#### WILLIAMS *v.*DIRECTORS OF SCHOOL DISTRICT, No. 6, &c.

White persons — color—blood—common schools — Irregular proceedings.

•Persons having more than one half white blood are entitled to the privilege of whites.

The children of a while mother and a father three fourths white, are white and entitled to participate in the school fund.

It is shabby to exact from such a tax to support schools and exclude their children from the schools.

The term white chiUhen in the law describes *blood*not complexion, which would be an unsafe guide.

*579Where the suit is against school *district*6 — the declaration against *district*5 — the judgment in favor of *district*5, and a writ of error against *district*6, the proceedings are so irregular that the plaintiff could not have judgment, and therefore the judgment is affirmed against him.

Error to the Common Pleas. Williams brought suit against *Cilly, Noble*and *Lefler,*whom he described as directors of school district No. 6, in Whitewater township. He declared in case against4 *the directors of school district No.*5,’ *Sfc.*Without describing them by name, that the district was duly organized, and that one Noble kept a common school there five months; that the plaintiff was a citizen and resident householder of the district, for five years, had property taxable for schools, had five white children over four years old which he sent to said school, who were refused admission by the direction of the defendants. — Plea not guilty.

It was proven on the trial that the plaintiff was one-quarter negro, and his wife, the mother of his children, a white woman; and that the plaintiff had paid taxes for schools in 1831. All the other allegations in the declaration were admitted to be true. Upon which the court below gave it as their opinion that the plaintiff could not sustain his action, and the jury without retiring found for the defendants, on which finding judgment was rendered. The plea, verdict and judgment, were for and against school directors *No. 5,*without name. The bill of exceptions describes the proceedings as relating to school district, *No.*6. The writ of error, &c. is for No. 6.

*Strait*and *Hawes,*for the plaintiff in error.

*Van Matre*and *N. Wright,*contra,

contend that the school fund is raised for *white children*only — the law used to prohibit black and mulatto persons — it is now changed and admits white persons only to participate in the school fund.

But if not so, this record shows a proceeding so defective that the plaintiff had no right to recover: (29 *O. L.*414.)

Lane, J.

The law provides that while the teacher is employed out of the common school fund, the school shall be free to all *white children:*(29 *O. L.*422.) The real question we are asked to decide is, whether the children of a *white mother,*and *a father*three-quarters *white*are *white children*within the meaning of the law ? This Court in Bank, in *Gray v. Ohio,*(4 *O.R.*354,) determined, that persons nearer white than a mulatto, or half blood were entitled to the privileges of whites. The color of the party does not sufficiently mark the distinction between the two races of people. In this case Mr. *Van Matre*and Mr. *N. Wright,*insist that we resort to the *color*or *complexion*to determine who are *white persons*and do not inquire of the blood. *It is obvious to us,*that a resort to *color*would be un*580satisfactory, and might operate to exclude many children not intended to be excluded by the Legislature. We think the term white as used in the law, describes *blood*and not complexion, and are satisfied with the construction heretofore given. The plaintiff’s children, therefore, are white within the meaning of the law, though the defendants have had the shabby meanness to ask from him his contribution of tax, and exclude his children from the benefit of the schools he helped to support. He might well sustain the action, and the Common Pleas erred in determining otherwise on that ground; yet our examination shows that these proceedings have been so negligently conducted* for the plaintiff, as to present- for him no right to judgment; although, therefore, we decide the main question for the plaintiff in error, we must affirm the judgment with costs.