thing, and in the necessity of proceeding, in a tribunal competent to settle all the interests of all the parties with perfect fairness and equality. This may frequently be done under the direction of a master, by special commission issuing out of chancery, much better than on a mere writ. If the titles of parties, says Lord Redesdale, Mitford's Eq. Pl. 120, 121, are in any degree complicated, the difficulties which have occurred at law have led to applications to courts of equity for partition. In this case the complainant bas a dower estate, and is in possession of the premises ; and is also a tenant, in common with five others, of the estate in remainder. If, on the issue of a writ of partition, at law, the estate should be found incapable of division, without manifest injury to the whole, and the freeholders should return an appraisal of the premises, under the statute, in order to have a sale made, it is manifest that the parties in interest would occupy very unequal grounds, if desirous of purchasing.

The complainant, by a purchase, and uniting of the freebold and remainder, would secure an unincumbered estate of inhoritance, while neither of the respondents, nor any other person, could acquire anything but a remainder, incumbered by a dower estate, the duration of which, and all other contingencies incident to such an interest, would be at their bazard. It would be singular, if, under such circumstances, their rights should bappen to be 80 well protected, as to enable them, or the public generally, to enter into fair and equitable competition with the complainant. This view of the case presents an inequality which ought not to be

Lessee of Kemper v. Cincinnati, Columbus & Wooster Turnpike Co.

overlooked, and, in our estimation, is sufficient to justify a resort to the equity side of the court.

Again, each of the parties to this bill, owns one-sixth part of the remainder; and, if they were all capable of contracting, it is not to be doubted that they might have effected, by agree391) ment, *an amicable division, notwithstanding tbe incum. brance of dower, by means of quitclaims, or other forms of conveyance; and this, for the purpose of enabling the complainant to erect, with safety, permanent buildings, or other fixtures, neces. sary to the profitable enjoyment of the freehold estate in his possession. The partition is with held; and, so long as this is the case, we feel no difficulty in entertaining this bill for the purpose of compelling partition. There is still another ground of equity jurisdiction. Three of the respondents are minors, and incapable of contracting or protecting themselves, by bidding, in the event of a sale at law.

In 1 Story's Eq. 611, that learned commentator observes : “Courts of equity will generally follow the analogies of law, but are not to be understood as limiting their jurisdiction to cases cognizable at law, for there is no doubt that they may interfere in cases where a writ of partition would not lie at law.” In New York, 8 Johns. 564, the chancellor held tbat a tenant in common of the inheritance might maintain partition, notwithstanding : dower estate was outstanding. That was a case at law.

Following the analogies of that decision, and of our statute, Swan's Stat. 612, the remainder may, in equity, be partitioned when dower has been assigned. Decroe for complainant.

392] *THE LESSEE OF PRESLEY KEMPER V. THE CINCINNATI,

COLUMBUS AND WOOSTER TURNPIKE COMPANY.

An incorporated road company, which is authorized by its charter to lay out

and construct a turnpike road, not exceeding one hundred feet in widtb. to erect gates and collect toll, has no right to appropriate, for a toll-house land lying without the line of the road.

This is a writ of error to the Supreme Court of Hamilton county.

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