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The defendants in error, under the 5th sec tion of the Mechanic's Lien Act (Rev. 669), claim a lien upon two cloth printing machines fixed in the soil, in buildings belonging to the Passaic Bleachery, because of work done in engraving, upon copper shells, patterns to be printed on cloth. These shells are cylinders which fit on mandrels or rollers constructed with the printing machines. A protrusion from the inside of the shell, called a "feather" (of uniform size in all shells), fits a groove in the mandrel, and keeps it from slipping as the mandrel revolves. The printing machines are sold, in this country and in England, as complete without shells. Shell-making is a distinct industry. The manufacturers of the printing machines do not make them. In fitting a shell, it is necessary that its internal diameter, or bore, shall correspond with the diameter of the mandrel of the machine by which it is used, but in all other respects the machine is adjustable, within limits, to the use of any shell. Sizes of mandrels and bores of shells are regulated by agreement between manufacturers, so that any size of either may be ordered by an agreed designation, without special measuring or fitting. For instance, the mandrels of the machines of the Bleachery Company are of that size which requires the shells to be used by them to have what is called an "E bore." A single pattern is engraved upon the external surface of each shell, and hence a printer's shells must be as numerous as the patterns he prints.

The Passaic Bleachery has 500 shells, and only two printing machines. The defendants, who are engravers in the City of Newark, have engraved patterns upon 76 of these 500 shells. The shells upon which they are worked were delivered into their possession at their place of business, and, after the work of engraving was done, were returned to the bleachery. The defendants did not do any work upon the printing machines themselves, and did not do anything to the shells which affected their mechanical connection with those machines. The lien is claimed simply because of the engraving. By the surrender of the possession of the shells, after the engraving was completed, the lien which the common law gave upon them was lost. The contention now is that, by the Statute, a lien can be had upon the printing machines as for work done in the construction or alteration of "fixed machinery," or of "fixtures for manufacturing purposes." Rev. p. 669, § 5; Supp. Rev. p. 456, § 3.

7 L. R. A.

The two printing machines are admitted to be "fixed machinery," within the intendment of the Statute. It is obvious that the simple question now to be considered is whether the shells are parts of the printing machines. If they are parts of them, it is apparent that the lien claimed must extend, not only to the machines, but also to the 500 shells which are held for use by them. The test by which this question should be determined is the inquiry whether the shells are essential to the completeness of the machines for the purposes for which the machines were designed. It has been held in several cases, which suggested this test, that rollers specially fitted for a machine designed for rolling iron are parts of it, because, without them, that machine cannot perform its functions, and would not pass as complete; and, as well, that duplicate rollers fitted to such a machine are parts of it, because their design is to render the machine more efficient. The plain purpose of the rolling-mill is to reduce iron to shape. Without rollers, it cannot accomplish this purpose, and hence it is not complete or salable without rollers. The office of the printing machine is not to itself print, but to apply that which prints to that which is to be printed upon. When sold, it is considered as complete without shells, just as the iron-rolling machine is complete without the iron upon which it operates. It stands upon the footing of the book-printing press, which is complete without types or stereotype or electro-type plates which it applies to paper. I do not conceive that a workman who alters, or even constructs, one of 10,000 stereotype plates used by a book publisher, could claim a lien upon the publisher's presses and his 10,000 plates as part of that press. It is evident that, to avoid such an absurdity, the plate must be regarded as a separate article, that the press is designed to use. I think it is plain that the shells were not parts of these printing machines.

But, if the question whether the shells are to be regarded as parts of the printing machines be doubtful, it appears to me that the court's conclusion in this case may rest upon another ground. The purpose of the Statute is to afford mechanics a lien upon machinery of which they cannot have such possession as would give them a lien by the common law. The statu tory lien is confined to "fixed machinery.' With this purpose of the Statute in view, it follows that, where machinery is of such a character that the common-law lien may be bad upon it, doubts should not be so resolved as to hold the machinery to be also subject to lien under the Statute. In other words, in such cases doubts should be resolved against the statutory lien.

Here the defendants in error at one time had a lien by the common law. Upon these grounds I think that the judgment below should be reversed.

Reversed unanimously.

UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF GEORGIA.

STATE OF GEORGIA

v.

Charles TUTTY.

STATE OF GEORGIA

V.

Rose WARD.

(....Fed. Rep.....)

*1. By the settled policy of the State of Georgia marriage relations between white persons and persons of African descent are forever prohibited, and by the Statutes of the State such marriages are declared null and void. 2. These Statutes have been held to be in accordance with the Constitution, by the supreme appellate tribunal of the State.

3. The Statutes of the State also declare that all marriages solemnized in another State, by parties intending at the time to reside

in Georgia, shall have the same legal effect as if solemnized in the latter State, and, further, that parties residing in Georgia cannot evade the provisions of its laws as to marriage by going into another State for the solemnization of the marriage ceremony.

4. The contract of marriage is not a 66 contract" within the meaning of the provision in the Constitution of the United States prohibiting States from impairing the obligation of

a contract.

which had been removed from such court to the federal court for trial for the alleged reason that they presented federal questions. Granted.

The case is fully stated in the opinion. Mr. W. Wallace Fraser, Solicitor-Gen eral, for the motion.

Mr. James Atkins, contra.

Speer, J., delivered the following opinion: It appears from the motion to remand, as well as from the petition for removal before the court, that the defendant, Charles Tutty, has been for many years a citizen and resident of Liberty County, in this State. The grand jury of that county presented an indictment against Tutty, charging him with the statutory crime of fornication on the 1st day of April, 1889, and at other times, with one Rose Ward, a woman of African descent, and formerly a slave, also a citizen of the State of Georgia and domiciled in the County of Liberty.

It appears further that after the indictment was found the said Tutty and the said Rose Ward, or Rose Tutty, as she calls herself, repaired to the District of Columbia and were married there in accordance with what are understood to be the laws of the United States for that District.

At the trial term of the Superior Court of Liberty County, to wit: on the 3d day of December, 1889, and before the trial of the crim inal indictments above mentioned, both of the parties indicted presented to the state court petitions for the removal of the cases for trial into this the circuit court of the United States for this district. The petitions are practically identical. They recite the substance of the indictment. They deny the fornication. They state that the relations between the parties, which are described more in detail in the petition, "existed at a time when she (Rose Ward or Rose Tutty) was petitioner's lawful wife or under circumstances in which he and she were and

5. Marriage is more than a contract.
It is an institution which is the foundation of the
family and of society; the rights and qualifications
of the parties thereto depend upon the legislation
of the State as controlled, for the benefit of the
entire community, by principles of public policy.
6. Where the statutory law is silent as to
the effect of marriages between persons domiciled
in a State and who leave it with the purpose of
solemnizing the marriage elsewhere, to evade such
laws, but intending to return and live therein, the
marriage may be upheld where the inhibition re-
lates to form, ceremony or qualifications depend-are
ing on age or like condition.

7. When, however, the marriage is in-
hibited by a positive policy of the State, as af-
fecting the morals and good order of society and
leading to serious social evils, the marriage will

be held void.

8. Where the State has enacted legisla

secured from lawful prosecution in the had been duly married to said Rose in the Dismanner attempted in said case. That petitioner trict of Columbia, and the acts which are charged to have been done, if done at all, were and are under their lawful executed contract of

marriage with each other in full accordance tion declaratory of the effect of marriages, exwith the requirements of the laws then in force traterritorially, of its citizens, who thus seek to in said District of Columbia. Petitioners furevade its positive policy and penal laws, the Stat-ther state that the prosecution against them is

ute affords the rule of decision.

9. Where Tutty, a white man, and Ward, a negro woman, were indicted in the state courts for fornication, and thereafter repaired to the District of Columbia and were married, immediately returning to Georgia, and thereupon attempted to remove into the United States court the indictments pending against them, the petition for removal was denied and the indictments remanded to the court of the State.

(February 4, 1890.)

O arising from indictments for fornication,
N motion to remand to the state court causes

*Head notes by SPEER, J.

based upon a law of Georgia forever prohibiting the relation of marriage between white persons and persons of African descent. That such law denies to the petitioners the right se cured to them by the Constitution and laws of the United States, providing for equal civil rights of themselves and all other citizens of the United States, to protection against the laws in a State impairing the obligation of contracts.

The Honorable Robert Falligant, of the superior court, declined to entertain these motions, whereupon the defendants filed in this proceeds the term, the court having been court a certified transcript of the record of the proceedings of the superior court, and on the

notified that the Solicitor-General of the East

See also 34 L. R. A. 773; 39 L. R. A. 539; 42 L. R. A. 343.

Section 4572, Code, presents the penalty for adultery or fornication between individuals of the races, and under this section the indict ments against the defendants were found.

ern Judicial Circuit, who is the counsel repre- hibited, and such marriages shall be null and senting the State of Georgia in its criminal | void." prosecutions, would move to remand the causes to the court whence the transcript was taken, regularly assigned the hearing of the said motion for trial. The motion to remand, which the court required to be in writing, presents several grounds:

1. It is insisted the case should be remanded because the defendants made no appearance in the state court, and that their bonds were estreated; that their counsel, James Atkins, Esq., admits that he advised his clients to remain away from said state court as it was not necessary that they should be there in person when said motion for removal was made.

2. Because it appears that the indictments against the defendants charged the offense to have been committed on the 1st day of April, 1889, whereas it is not pretended that the alleged marriage took place until the 15th day of the same month.

3. Because the defendants have been citizens and domiciled in the County of Liberty for many years; that the defendant Rose Ward was born a slave; that they removed to Chatham County after the finding of the indictment, but that, while domiciled in the County of Liberty and citizens of the State, they went to the District of Columbia, and were married there in order to evade the laws of the State of Georgia, prohibiting marriages between whites and blacks, and that immediately after said marriage they returned to the County of Liberty. The defendants filed affidavits to the effect that their lives would have been in danger had they attended court in Liberty County, as they were bound to do by their bond, but they do not indicate any satisfactory, or, indeed, credible, reason for that statement.

Without bestowing very great attention on the technical reasons urged for remanding these cases, it is, in the opinion of the court, the wisest and most serviceable course to consider and decide the motion upon the grave and important question which it presents.

Does the law of the State which prohibits and makes void a marriage between individuals of the Caucasian and of the African races deprive the parties in this case of their rights, guaranteed to them by the Constitution and laws of the United States, or, to state the question as it is more narrowly presented by the petition of the defendants, do the statutes of the State have the effect to violate the obligation of the marriage contract in the sense in which the Constitution of the United States inhibits state action which violates the obligation of a contract? It would, perhaps, be impossible to overstate the importance of this question under the grave and unsettled relations which exist between the distinct races now inhabiting a large portion of these United States, and it will not be wise nor patriotic for the court to evade the vital point of decision as might perhaps be done in this case.

By a settled policy of this State, a policy adopted with the purpose to preserve, as far as the laws may accomplish that result, the purity and integrity of the races inhabiting the State, it is declared, (Code, section 1768):

"Marriage relations between white persons and persons of African descent are forever pro

Section 1710 of the Code provides as follows: "All marriages solemnized in another State by parties intending at the time to reside in this State shall have the same legal_consequence as if solemnized in this State. Parties residing in this State cannot evade any part of the provisions of its laws as to marriage by going into another State for the solemnization of the marriage ceremony."

It will thus be seen how clearly recognized and distinctly fixed is the purpose of the State of Georgia to prohibit within its borders miscegenation as the result of marriages between the white and black races.

These Statutes have received judicial construction by the Supreme Court of the State at a period when its judges were widely known, not alone for their conservatism, their devotion to the Constitution of the common country, their broad and tolerant liberalty of opinion, but also for their profound learning and conspicuous intellectual power.

In Scott v. State, 39 Ga. 321, this decision will be found: Leopold Daniels, a Frenchman, had married Charlotte Scott, a negro woman. They were indicted for cohabiting, and thus the question arose.

Chief Justice Joseph E. Brown pronounced the unanimous opinion of the court, of which the other members were the Hon. H. F. McCay, more lately the United States Judge for the Northern District of Georgia, and the Hon. Hiram Warner, afterwards himself the illustrious chief justice of the State.

Of the law Chief Justice Brown makes these observations:

"I do not hesitate to say that it was dictated by wise statesmanship, and has a broad and solid foundation in enlightened policy, sustained by sound reason and common sense. The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observations show us that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full blood of the other races. It is sometimes urged that such marriages should be encouraged for the purpose of elevating the inferior race. The reply is, that such connections never elevate the inferior race to the position of the superior, but they bring down the superior to that of the inferior. They are productive of evil, and evil only, without any corresponding good.'

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The court was unanimous that the law was constitutional, and the conviction of the parties was affirmed.

An identical conclusion was reached by this court, Judge Erskine pronouncing the decision, in the case of Hobbs and Johnson, 1 Woods, 537.

The section of the Code above quoted is interpreted, and is held not to be an infraction of the 14th Amendment of the Constitution of the United States, or of the laws Congress has made for its enforcement.

In the course of his opinion, page 540, Judge

clares "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature."

Erskine says: "Nor, I apprehend, is marriage On page 205 [657] of the decision, he de considered to be embraced within that clause of section 10 of article 1 of the National Constitution, which prohibits the State from passing any law impairing the obligation of contracts." He quotes the declaration of Chief Justice Marshall, in Dartmouth College v. Woodward, 17 U. S. 4 Wheat. 518 [4 L. ed. 629], that "the provision in the Constitution has never been understood to embrace contracts other than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. It has never been understood to restrict the general rights of the Legislature to legislate on the subject of divorce." In another part of the opinion, the same great magistrate said: "The framers of the Constitution did not intend to restrain the States in the regulation of civil institutions adopted for internal government.'

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Judge Erskine concludes that it is plain that the institution of marriage is not technically a contract, nor can it be said to be related to property. He quotes the declaration of Mr. Bishop: "All our marriage and divorce laws are state laws and state statutes, the national courts with us not having cognizance of the matter within our localities." 1 Bishop, Mar. and Div. § 87.

Calling attention to the fact that the state marriage regulations did not deny to a citizen the equal protection of the laws, for the punishment or penalty adjudged to the colored citizen found guilty of fornication is like that, and none other, which is inflicted on the white citizen, he holds that the sections of the Code of Georgia which inhibit marriage between white persons and persons of African descent, and which provide for the punishment of the colored and white persons who are found guilty of the crime of fornication, are not in violation of the Constitution of the United States, and the relators were remanded to the state courts. The conclusion of Judge Erskine, that the marriage contract is not contemplated by the prohibition of the Constitution of the United States against the impairment of contracts by state legislation, has been, subsequently to the rendition of the decision above quoted, fully sustained by two decisions of the Supreme Court of the United States. In the case of Maynard v. Hill, 125 U. S. 190 [31 L. ed. 654], it was held that marriage is something more than a mere contract, though founded upon an agreement by the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of each depend, not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution, or annulling a relation between parties, is not within the prohibition of the Constitution of the United States against the impairment of a contract by such legislation. It may be observed that this decision was rendered upon the effect of territorial legislation annulling a marriage. A fortiori, this announcement will control with reference to the legislation of a State.

The language of Mr. Justice Fields is peculiarly apposite and instructive with reference to the important controversy before the court.

He cites many cases where the Legislatures of States have annulled marriages. He calls attention to the fact that this power was formerly exercised by the Parliament of England, and it may, with reason, be asked, if this power has been formerly exercised by state Legislatures after a marriage has been contracted, may it not, with more of force and reason, be exerted to prevent the marriage, if it would be objectionable and contrary to public policy?

Upon the main point on which the defendants here rely, the learned justice says: "The only inconsistency suggested is, that it impairs the obligation of the contract of marriage. Assuming that the prohibition of the Federal Constitution against the impairment of contracts by state legislation applies equally, as would seem to be the opinion of the Supreme Court of the Territory, to legislation by territorial legislatures, we are clear that marriage is not a contract within the meaning of the prohibition."

He quotes the language of Chief Justice Marshall, quoted supra. With reference to marriage, he says: "It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. This view is well expressed by the Supreme Court of Maine in Adams v. Palmer, 51 Me. 481, 483."

It will be interesting and important to consider the language of this case, to which Justice Field quotes with approval.

Chief Justice Appleton declares that "when the contracting parties have entered into the married state, they have entered into a new relation, the rights and obligations of which rest, not upon their agreement, but upon the law of the State, statutory or common, which defines and prescribes those rights, duties and obligations. They are of law, not of contract. Their rights under it are determined by the will of the sovereign, as evidenced by law. It is not, then, a contract within the meaning of the clause of the Constitution which prohibits the impairing of the obligation of contracts. It is, rather, a social relation, a creation of the law itself; a relation of the utmost importance as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress."

And the Chief Justice cites, in support of this opinion, the case of Maguire v. Maguire, 7 Dana, 181, 183, and Ditson v. Ditson, 4 R. I. 87, 101. In the first of these, the Supreme Court of Kentucky said that marriage was more than a contract; that it was the most elementary and useful of all the social relations regulated and controlled by the sovereign power of the State and might be abrogated by the sovereign will whenever the public good would thereby be subserved; that being more than a contract, and depending especially upon the sovereign will, it was not embraced by the con-

stitutional inhibition of legislative Acts impair- | sat Mr. Justice Creswell, held that the marriage ing the obligation of contracts.

The Supreme Court of Rhode Island, in the case above quoted, declares it is not a contract in the sense in which the obligation may not be impaired, but one of the domestic relations. In Wade v. Kalbfleisch, 58 N. Y. 282, it is declared to be more than a contract, its relations always regulated by the government. It partakes more of the character of an institution, regulated and controlled by public authority, upon principles of public policy for the benefit of the community.

In Noel v. Ewing, 9 Ind. 37, it is declared to be in every enlightened government, pre eminently the basis of civil institutions and thus an object of the deepest public concern."

The illustrious Story, in his great work on the Conflict of Laws, paragraph 108, note, fully sustains this view: "It follows within the full precincts of absolute and paramount administration by the controlling authority, that the marriage contract is not within the provision of the inhibitory clause of the Constitution denying to the State the power to impair contracts.'

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This doctrine has been repeated by the Supreme Court of the United States in the case of Hunt v. Hunt, 131 U. S. Appendix clxv. [S. C. in its place chronologically 24 L. ed. 1109]: "The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing the obligation of contracts."

In the case of Kinney v. Com. 30 Gratt. 858, 32 Am. Rep. 690, the precise question in this case was decided adversely to the defendants here. There a negro man and a white woman domiciled in Virginia, went, as in this case, to the District of Columbia, and were regularly married, and after remaining there ten days returned to their home in Virginia and continued to reside there as husband and wife. The law of Virginia, like the law of Georgia, prohibits marriages between white persons and negroes. It was held that the parties were liable to indictment in Virginia for lewd and lascivious cohabitation; that the marriage in the District of Columbia was a mere evasion of the laws of Virginia, and could not be pleaded in bar of the prosecution. The case is therefore precisely in point. There the argument was made that the laws of a State, with reference to marriage, could not operate extra territorium. Conceding the general rule, the learned court proceeded to point out the exceptions, citing Mr. Justice Story, in his work on the Conflict of Laws, section 113a: "The most prominent, if not the only known, exceptions to the rule are those marriages involving polygamy and incest, those positively prohibited by the laws of a country upon motives of policy." The case at bar would seem clearly within the latter classification.

Reference is made in the opinion from which we quote to the case of Brook v. Brook, 9 H. L. Cas. 193. In that case William Leigh Brook married in Denmark Mrs. Emily Armitage, his first wife's sister. The parties were lawfully domiciled in England and had gone to Denmark on a temporary visit. The marriage was lawful in Denmark. In a suit among the heirs of Brook, Vice-Chancellor Stuart, with whom

in Denmark was, by the well-known law of England upon the subject, wholly invalid. The case was appealed to the House of Lords, and was there considered with great carefulness. Opinions were rendered by the Lord Chancellor Campbell, Lord Cranworth, Lord St. Leonards and Lord Wensleydale.

The Lord Chancellor declared: "While the forms of entering into the contracts of marriage are to be regulated by the lex loci contractus the essentials of the contract depend upon the lex domicilii. If the contract of marriage is such in essentials as to be contrary to the law of the country of domicil, and it is declared void by that law, it is to be regarded as void in the country of domicil though not contrary to the law of the country in which it was celebrated." All the law Lords concurred with the opinion of the Lord Chancellor. The same doctrine is affirmed in this country, in North Carolina (Williams v. Outes, 5 Ired. L. 535; State v. Kennedy, 76 N. C. 251; State v. Ross, 76 N. C. 242), and in Louisiana (Dupre v. Boulard, 10 La. Ann. 411); and the Circuit Court of the United States for the District of Virginia seems to have concurred in the opinion of the state court, in Kinney v. Com. above quoted. Ec parte Kinney, 3 Hughes, 1.

The principle, as we have seen, is made the law of the State of Georgia by the express Statute quoted above. By statute and by unbroken authority then, except by the case of Medway v. Needham, 16 Mass. 157, such marriages, between parties domiciled at the time in the State, as are declared void by the laws of the State, will be held invalid, no matter where they were contracted.

The case of Medway v. Needham, 16 Mass. 157-161, was the occasion of an interesting and learned discussion of the conflict of laws relative to marriage, and especially of the validity of marriages between persons domiciled in a State, who temporarily left it to evade its marriage laws (Story, Conf. L. 5th ed. p. 230, note), in which the distinguished author, with much of warrant in the renown of its courts and the learning of its judges, favors, not unnaturally, the ruling in Massachusetts. An attentive consideration of the reasoning of the text and the note will make it appear, however, that the author did not have in mind a case like that under consideration here. The true rule is stated with satisfactory clearness in the recent case of Pennegar v. State, decided by the Supreme Court of Tennessee on 29th of January, 1889, and reported in that useful and valuable periodical, the Lawyers Reports, Annotated, Vol. 2, p. 703 [87 Tenn. 244]. Stating the general rule that a marriage valid where celebrated is valid everywhere, the court calls attention to the exceptions. Of these the most important is a marriage which the local law-making power has declared shall not be allowed any validity either in express terms or by necessary implication.

Marriages of this class are divided by the court into two subdivisions: (1) where the statutory prohibition relates to form, ceremony and qualifications; (2) marriages which are prohibited by positive state policy as affecting the morals or good order of society. Justice Folkes, for the court, presented the distinction

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