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Baity v. Cranfill.

If this is not the intent, why was it necessary in the act. of 1879 placing kinship of the half blood upon the same footing as kinship of the full blood, that the authority to declare void the marriages between persons so related heretofore contracted should not be exercised unless in other cases of previous marriage it might be exercised? It is indeed in the nature of a statute of limitation upon the delegated or recognized judicial power, confining its exercise with a single exception to the life-time of the parties, and if cohabitation and offspring followed, withholding it afterward, so as not to operate as a posthumous bastardizing of children born to them. It is but saying to the parties thus living together and assuming the marital relation that it shall not be disturbed after death to the injury of innocent offspring. This is in our opinion the manifest purpose expressed in the legislation.

2. Is this legislation, so interpreted and understood, effectual in its operation upon pre-existing marriage contracts or is it ultraconstitutional?

The competency of the general assembly to impose implies the right to remove the restraints and conditions incident to the formation of the marriage relation and the contract which creates it. There are no vested rights in the present case to be affected by the legislation. Its force is spent in fixing the personal status of parties at the death of one of them, and placing it beyond the disturbing power of the court. Its declaration to the living is that the actual status then subsisting, where a child is born, shall be and remain a legal status when death comes and dissolves the relation for the future. The parties come under the operation of this law and choose to acquiesce in the announced result, when the relation remains unbroken in life.

We see no substantial reason for denying to the legislature the right to remove impediments that itself created, to a valid and effectual marriage, and which but for a positive act would not exist. In Moore v. Whitaker, 2 Harr. 50, where a similar disability from near relationship was imposed by the general law and was removed by a special enactment applicable to a single case, the court uses this forcible language in answer to a similar objection: "The disability was a statutory one. The legislature has the power to declare what shall be valid marriages. They can annul marriages already existing, a fortiori, they can render valid marriages which when they took place were against law.

Baity v. Cranfill.

The whole subject is one of legislative regulation, and the act to confirm this marriage, though contracted within the prohibited degree, disposed of all legal objection to its validity."

The power to annul marriages is in this State withdrawn from the general assembly and committed exclusively to the courts, but in the absence of such constitutional provision, the reasoning is equally applicable to the law of this State.

A similar decision was rendered in the Supreme Court of Maryland and an act validating a marriage between uncle and niece declared constitutional. Harrison v. State, 22 Md. 468. And so we have sustained legislation which retrospectively gave sanction and validity to the marriage of slaves at a period when they were incapable of entering into such contract. Acts 1866, chap. 40,

§ 5.

This legalizing effect was given to the relation where the cohabitation continued after emancipation from its origin, and directions are given to make this a matter of record. Code, § 1842.

The validity of the statute in creating retrospectively a legal marriage relation between slaves is upheld in Cooke v. Cooke, Phil. 583; State v. Harris, 63 N. C. 1; State v. Adams, 65 id. 537; State v. Whitford, 86 id. 636; Long v. Barnes, 87 id. 329.

In Cooke v. Cooke, supra, the extent of and the limits to the exercise of such legislative power are thus stated by the late chief justice: "If the marriage be a nullity for the want of the essence of the matter, that is the consent of one of the parties as in the case of Crump v. Morgan, 3 Ired. Eq. 91; 40 Am. Dec. 447, where one of the parties being lunatic the court decreed a divorce of nullity of marriage, neither a convention nor legislature nor any other authority has power to make the marriage valid; but if the marriage be invalid by reason of the non-observance of some solemnity which is required by statute, as the presence of a minister of the gospel, or a justice of the peace, that want of form may be supplied by an ordinance of the convention."

In the latter category may be placed the obstacle of near relationship interposed by the statute.

So in State v. Adams, BOYDEN, J., declares the effect of the act to be to all intents and purposes to render the parties, thus cohabiting, man and wife, and to devolve upon each the duties and responsibilities of the married state.

The legislation in reference to the marital relations formed be

Baity v. Cranfill.

tween slaves, by their consent to live together as man and wife, is not in this feature distinguishable from that now under consideration. A mere contract between persons of different sexes, followed by cohabitation, does not constitute marriage in a legal sense between slaves as it does not between free persons.

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"A slave being property," says PEARSON, C. J., "has not the legal capacity to make a contract, and is not entitled to the rights or subjected to the liabilities incident thereto. He is amenable to the criminal law, and his person (to a certain extent) and his life are protected Marriage is based upon contract, consequently the relation of man and wife cannot exist among slaves." Hence the efficacy of the enactment was to convert an illicit into a legal relation with the consent of the freedman, and on the conditions specified in the act, whereby the status of husband and wife was acquired with such incidents, aside from criminal liability, as as would attach to a marriage valid from the incipiency of cohabitation.

The act of 1879 does not however go so far. It does not render the connection legitimate from the beginning, making valid that which was before void. It simply limits the time in which legal proceedings may be instituted to annul the marriage, or in which its nullity may be adjudged collaterally in a pending case, and this action must take place during the lives of both, or where issue is born, it cannot take place at all. Death under such circumstances gives legal sanction to that which had been forbidden, and places the validity of the marriage contract beyond further question, except for the causes upon which the statute does not operate. What reasonable objection can be made to a law thus operating upon a marriage relation formed de facto. and not authorized because of a mere disabling statutory interdict, where the parties themselves have assented to and recognized the relation ?

The proviso is broad and comprehensive in its declaration that under such circumstances after death, "no marriage followed by cohabitation, and the birth of issue (subject to the exceptions) shall be declared void," that is, adjudged void in any legal proceeding.

There could be no direct proceeding for a sentence of nullity except during life, for such sentence affects the personal status or condition of parties, and no one can represent either when dead. The meaning is that such marriage must then stand with all its legal consequences, and its validity no longer open to controversy,

Clark v. Wilmington and Weldon Railroad Company.

and such legislation is in our opinion free from complaint as to its validity.

This view disposes of the appeal and renders it unnecessary to pass upon other matters presented in the argument. There is error in the ruling of the court upon the exception and in dismissing the action. This will be certified for further proceedings in the court below according to law as declared in this opinion. Error.

Reversed.

CLARK V. WILMINGTON AND WELDON RAILROAD COMPANY.

Railroad

(91 N. C. 506.)

ejection for non-payment of fare.

The plaintiff took passage on the defendant's railway for a station four miles distant. He depended on a friend taking passage at the same time to pay his fare, but that person got into another car. When the conductor demanded his ticket he told him he had neither ticket nor money, but would go into the other car and get the money from his friend. The train was midway between the stations. The conductor refused to delay, and put him off. Held, that he could recover damages.

A

CTION for ejection from railway train. The opinion states the case. The plaintiff had judgment below.

Mullen & Moore, for plaintiff.

Day & Zollicoffer, for defendant.

SMITH, C. J. The plaintiff, while at Whitaker's station, on the defendants road, awaiting the arrival of the train, on which he intended to take passage for Battleboro, a station four miles distant, and being himself without money, made arrangements with two others, Isaac Powell and T. P. Braswell, who were also going on the same train, in which each agreed to pay his fare of twenty-five cents, the charge between those points.

When the train came, all three, with twenty or more others, entered it, the plaintiff taking a seat in the forward coach, Braswell in that next behind, and Powell in that where the plaintiff was, or one next in front.

Clark v. Wilmington and Weldon Railroad Company.

When the conductor was passing through the coaches, taking up the tickets and collecting fares, from front to rear of the train, he came to the plaintiff, who said he had neither ticket nor money, but would get the fare, if allowed to go to the coach behind, from a gentleman sitting there.

The conductor refused to do so, saying, "you must get off. I have not time to wait for you. I have something else to do." The train was then about half way between the stations, moving at a rapid rate, when the conductor stopped the train and compelled the plaintiff to get out.

Braswell would have advanced the money and paid the fare upon application. As the plaintiff descended from the coach and was on the lowest step, Powell offered to pay the fare, but the conductor declined to receive it, saying, "you are too late, go and attend to your own business."

In expelling the plaintiff there was no actual force employed against his person, but the order was given, and assistants were present to execute it, and the plaintiff submitted.

The action is to recover damages for this ejectment of the plaintiff, and the sole question raised by the appeal is, whether under the circumstances the conductor had a right to put the plaintiff off the train.

An instruction was requested for the defendant, in the charge given to the jury, in these words: "When the conductor demanded of the plaintiff his ticket, and he tendered neither ticket nor money, the conductor had the right to eject the plaintiff."

This was refused, and instead the jury were directed as follows: "The conductor was not bound to go into the other car to get the fare from Braswell, but if Braswell had money and was ready and willing to pay the fare of the plaintiff, and plaintiff told him before he stopped the train and started to eject him that a friend in the next car would pay his fare, then the conductor ought to have allowed plaintiff a reasonable time to get the fare."

The whole controversy is involved in these two instructions, the one refused and the other given.

There can be no question of the right of the officer, in charge of a train of passenger coaches, to remove any one who has entered and refused to pay his fare or produce his ticket, as evidence of its having been paid to some authorized agent of the company, unless he is travelling with its permission without.

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