State ex rel. Freeman v. Scheve

Ames, C.

Section 4 of article 1 of the constitution of this state is as follows: “All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their OAvn consciences. No person shall be compelled to attend, erect or support, any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted.” Section 11 of article 8 of the constitution reads as follows: “No sectarian instruction shall be allowed in any school or institution supported, in whole or in part, by the public funds set apart for educational purposes.” Daniel Freeman is a resident taxpayer and a patron of the public school in school district No. 21 in Gage county. He applied for and obtained an alternative writ of mandamus running to the school board of said district, alleging that against his protest and in disregard of his objections and in opposition to his demands, the board permitted a teacher employed by them in said school to engage daily, in school hours, in the public school building in said district, and in the presence of the pupils, in certain religious and sectarian exercises, consisting of the' reading of passages of her own selection from a book commonly known as King James’s version or translation of the Bible, and in singing certain religious and sectarian songs, and in offering prayer to the Deity according to the customs and usages of the so-called orthodox evangelical churches of this country, and in accordance with the belief and practices of such churches, the pupils joining in the singing of such songs or hymns. The return to the writ admitted the foregoing recited facts, except that it denied that the exercises complained of were sectarian; but the teacher, who was produced as a witness, admitted that she regarded them as constituting a religious worship, and that she conducted them solely for that reason. That they are correctly so described there can be no doubt. Protestant sects who maintain, as a part of their ritual and discipline, stated weekly meetings, in which the exercises consist largely of prayers and songs and the reading or repetition of Scriptural passages would, no doubt, vehemently dissent from the proposition that such exercises are not devotional, or not in an exalted degree worshipful, or not intended for religious edification or instruction. That they possess all these features is a fact of such universal and familiar knowledge that the courts will take judicial notice of it without formal proof. That such exercises are also sectarian in their character is not less free from doubt. For more than three centuries it has been the boast and exultation of the Protestants and a complaint and grievance of the Roman Catholics that the various translations of the Bible, especially of the New Testament, into the vernacular of different peoples, háve been the chief controversial weapons of the former, and the principal cause of the undoing of the latter. For the making of such translations Wyclif, Luther, Tyndale and others have been commended and glorified by one party, and denounced and anathematized by the other. Books containing such translations have been committed to the flames as heretical, and their translators, printers, publishers and distributers persecuted, imprisoned, tortured, and put to death for participating in their production and distribution. The several popular versions differ in some particulars from each other, and all differ from the Catholic canon, both in rendition of passages from Avhicli sectarian doctrines are derived by construction, and in the number of books or gospels, constituting Avbat is regarded as the Avritten record of Divine revelation. In addition to this, there are persons avIio are convinced, upon grounds satisfactory to them, that considerable parts of the Avritings accepted by all Protestant denominations are not authentic, Avhile devout HebreAvs maintain that the Ncav Testament itself is not entitled to a place in the true Bible. These diverse opinions have given rise to a great number of religious sects or denominations. To some of these sects the reading in public of any portion of any version of the Scriptures unaccompanied by authoritative comment or explanation, or the reading of it privately by persons not commissioned so to do by the church, is objectionable, and an offense to their religious feelings; to some, the utterance of public prayer, except recitations from Scripture, is a vain and wicked act; and to some, the songs and hymns of praise in AAdiich others engage are a stumbling-block and an offense.

We do not think it AAdse or necessary to prolong a discussion of what appears to us an almost self-evident fact, —that exercises such as are complained of by the relator in this case both constitute religious Avorship and are sectarian in their character, Avithin the meaning of the constitution. Nor do Ave feel inclined to make Avhat might be looked upon as a spurious exhibition of learning by quoting at length from the many judicial decisions and utterances of eminent men in this country concerning the subject. Perhaps the case most nearly in point, because of similarity both of facts involved -and of constitutional enactments construed to those in the case at bar, is State v. District Board, 76 Wis., 177, 44 N. W. Rep., 967. There are three separate and concurring opinions in this case by three of the eminent judges of that court. The discussion includes a thorough review of both the legal principles involved, and of the historical aspects of the controversy, and, for the most part, and in essential particulars, voices our own views. We think it, therefore, sufficient for our purpose to direct attention to that authority.

But there is another matter deserving of consideration in this connection. Secular education of children within prescribed ages is, by a statute of this state, made compulsory. Punctuality and regularity of attendance at the time fixed for the beginning of and throughout the daily sessions of a district school are of first importance, both as measures of discipline and for the development of a trait, or the formation of a habit, of extreme importance to the students in after-life. Yery justly, and almost, if not quite, necessarily, pupils are required to conform to these regulations, or incur the penalty of loss of rank in deportment and scholarship. Unless opinions of universal acceptance in this country since the foundation of our government are at fault, it is a policy of the highest importance that the public schools should he the principal instruments and sources of popular education, because they qxert, more than any other institution, an influence pro-motive of homogeneity among a citizenship drawn from all quarters of'the globe. But if the system of compulsory education is persevered in, and religious worship or sectarian instruction in the public schools is at the same time permitted, parents will be compelled, to exposé their cliil•dren to what they deem spiritual contamination, or else, \¡ while bearing their share of the burden for the support of public education, provide the means from their own pockets for the training of their offspring elsewhere. It might he reasonably apprehended that such a practice, besides being unjust and oppressive t§ the person immediately concerned, would, by its tendency to the multiplication of parochial and sectarian schools, tend forcibly to the destruction of one of the most important, if not indispensable, foundation stones of our form of government. It will be an evil day when anything happens to lower the public schools in popular esteem, or to discourage attendance upon them by children of any class.

The district court, without consideration of the merits of the controversy, adjudged a dismissal of the suit upon the ground that the practices complained of were so far within the discretion of the district hoard as not to be subject to control by mandamus. In that opinion we were— or at least the writer was — at first inclined to concur. More mature reflection has, however, convinced us that this view is erroneous. The administration of the public funds for educational purposes is entrusted solely to these boards, and the nature of their office, we think, especially enjoins upon them the duty of seeing to it that the constitutional prohibition is observed.

It may be unnecessary fo remark that neither the writer nor the court is intended to be committed to any view of any of the matters of theological or exegetical controversy touched upon in the foregoing discussion. All that is intended to be said is that such matters, being the subjects of sectarian differences, are excluded by the express words of the constitution from being taught, or in any degree countenanced, in educational institutions maintained to any extent by the public funds. It is the function of the court to expound, not religious creeds or writings, but the constitution and laws of the state. We are of opinion that the return does not state facts sufficient to constitute a defense to the alternative writ, and it is recommended that the judgment of the district court be reversed, and that a peremptory writ as prayed issue from this court to the respondents and their successors in office.

Dtjeeie and Albert, CC., concur.-

By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and that a peremptory writ as prayed issue from this court to the respondents and their successors in office.

Reversed.