Marshall v. Donovan, &C.
| Decision Date | 16 March 1874 |
| Citation | 73 Ky. 681 |
| Parties | Marshall v. Donovan, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BRACKEN CIRCUIT COURT.
THROOP & SON, B. G. WILLIS, JAMES SPEED, For Appellant.
JOHN N. FURBER, F. L. CLEVELAND, For Appellees.
JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT.
Marshall sued Donovan and Daum for the forcible seizure and conversion of a cow of the value of sixty dollars. They answered, and stated that Daum was the sheriff of Bracken County, that Donovan was his deputy, and that they seized and sold the cow to satisfy a tax-claim against Marshall arising out of a levy made pursuant to the provisions of an act of the General Assembly, approved March 11, 1873, entitled "An act for the benefit of the common schools in Bracken County."
The first section of said act provides "that in any common-school district in Bracken County in which the clearly ascertained will of the people shall be in favor of a district tax for the purpose of purchasing a site for a district school-house, of building a new school-house, of repairing an old one, or furnishing a school-house, or paying a debt that has been contracted for the purposes mentioned in this act, the levying of such a tax therein shall be lawful."
The second section provides that the will of the people, in any given district, shall be ascertained by the submission of the proposition to tax to "the white qualified voters thereof; . . . . and any widow or alien residing in any school-district who is a tax-payer, or who has children, within the ages fixed by the common-school laws, to be educated, shall be deemed a qualified voter."
The ninth section is in these words: "This act shall not apply to property owned by citizens of African descent."
The answer set out in detail the performance of every act essential under the law to authorize the imposition of the tax, and also the regularity of the steps taken by the sheriff and his deputy to enforce its collection.
Appellant filed a general demurrer to this answer; it was overruled; and the record shows that he admitted all the facts interposed by way of defense by standing by his demurrer, and that the court then dismissed his petition. He appeals, and insists that the act of March 11, 1873, is unconstitutional and void.
1. Because by the common-school laws of this commonwealth the negro is deprived "of his right to and interest in the school-funds of the state under the eleventh article of the state constitution."
2. Because the election provided for by the act is not "free and equal."
3. Because the property of citizens of African descent is not taxed as that of other citizens.
4. Because the state denies to persons within its jurisdiction the equal protection of the laws.
5. Because the act denies to citizens of African descent the right to vote on a question which concerns them as citizens,
and thus violates the fifteenth amendment to the constitution of the United States.
We will not take up these propositions separately, preferring, as they are intimately connected the one with each and all the others, to treat them as subdivisions of the general proposition that the constitution of Kentucky has been so far modified by the adoption of the thirteenth, fourteenth, and fifteenth articles of amendment to the Federal constitution as to deprive the legislature of the power to maintain a system of common schools, under which moneys may be raised by the taxation of the property of the white inhabitants, and expended for the exclusive benefit of the white children of the commonwealth. If this proposition can be maintained, it results that our system of common schools as now organized is without constitutional sanction, and that the taxation annually levied and collected for school-purposes is so levied and collected without authority of law.
The eleventh article of the state constitution declares that certain enumerated funds, together with any sum that may be
The Revised Statutes embody the first legislation on the subject of common schools after the adoption of our present constitution. They provide that the auditor shall each year apportion the revenue arising from the school-fund "among the several counties of the state according to the number of free white children in each between the ages of six and eighteen years, as shown by the returns of the assessors in his office." (Section 1, article 1, chapter 88.)
By section 1 of article 8 of the same chapter the legislature declared that its object was "to carry into effect the intention of the people of Kentucky, as expressed in their constitution, in promoting the establishment throughout the state of a system of common schools which shall be equally accessible to the poor as to the rich;" and it further declared "that every school which is put under the control of trustees and commissioners pursuant thereto, which has been actually kept three months during the year by a qualified teacher, and at which every free white child in the district between the ages of six and eighteen years has had the privilege of attending, whether contributing toward defraying the expenses or not, and none other, shall be deemed a common school within the meaning of this chapter, or entitled to contribution out of the school-fund."
This contemporaneous legislative construction of this article of the constitution has been followed in all subsequent legislation (Session Acts, 1864, Myers's Supplement, p. 439; General Statutes, p. 236), and has been accepted as correct by all the departments of the state government.
When the proposition to increase the school-tax fifteen cents upon each one hundred dollars' worth of taxable property was submitted to the voters of the state for ratification, the act provided that the annual tax should "be levied and collected only upon the property of white persons," and be "expended for the education of white children exclusively." This act was approved on the 22d day of January, 1869, after the thirteenth and fourteenth articles of amendment to the Federal constitution had been declared adopted.
Prior to December 18, 1865, when it was officially announced that the thirteenth article had become part of the constitution of the United States, the negro population in Kentucky was generally in a state of slavery. The free negroes were not citizens of the state. They were mere residents without political rights. (Articles 7, 8, 9, chapter 93, Revised Statutes; article 10, State Constitution; Amy v. Smith, 1 Littell, 326.)
They were not citizens of the United States, and were not capable of becoming citizens thereof. (Naturalization Acts, April 14, 1802; March 26, 1804; May 22, 1824; May 24, 1828.) It was held, in the celebrated Dred Scott case, by the Supreme Court of the United States that a man of African descent, whether a slave or not, was not and could not be a citizen of the state or of the United States; and, notwithstanding the criticism to which this adjudication was subjected, it was never overruled; and the primary object of the fourteenth amendment was to relieve this race from the disabilities therein declared to be inherent in and inseparable from the African blood. (16 Wallace, 73.)
The thirteenth amendment abolished slavery, and prohibited involuntary servitude except as a punishment for crime, but it left the negro under all his former political disabilities, and with no political rights except such as the various states might see proper to permit him to enjoy.
We thus find that up to the 20th of July, 1868, when the fourteenth amendment was officially promulgated, our common-school system as organized and maintained was in perfect accord with the provisions of our state constitution, and with the expressed intentions of those who framed it, and in no wise repugnant to any provision of the Federal constitution.
The inquiry now arises, did the adoption of this amendment have the effect of repealing or rendering void and inoperative the laws under which our said system of common schools was organized, and under which they were being maintained at the time? If it did have that effect, then it is clear that the system was destroyed utterly on the day of its adoption, and that no steps could thereafter be legally taken to carry out the provisions of the eleventh article of our state constitution until the legislature should reorganize the system and make it conform to the amended Federal constitution.
The first section of the amendment under consideration embraces all the provisions that can have any application to the questions before us for adjudication. It defines first who are citizens of the United States and of the several states, and then declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
The main purpose of the first clause of this section was to establish the citizenship of a race of people who had not theretofore been citizens of the states or of the United States. (16 Wallace, 73.)
There is nothing in the section from which it can be inferred that any of the existing rights, privileges, immunities, or advantages secured by law, and by the state and Federal constitutions before the adoption of the amendment, to persons who were already citizens were to be destroyed, modified, or in the slightest degree abridged. The primary object of the amendment was to elevate the negro to a political...
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