5 Blackf. 283 | Ind. | 1840
The overseers of the poor for Madison township, Jefferson county, on the 7th of February, 1839, filed a complaint before a justice of the peace, representing that George D. Baptiste, a mulatto person, then was a resident of that township; that he came to this state since the first of September, 1831, and that he had not “given bond with security as is required by the first section of an act entitled ‘An act concerning free negroes and mulattoes, servants and slaves,’ approved February 10th, 1831.” Baptiste was summoned to appear and show cause, if any he could, why he should not comply with the provisions of the aforesaid act; he appeared and pleaded not guilty. The justice, having heard the evidence, adjudged that Baptiste had come to this state since September 1st, 1831; that he had not given any bond; and that he should give bond with surety “as required by the first section of the aforesaid act, or, in default thereof, that he be removed from this state, by the overseers of the poor of the township aforesaid, to the state where he was last legally settled.” Baptiste appealed to the Circuit Court, by which it was adjudged “that the judgment of the justice of the peace be affirmedand the Court ordered, “ that the said justice issue his warrant to the overseers of the poor of Madison township, commanding them to remove the said defendant from this state to the state where he last legally resided, unless, within--days, he should give bond and security as required by the first section of the act entitled “An act concerning free negroes and mulattoes, servants and slaves, approved February 10th, 1831.” From this judgment Baptiste has appealed to this Court.
The counsel for the appellant has called in question the constitutionality of the law on which these proceedings are founded, and contends that it is null and void.
Since this cause was submitted, this point has been settled by this Court. In the cáse of The State v. Cooper, decided at the last term, we held that the statute of February the 10th, 1831, concerning free negroes, &c., is not so clearly
Another objection against the correctness of the judgment of the Circuit Court has been urged, which must prevail; it is, that the judgment is unauthorized by the act itself.
The first section provides that no black or mulatto person, having come, or been brought, into this state since September 1st, 1831, shall be allowed to remain, unless he give bond in the manner prescribed. The second section prescribes, that if such person shall fail to comply with the provisions of the first section, it shall be the duty of the overseers of the poor in any township where he may be found, to apply to a justice of the peace for a summons calling before him such negro, or mulatto, to show cause why he should not comply with the provisions of the act; and if the defendant shall fail to give the bond and security required by the first section, after having been brought before the justice, it shall be the duty of the overseers to hire him out for six months, for the best price in cash that can be had — the avails of which hiring shall go into the county treasury, and be applied to the use of the person hired at the discretion of the overseers; or the overseers, at their option, shall remove such negro or mulatto without the jurisdiction of this state, in the same manner, and under the same rules and regulations, as are pointed out in the act for the relief of the poor. R. S. 1838, pp. 418, 19.
It becomes necessary to inquire, what power the foregoing provisions of this law confer upon justices of the peace, and overseers of the poor, over that class of people embraced by its rigorous enactments ? The authority of the justice, in the first instance, is confined to summoning the negro or mulatto before him, on the application of the overseers, to show cause why he should not comply with the provisions of the act — that is, give the bond and security required by the first section. In this investigation the questions are, Did the defendant come into the state after the 1st of September, 1831? Has he given the requisite bond? If these matters are found against him, the justice is to adjudge that he give such a bond as the statute requires, describing it. Here the power of the justice ends, for the time. If the defendant fail to give the bond, the overseers of the poor are to make
The statute in question gives no right of appeal from the judgment of the justice to the Circuit Court; but we think the case comes within the general provision of the justice’s act, authorizing appeals from all judgments rendered by those magistrates. The appeal stands in the Circuit Court as an original case, and that Court, on the trial of the merits, should render such a judgment as the justice should have rendered under like circumstances. The adjudication of the Circuit Court in this case, in the general language that the judgment of the justice “be affirmed,” is irregular. But admitting it to be sufficiently explicit to be legal, and that it so adopts the judgment of the justice, as that we can act upon it as the judgment of the Circuit Court, it is still erroneous. The judgment is, that the defendant give bond, &c., or in default thereof that he be removed. The statute does not confer upon the justice, or the Circuit Court, the authority to decide, in the first instance, that the defendant be removed if he fail to give bond, &c. That is a matter which rests in the dis
As no objection was made either before the justice or in the Circuit Court to the validity of the complaint, on which Baptiste was summoned to appear before the justice, we have not considered whether the allegation that he had not “given bond with security as is required by the first section,” &c. was sufficient to put him on his trial. Nor have we inquired whether the evidence, which is spread upon the record, justified a judgment against the defendant.
The judgment is reversed, and the proceedings subsequent to the appearance of the parties in the Circuit Court set aside, at the costs of the relators. Cause remanded, &c.