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[Cite as Cooper and Worsham v. Savannah, 4 Ga. 68 (1848). Note: This decision regards "free persons of color" and to what extent they were possessed of rights in 1848. The court mentions the right to arms at page 72 which is in a seperate file.]

No. 6--Samuel Cooper and Hamilton Worsham, by their next friend, &c., vs. The Mayor and Aldermen of the City of Savannah.

[1.] Free persons of color are not citizens as contemplated by the Constitution and laws of this State.

[2.] A tax imposed by the corporate authorities of the city of Savannah, of one hundred dollars on free persons of color, who may remove from any part of this State, to reside in the city--who have no visible property, must be collected by hiring out such free persons of color, as provided by the Act of 1815 and not by imprisonment of such free persons of color, as declared by the city ordinance. Such ordinance being repugnant to the laws of this State, is void.

This was an application for discharge under a writ of habeas corpus, in Chatham county, before his Honor Judge Fleming.

The fifth section of an ordinance passed by the Mayor and Aldermen of the city of Savannah on the 27th day of August, 1839, reads as follows:

"Each free person of color who may remove to this city, to reside herein, from any other part of the State, shall pay to the Treasurer the sum of one hundred dollars, within thirty days from the date of his arrival as aforesaid, which said sum shall be in addition to any poll, or other tax, assessed by this ordinance upon free persons of color, and if the said sum be not paid as aforesaid, the Mayor upon information lodged with him of said default, shall and may issue his warrant, under his hand and seal, directed to the Marshall or any of the City Constables to execute, directing him, or any of them to arrest and commit to the common jail, such free person of color, so in default, and the said free person of color shall be confined therein until the said sum of money is paid, or he or she shall be discharged by order of council, or due course of law."

It was agreed, between counsel, before his Honor Judge Fleming, upon the return of the habeas corpus, that the petitioners were arrested by the warrant of the Mayor of Savannah, by virtue of the above section of the ordinance of 1839, and comitted on proof of the facts of removal and residence; they appealed to the Mayor and Aldermen in council, who confirmed the action of the Mayor. And that for default of payment, the petitioners were committed to the common jail.(p.69)

After argument by counsel, his Honor decided--

"That the question does not arise as to the power of the Mayor and Aldermen under the ordinance, but whether as a corporation, they had a right to pass such an ordinance. For the powers of the Mayor and Aldermen, we must look to the Acts of the Legislature. The 17th Section of the Act of 1825, enacts that the said Mayor and Aldermen shall have power to pass all ordinances, rules, and regulations, necessary for the government of slaves and free persons of color, within the city of Savannah, and hamlets thereof. Does this 17th Sect. empower the Mayor and Aldermen to pass the ordinance under which these petitioners are confined? The argument of counsel is, that no power is given to the Mayor and Aldermen to imprison, except by the 12th Sect. for fines, forfeitures and penalties, and that even then the imprisonment is limited to ten days and nights. To this it has been answered, that the 12th Sect. applies only to white persons--that the power over slaves and free persons of color, conferred by the 17th Sect. is unlimited, with the single exception that no ordinance, rule or regulation can be passed, contravening the laws of the State, or the institutions thereof. This answer to my mind, is satisfactory, and the only question to be determined, is, whether this 17th Section conflicts with any law of the State, or with the Constitution. I have not been able to bring my mind to the belief that It does." After giving his reasons therefor, his honor says: "So far from the ordinance conflicting with the laws of the State, it has carried out the very letter and spirit of those laws." **** "An effort has been made to place these petitioners upon the footing of citizens of our State. I have not the patience to attempt an answer to this argument. I simply say, they are not citizens, and God forbid they ever should be. It is true they have right, and such rights as they have are protected by our laws; but it is not among those rights to force themselves upon a community, who regard them as equally dangerous to themselves, and destructive of the comfort and happiness of their slave population." *** "I conclude by saying, as an explanation of the fact that I have not noticed certain points in the argument of counsel, that I have not regarded this hundred dollars as a tax, nor as a forfeiture, but as a municipal regulation to prevent the increase of free persons of color in our city. As such I deem it equally wise and proper. It is ordered (p.70)that the petitioners be remanded to jail." To which decision, counsel for petitioners excepted, and have assigned the same as error.

John W. Owens and McQueen McIntosh for plaintiffs in error.

We hold that His Honor erred in determining that the 17th Section of the Act of 1825 empowered the Mayor and Aldermen to pass the ordinance under which the prisoners are confined.

That Section empowers the Defendants to pass Ordinances, Rules and Regulations for the government of free persons of color. See Laws of Georgia, Vol. IV, 465.

The prisoners are confined by virtue of a clause of the general tax ordinance of the city of Savannah, not framed for police regulation, but for the purpose of raising money.

This ordinance is made under the authority conferred by the 7th section of the Act of 1825. By that section, the defendants in error are authorized to raise money in two ways.

1st. By Poll Tax. 2d. By assessment on real and personal estate. See Vol. IV, 464.

The hundred dollars demanded from the prisoners, if a tax, is illegally required, as it is expressly declared to be "in addition to the Poll Tax," and is not assessed upon real or personal estate.

If it be a tax, legally imposed, the mode employed for its collection is illegal.

Taxes due to the city of Savannah shall be collected in the same way as those due to the State. Vol. IV, 465.

Taxes due to the State by free persons of color are not collected in the manner pointed out by the ordinance. Prince's Dig. 859.

But if passed by virtue of the 7th or 17th section, it is equally Illegal, because it contravenes the laws of the State of Georgia.--See. Vol. IV., 465.

By the Common Law, a corporate body cannot force obedience to its by-laws by the imprisonment of the offender, nor by forfeiture, unless the power be given expressly. Clarke's Case, 5 Coke, 64. Chamberlain of London's Case, Ibid, 63. Kirk vs. Norill, 1, T. Rep. 118.

And this power is expressly given by the 12th section of the Act of 1825 alone, and the Court below decides that section to (p.71)be wholly applicable to white persons. By that section, the imprisonment is limited to ten days and nights.

His Honor erred in determining that free persons of color are not so far citizens as to entitle them to a residence in the city of Savannah at their pleasure.

In Georgia, free persons of color have constitutional rights.-- State vs. Philpot, Dudley's Rep. 46. Habeas corpus will lie in their behalf, Ibid. They may hold real estate, Prince's Dig. 797, 99. They are subject to taxation, Ibid, 859. They may sue and be sued, Ibid, 802.

The ordinance is unreasonable, oppressive, and unequal, and void, and his Honor erred in determining otherwise. Angel and Ames on corporations, top page, 289. ch. X, Sec. 5. Commonwealth vs. Worcester, 3 Pick. 462. Magna Charta, ch. XIV. R. M. Charlton's Rep. 26. Prince's Dig. 810.

If any one of the preceding points be sustained by this Court, his Honor erred in remanding the prisoners to jail.

R. M. Charlton, for defendants in error.

The points brought up may be classed under two heads. 1st. That the fifth section of the ordinance of the Corporation of Savannah is unconstitutional.

2d. That it is illegal--being in opposition to the laws of this State.

1st. Free persons of color are not citizens, but residents. A citizen is entitled to all the privileges of the State. These persons are not. Prince, 794. If citizens, they could represent us in the Legislature, for the constitution does not speak of free white citizens. Ib. 903.

2d. This is neither a tax nor a fine, but a municipal regulation intended to prevent these persons from accumulating in the City, passed under the 17th section of the Act of 1834, giving power "to pass all ordinances, &c., for the government of slaves and free persons of color."

If a tax, by the Act of 1815, (Prince, 859,) the collector has a right to levy on and hire out free persons of color, failing or refusing to pay their taxes. Until hired, they must be committed.

By the Court--Warner, J., delivering the opinion.

[Currently at pages 68-71.
Proceed to page 72.
Proceed to pages 73-75.]

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