Sinks v. Reese.

of the constitution of the United States above referred to, fixes the exclusive jurisdiction of the general government over this institution, its lands and its inmates, "in all cases whatsoever," except as to the execution of process issuing under state authority.

2. This leads us to consider what is the legal status of persons who become residents upon the grounds, and within the limits, of the institution thus within the exclusive jurisdiction of the United States; and how does it affect their claim to exercise the elective franchise in Ohio, under its constitution and laws? In passing on these questions, there is little need of speculative reasoning; for they have been in effect settled by repeated decisions of courts of high and conclusive authority. By becoming a resident inmate of the asylum, a person, though up to that time he may have been a citizen and resident of Ohio, ceases to be such; he is relieved from any obligation to contribute to their revenues, and is subject to none of the burdens which she imposes upon her citizens. He becomes subject to the exclusive jurisdiction of another power, as foreign to Ohio as is the states of Indiana or Kentucky, or the District of Columbia. The constitution of Ohio requires that electors shall be residents of the state; but under the provisions of the constitution of the United States, and by the consent and act of cession of the legislature of this state, the grounds and buildings of this asylum have been detached and set off from the state of Ohio, and ceded to another government, and placed under its exclusive jurisdiction for an indefinite period. We are unanimously of the opinion that such is the law, and with it we have no quarrel: for there is something in itself unreasonable that men should be permitted to participate in the government of a community, and in the imposition of charges upon it, in whose interests they have no stake, and from whose burdens and obligations they are exempt. In 1811 the case of Commonwealth v. Clary was decided by the supreme court of Massachusetts. 8 Mass. 72. It was an indictment under the laws and in a court of the state for selling spirituous liquor without license, within grounds purchased by the United States within the town of Springfield with the consent of the legislature of the state, and for the purpose of an arsenal. In the legislative act of consent, a reservation as to the service of state process was made similar to that contained in the Ohio act of consent and cession heretofore referred to. It was held, "that the territory on which the offense charged is agreed to have been committed is the territory of the United States, over which the VOL. II.-51.

Sinks v. Reese.

congress have the exclusive power of legislation. The assent of the commonwealth to the purchase of this territory by the United States had this condition annexed to it: that civil and criminal process might be served therein by the officers of the commonwealth. This condition was made with a view to prevent the territory from becomi ing a sanctuary for debtors and criminals; and from the subsequent assent of the United States to the said condition, evidenced by then making the purchase, it results that the officers of the commonwealth, in executing such process, act under the authority of the United States. No offenses committed within that territory are committed against the laws of this commonwealth; nor can such offenses be punishable by the courts of the commonwealth, unless the congress of the United States should give to the said courts jurisdiction thereof.

"As a consequence of these positions, it is the opinion of the court that they have no cognizance of the offenses charged in this indictment, and that the defendant must be discharged.

"An objection occurred to the minds of some members of the court, that if the laws of the commonwealth have no force within this territory, the inhabitants thereof cannot exercise any civil or political privileges, under the laws of Massachusetts, within the town of Springfield. We are agreed that such consequence neces sarily follows; and we think that no hardship is thereby imposed on those inhabitants; because they are not interested in any elections made within the state, nor held to pay any taxes imposed by its authority, nor bound by any of its laws. And it might be very inconvenient to the United States to have their laborers, artificers, officers, and other persons employed in their service, subjected to the services required by the commonwealth of the inhabitants of the several towns.

"It will be noticed that in this decision we make a distinction between persons who actually dwell within the territory owned by the United States, and the laborers and artificers employed therein, who have their dwelling elsewhere."

Story, in his commentaries on the Constitution, treating of this subject (§ 1227), says: "That the states cannot take cognizance of any acts done in the ceded places after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of the state, and can no longer exercise any civil or political rights under the laws of the state." But it is needless to multiply quotations.

Sinks v. Reese.

Suffice it to say, that to the same general effect is the opinion of Chancellor Kent. 1 Com., marginal paging 429, 430, 431; and United States v. Davis, 5 Mason, 356; Same v. Cornell, 2 id. 60; 1 Met. 580; Mitchell v. Tibbitts, 17 Pick. 298.

As for the concluding proviso of the first section of the Ohio act of cession, hereinbefore quoted, and the provision substituted therefor in the first section of the act amendatory thereof (65 O. L. 208), it is unnecessary for us to consider and determine their proper construction and meaning, for the reason that it is not constitutionally competent for the general assembly to confer the elective franchise upon persons whose legal status is fixed as non-residents of the

state.

We are of opinion, therefore, that the court below did not err in rejecting as illegal the votes cast by resident inmates of the national asylum for Sinks, and that it did err in refusing to reject as illegal the eight votes of Adams, Combs, Bankhead, Ott, Forde, Gray, Lewerdy and Walkins, resident inmates of said asylum, cast for Reese.

The next point on which we are of opinion that the court below erred in its ruling arises in this way: The contestor offered in evidence at the trial the depositions of himself and of sundry other witnesses, to the effect that he and they, after the election, had examined the poll-book and tally-sheet made and kept at the election in the sixth ward of the city of Dayton, and had counted the ballots cast at the election in that ward, and that they had found an error in the count and return of the votes in that ward of fifteen in favor of Sinks and against Reese. Neither poll-book, tally-sheets nor ballots were attached to or accompanied the depositions, nor was there any evidence given or offered to show any reason why these were not or could not be produced. The plaintiff in error objected to the competency of the depositions as evidence, on the ground that the evidence offered was secondary in its nature, and not the primary and best evidence of which the case admitted. The court overruled the objection, and admitted the depositions in evidence, and the plaintiff in error excepted.

We are unable to find any good reason why the general rule, that the best evidence of which the case in its nature is susceptible ought to be adduced, unless good cause is shown why it is not done, should have been departed from in this case. The depositions admitted in evidence show that the poll-book, tally-sheets and ballots of the

Sinks v. Reese.

sixth ward were readily accessible, and might have been attached to a deposition and exhibited to the court. The official return of the votes cast in the ward was made by three judges of the election under their official oaths. Then come the depositions of the contestor himself, and three other witnesses selected by himself, testifying to a mistake of fifteen made in the count. The case illustrates the wisdom of the rule. It would have been far more satisfactory to have had the tally-sheet, poll-book and ballots themselves to speak for themselves, both as to number and contents; and the inspection of these papers by the court itself would, we think, involve no such degree of inconvenience as to justify a relaxation of the rule. The application of this rule to the sixth ward, and other election precincts in respect to which the same question was made, and the error of the court below in counting eight votes cast for Reese by inmates of the asylum, disposes of a sufficient number of votes for Reese to change the result arrived at by that court, and compels a reversal of its finding.

We are furthermore of the opinion that the court below erred in counting for the contestor the vote of one Wortz, whom the testimony clearly shows, we think, to be an idiot; and also in refusing to count the vote of an old gentleman of the name of Davidson, who is not shown by the evidence to be either a lunatic or an idiot, but simply a man whose mind is greatly enfeebled by age. This is not a legal disqualification; and the reverence which is due to "the hoary head" ought to have left his vote uncontested.

As to many other points made by the plaintiff in error, and not herein above referred to, we content ourselves with saying that we find no substantial error prejudicial to the plaintiff in error in the rulings of the court below.

Finding of the court of common pleas reversed, and case remanded for new trial.

Walker v. Stetson.

WALKER, plaintiff in error, v. STETSON.

(19 Ohio St. 400.)

Bill of exchange-presentment for acceptance, when not necessary

W. drew a bill of exchange on G., made payable to his own order on a day certain at the Ocean Bank, New York. At maturity the bill was presented at the bank for payment, and duly protested for non-payment. G. was in funds at the time, and would have paid the bill had he known of its exist ence, but he afterward became insolvent. In an action by the indorser against the drawer, held, that the holder of the bill was not bound to present it to the drawee for acceptance; that it was the duty of the drawer to have notified the drawee of the bill, and that presentment at the bank was sufficient to charge the antecedent parties.

STETSON sued Walker in the court of common pleas of Cuyahoga county, in January, 1857, on two bills of exchange, which Stetson alleged he had been compelled to pay and take up. as the acommodation indorser of Walker.

The case was taken to the district court by appeal.

The bills were both drawn at Cleveland, in this state, by Walker payable to his own order, at the Ocean Bank in the city of New York, three months after their respective dates, and were addressed "To John T. Gleason, Esqr., No. 115 Chambers street, New York." The bills were indorsed by Walker and by Stetson, and discounted by Mygatt & Brown, as Stetson alleged, for the sole benefit of Walker.

The bills as they respectively matured were presented at the Ocean Bank and payment demanded, which was refused; but neither of them was presented to the drawee for acceptance, nor was he notified by the holders, Mygatt & Brown, or otherwise, of the existence of the bills, or of their presentment at the bank for payment. The bills were duly protested for non-payment.

On the trial in the district court, Walker, the defendant, asked the court to instruct the jury, "that, to entitle Stetson to recover, the jury must find that the bills of exchange were presented either personally, or at 115 Chambers street, to Mr. Gleason, the drawee, for acceptance; and that presentment of them at the Ocean Bank for payment on the day of their maturity, would not be, in law, a sufficient presentment for acceptance."