State ex rel. Finger v. Weedman

BROWN, J.

I dissent. The only question in this case is whether or not the reading of any part of the Bible by a teacher in a public school in this state during the sessions of the school and in the presence of the pupils is in violation of the Constitution of the state. In the affidavit for the writ of mandamus applied for, it is said that affiant refuses to have his son agree “to attend upon any public school or place of instruction where he is obliged to listen to the reading’ of any part of the Bible.” The moving’ affidavit does not so much as mention the Lord’s Prayer. Reading of *386the Bible alone is made the subject of complaint; the Lord’s Prayer is not in issue, except as it may be a part of the so-called “King James version” of the Bible.

Concerning the difference between the Catholic and Protestant forms of the Lord’s Prayer appellant testified: “The only difference that I know of is in the words ‘For Thine is the kingdom, and the power and the glory, forever. Amen.’ That is the only difference that I know.” But there are two versions of the Lord’s Prayer in the King James version of the Bible, one in Matthew 6, 9-13, and the other in Luke 11, 2-4, and in Luke’s version, the sentence, “For Thine is the kingdom, and the power, and the glory,. forever. Amen,” is not to be found. There are likewise two versions in the Douay Bible, found in the same chapters and verses of the same Gospels, in one of which the phrase “supersubstantial bread” occurs, which gives rise to serious argument on the part of appe'lant’s counsel, who contend that this is widely different in meaning from the rendering in the King James version, where the term is “daily"bread.” The Author of the prayer Himself does not seem to have recognized any difference, because in the Douav version of the Bible, the only version recognized’ by the Catholic Church, in Matthew He uses the term “supersubstantial bread,” and in Luke Pie uses the term “daily bread.” It would seem, therefore, that Pie used the terms interchangeably, and that the claimed distinction over which counsel for appellant wrangle in such deadly earnest is, in reality, a distinction without a difference. In reality, can there be any difference? Does not bread, when used in a petition to God, include the Bread of Life, which is Christ Himself, the Supersubstantial Bread? To do appellant justice, he himself did not deem the difference here to be important enough to mention it in his testimony. It remained for his counsel in the argument to seize upon this phrase, and magnify it into a matter of vital importance for their contention on the appeal.

As we have said, neither in the moving papers nor in the answer, nor in any evidence offered on the trial, is there the slightest intimation of what was read from- the Bible. The answer saj's that either a passage fronrthe Bible was read or the Lord’s Prayer was repeated. That, and nothing more, is the record before this court as to what was done, which is alleged to be in violation of the Constitution of the state. No word or sentence is specified or men*387tioned which is claimed to 'be a stumbling stone or rock of offense to either appellant or his son. Appellant simply refuses to let his son attend any school where any part of the King James version of the Bible is read. The only question before us is, therefore, this: Does the reading of any part of the so-called King James version of the Bible by a teacher in a public school in South Dakota, as a part of the school program or exercises, violate any of the provisions of the state Constitution?

The only provisions of the Constitution brought to our attention, which are said to be or can be transgressed by reading- any part of the Bible, are contained in article 6, § 3, and article 8, § 16, which read as follows :

Article 6, § 3 :

(a)“The right to worship God according to- the dictates of conscience shall never be infringed.”

(■b) “No person shall be denied any civil or political right, privilege or position on account of-his religious opinions.”

(c) “No person shall be compelled to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious establishment or mode of -worship.”

(>d) “No money or property of the State shall be given or appropriated for the benefit of any sectarian or religious society or institution.”

Appellant disavows any reliance on paragraph (d).

Article 8, § 16:

(a) “No appropriation * * to aid any sectarian school shall ever be made,” etc.; nor

(b) “Shall the state or any count}- or municipality * * * accept any gift or grant to 'be used for sectarian purposes;” and

(c) “No sectarian instruction shall be allowed in any school or institution aided or supported by the state.”

It is a fundamental rule of statutory construction that words must be held to have been used by the Legislature in their popular and generally accepted sense. Sutherland on 'Statutory Construction, pp. 246-248; Maxwell on Interpretation of Statutes, p. 88; State v. One Pontiac Coach Automobile (S. D.) 224 N. W. 176. The same rule is applicable in construing the language of constitutions. “In the main, the general principles governing the construe*388tion of statutes apply also to the construing of constitutions.” 12 C. J. 699; Davenport v. Elrod, 20 S. D. 567, 107 N. W. 883; State v. Boyden, 21 S. D. 6, 108 N. W. 897, 15 Ann. Cas. 1122. “The fundamental purpose in construing- a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it.” 12 C. J. 700.

In incorporating the above-quoted provisions in our Constitution, what was the intent of the framers of the Constitution and of the people who adopted it? It may be observed that our Constitution was adopted before any of the decisions relied upon in the opinion of the majority were pronounced; therefore those decisions can give but little help in determining what was the intention of the framers of our Constitution, or of the people who adopted it, in using the language of the provisions quoted. Decisions which had been published before the framing of the Constitution, and which were presumably known to its framers, may throw some light on their intent. Likewise the actual practice of those engaged in framing the Constitution may be helpful in ascertaining the meaning they attached to the language they used.

Nearly five years prior to the adoption of our Constitution the Supreme Court of the neighboring state of Iowa, in the case of Moore v. Monroe, 64 Iowa, 367, 20 N. W. 475, 52 Am. Rep. 444, had decided that the reading of the Bible in the schools did not contravene provisions of the Constitution of that state substantially similar to our own. Similar decisions had been made by the courts of other states, and we are cited to no decision prior to the adoption of our Constitution holding that provisions like those we have quoted were violated -by a statute authorizing the reading of the Bible in the public schools. The convention that framed the Constitution had in its membership some of the ablest lawyers then in South Dakota, among them two who had been judges of the Supreme Court of the territory, and two others who became members of the Supreme Court of the state upon its admission to the Union. It may be presumed they knew of the decision in Moore v. Monroe, supra.

That the reading of the Bible in public schools or other institutions supported by the public was not considered by the framers of our 'Constitution either to infringe upon the right to worship God according to the dictates of conscience or to constitute a denial *389of any political right, privilege, or position, or to transform the ■building in which it was read into a plaóe or worship, or to be in violation of "the broad ground of religious liberty,” or of any other provision of the Constitution, seems apparent from a consideration of the legislation of the territory of Dakota and of the proceedings had in the convention which adopted the Constitution. In Laws Dak. Ter. 1862-63 (2d Sess.) c. 33, § 9, we find the keeper of each prison in the state required to provide at the expense of the county, for each prisoner under his charge, a copy of the Bible or New Testament. This section was re-enacted verbatim in the Rev. Codes 1877, as section 635, Code Cr. Proc. It was again reenacted in the Compiled' Laws of 1887 as section 7809. After the adoption of the Constitution it was re-enacted once more as section 741 of the Code of Criminal Procedure in the Revised Codes of 1903, and Rev. Code 1919, § 10195, provides that among the rules that may be adopted by the board of charities and corrections for the government of jails is the supplying of each prisoner with a Bible.

Laws 1883, c. 44, § 91, provided that the Bible shall not be excluded from any public school nor be deemed a sectarian book, and that it might be read in school without sectarian comment not exceeding 10 minutes daily. Laws 1887, c. 47, § 19, reads: “No sectarian doctrine shall be taught in any public school; but the Bi'ble may be read in school not to exceed ten minutes daily, without sectarian comment; and no pupil shall be required to read it contrary to the wishes of his parent or guardian, or other person having him in charge.” This was carried verbatim into the Compiled Laws of 1887 as section 1706, and has 'been substantially reenacted in all revisions of the Code since the adoption of the Constitution.

An examination of the proceedings of the constitutional convention at the time of the adoption of the Constitution in 1889 revea's that every session at which any business was done was commenced by prayer, and that on approximately one-half of the occasions the prayer was offered by some member of the convention. In view of the trend of judicial decision prior to the adoption of the Constitution, of the legislative history of the territory prior to and of the state since its adoption, and of the practice of the constitutional convention itself during the proceedings resulting in its *390adoption, I cannot 'believe that the framers of the Constitution used the language in the parts1 of the Constitution hereinbefore quoted with any intention whatever to thereby prohibit the reading of the Bible in the public schools, or in any other public institution of the state, or that they had any thought that any such construction would ever be attempted to be placed on such language.

I do not agree with the majority thesis that readings -from the Bible cannot be used as a text-book of morals, that such use of the Bible in school is “necessarily devotional,” nor do I believe that the “Bible is hardly adaptable for use in secular instruction without comment and analysis..” It should be observed that comment and analysis are not forbidden, but only sectarian comment. Yet I find much in the Bible that is well adapted for use in secular instruction, without any comment or anlysis whatever. I read in the King James version, “Thou shalt not steal.” No comment or analysis is necessary in order to impress the lesson of the sentence upon any person who knows the meaning of the words. Again, “My son, if sinners entice thee, consent thou not.” “Happy is the man that findeth wisdom and the man that getteth understanding.” Comment or analysis is unnecessary here. “If thou meetest thine enemy’s ox or his ass going astray, thou shalt surely bring it back to him again.” What comment or analysis is necessary to impress this duty? Is comment or analysis needed to elucidate the counsel of Peter, “Add to your faith virtue, and to virtue, knowledge; and to knowledge, temperance; and to temperance, patience.” The stoiy of the prodigal son needs no comment or analysis to make it plainer than it is, nor does the thirteenth chapter of First Corinthians stand in need of comment or analysis to make it valuable for secular instruction.

Appellant’s position before this court is that the Constitution of the state forbids any of these portions of Scripture to be read in school in the hearing of the pupils. There is nothing in the record in this case showing that any portion of the Bible was read that stood in need of any comment or analysis. Appellant’s son was not required to read, nor was he required to assume any attitude characteristic of devotion while the teacher read. All that was required of him was that he would deport himself during that part of the school program in the same decorous and respectful manner that he ought to during any other part of it.

*391The majority opinion quotes what it calls an apt passage from appellant’s brief, wherein occurs the sentence: “King Tear may be commented upon at will, but the Book of Job, the first great drama, with its thundering passages, must be read unexplained.” The aptness is not apparent to me. The quoted passage seems to me as sounding brass or a tinkling cymbal. It is at once deflated by the observation that comment on the Scriptures is not forbidden; it is only sectarian comment that is inhibited. I suppose the school board might, if it chose, permit the reading of King Téar and at the same time prohibit propaganda by the teachers to the effect that Bacon was the author of the play.

Appellant’s counsel contend that, because different Christian sects wrangle over the significance of particular verses or texts in the Bible, those portions of the Bible must be sectarian, and that, if any part of the Bible is sectarian, the whole must be. They say: “It has been suggested that the reading of the Bible is not sectarian, because it is not certain that passages will be selected to be read which are in any degree objectionable to any sect. In other words, the constitutional validity is made to depend on the fortuitous contingency that the teacher may at all times select passages upon which all sects agree.” And they proceed to characterize the suggestion as “mere sophistry.” But the right of any one to question the constitutional validity of a statute always depends on the fortuitous contingency that what is done or threatened under the statute affects him injuriously. 12 C. J. 762. If nothing sectarian is read, and no sectarian comment is made, appellant is not affected injuriously, in contravention of any provision of the Constitution. A whole volume is not necessarily objectionable because a few sentences may be selected therefrom that are. Must Pdrtia’s homily on the quality of mercy be excluded from the public schools, because the book in which it is bound contains also the soliloquy of Falstaff, at the reading of which in public even the depraved might blush ?

Many things are advanced as axioms in the majority opinion that are not self-evident to me. The statement that the Bible “is hardly adaptable for use in secular instruction without comment and analysis” is at variance with the personal experience of an elder generation, many of whom attended schools in childhood where portions of the Bible were selected for reading lessons, and were *392read 'by the pupils without comment or analysis from the teacher. But now we learn that such reading' coul-d not well be without comment, that it is necessarily devotional “and would be worse than useless otherwise.” Some of us must have come under the curse.

The Supreme Court of Maine is criticized in the majority opinion for placing' a decision sustaining the practice of Bible reading in school on the ground that it was claimed to be used as a text-book for reading, and the majority opinion says: “This seems a far-fetched excuse, when it is considered that only such pupils as were able to read it were required to participate in the reading. Text-books for reading are usually used by those who need to acquire the art.” I had thought text-books for reading- were for those who had acquired the art, but desired to attain proficiency in the art, and to learn something of what the text-books were designed to teach. Are swimming' pools only for those who cannot swim, who need to acquire the art?

That appropriate passages from the Bible may be used in secular education is supported by no less an authority than Prof. Huxley, who was neither a Catholic nor a Protestant. When in 1870 lie was a candidate for a place on the London school board, which had the duty of administering the Education Act of that period, which provided, “No religious catechism or religious formulary which is distinctive of any particular denomination shall be taught in the schools,” he said regarding the reading of the Bible in the schools: “Even if the reading of the Bible were not, as I think it is, consonant with political reason and justice, and with a desire to act in the spirit of the education measure, I am disposed to think it might still be well to- read that book in the elementary schools. I have always been strongly in favor of secular education, in the sense of education without theology; but I must confess I have been no less seriously perplexed to know by what practical measures the religious feeling, which is the essential basis of conduct, was to- be kept up, in the present utterly chaotic state of opinion on these matters, without the use of the Bible. The pagan moralists -lack life and color, and even the noble Stoic, Marcus Antonius, is too high and refined to an ordinary child. Take the Bible as a whole; make the severest deductions which fair criticism can dictate for shortcomings and positive errors; eliminate, as a sensible lay teacher would do, if left to himself, all that it is not *393desirable for children to occupy themselves with; and there still remains in this old literature a vast residium of moral beauty and grandeur. And then consider the great historical fact that, for three centuries, this book has been woven into the life of all that is best and noblest in English history; that it has become the national epic of Britain, and is as familiar to noble and simple, from John-o’-Groat’s House to Land’s End, as Dante and TassO' once were to the Italians; that it is written in the noblest and purest English; and abounds in exquisite beauties of mere literary form; and, finally, that it forbids the veriest hind who never left his village to 'be ignorant of the existence of other countries and other civilizations, and of a great past, stretching back to the farthest limits of the oldest nations of the world. By the study of what other book could children be so much humanized and made to feel that each figure in that vast historical procession fills, like themselves, but a momentary space in the interval between two eternities; and earns the blessings or the curses of all time, according to its efforts to do good and hate evil, even as they also are earning their payment for their work?”

I think that, after the lapse of nearly 60 years, Prof. Huxley’s argument is not only sound today, but is even more pertinent to present conditions than to those existing when he made it. And classic American literature no less than English literature is so interwoven with the Bible that those ignorant of that book must in a measure be unable to grasp or appreciate the beauty and nobility of the best literature of their own countoy.

But the majority say that nothing should be done in the public schools that would develop the religious feeling. They say: “iVbout as far as we can go in that field in the public schools without objection is to teach that there is an All-Wise Creator, to whom we owe love, reverence, and obedience, leaving to the churches other religious instruction.” Darrow and his followers do not believe that there is an All-Wise Creator to whom we owe love, reverence, and obedience. Shall that much be permitted in public schools which they are taxed to support, and where their children have a right to gO' and be educated?

After devoting the main part of the opinion to a discussion of the sectarian element in the Bible, the majority seem to abandon the position that the reading of the Bible is sectarian teaching, and *394say: “We do not feel that the question of sectarian teaching is controlling, and do not decide that feature, preferring to put our ■decision on the broader ground of religious liberty.” I cannot find anything in the record that brings up the question of religious liberty. If anything can be far-fetched, it is the contention that the record in this case shows that any one was compelled to1 worship in a manner contrary to the dictates of his conscience, or that any one was compelled to worship at all, or that religious liberty is in any wa3r denied to any party to the proceeding or to any one else.

While perhaps not very important, in the interest of accuracy it should be pointed out that the quotation ascribed to respondents in the majority opinion, where the burning of the bones of Wycliffe is referred to, is not, properly speaking what respondents say, but is what they quote, from “a writer in the New Age.”

State v. School Board, 76 Wis. 177, 44 N. W. 967, 7 L. R. A. 330, 20 Am St. Rep. 41, is referred to by the majority as a leading-case on the subject involved in the controversy. In that case it was said that the views of the court did not “banish from the distinct schools such text-books as are founded on the fundamental teachings of the Bible, or which contain extracts therefrom. Such teachings and extracts pervade and ornament our secular literature, and are important elements in its value and usefulness.” And in the majority opinion in the present case it is said that “in the study of literature, or other subjects, a quotation from the Bible may be useful in the study of the subject, but such quotation is incidental to the subject pursued, and its use is not devotional or religious.” In the language of the Psalmist, “Such knowledge is too wonderful -for me; it is high, I cannot attain unto it.” If the teachings of the Bible are offensive or objectionable when bound1 in the book called “The Bible,” I cannot see how they can be less offensive or objectionable when-bound as part of another book. It is the teaching- that is important, not the form in which it is bound. I suppose prussic acid swallowed from a golden goblet is just as poisonous as if swallowed from a common glass tumbler.

Webster’s Dictionary is full of quotations from the King James version of the Bible. Under the definition of “bread” occurs the quotation from Matthew vi, 11: “Give us this day our daily bread.” Suppose a teacher 'begins to read to his pupils article 6, § 3, the portion of the Bill of Rights around which this contro*395versy rages. As he finishes the sentence, “No person shall be compelled to attend or support any ministry or place of worship against his consent, * * *” a pupil asks, “Does the word ‘ministry’ mean the same thing as ‘place of worship’? Does ‘or’ signify that what follows is only an alternative expression of the meaning of the word that precedes it?” The teacher, according- to the majority opinion, is forbidden by the Constitution to read or comment on any portion of the Bible, but no judicial decision — so far — holds that it is unconstitutional for a teacher to expound the Constitution, so the teacher replies that: “ ‘Ministry’ does not mean the same thing as ‘place of worship,’ but it means the act of w-. No, let me see — it doesn’t mean the act of worship. It means — ah, hem, — maybe we had better turn to the dictionary and get the correct definition of what it means.” So he opens Webster’s and reads: “Ministry — see minister. The act of ministering; ministration.” Pursuing the investigation as directed, he seeks “minister.” Here he finds the word as a noun 'defined, among- other definitions, as “a subordinate, an agent, an instrument,” and illustrated by the following quotation: “Moses rose up, and his minister Joshua; Ex. xxiv, 13.” As a verb it is defined: “To act as a servant, attendant or agent; to attend and serve; to perform service in any office sacred or secular. ‘The Son of man came not to be ministered unto.’ Matt, xx, 28.” The definition is further illustrated thus, “Angels came and ministered unto Him. Matt, iv, 11,” and the definition contains the further reference, Matthew xxv, 44, without quotation, which the studious person, adult or child, will naturally refer to, and here he comes upon a whole verse: “Then shall they also- answer Him, saying, Lord, when saw we Thee an hungered or athirst, or a stranger, or naked, or sick, or in prison and did not minister unto thee?”

By this time, if the teacher has heard of the decision in this case, he realizes that he is getting into deep water. He is reading in school verses from the King James version of the Bible. In the very attempt to explain the Constitution he has infringed it. He should avoid reading such quotations from the dictionary. He-may tell the children to always stand up for the Constitution, and, if they do not understand parts of it, to utter the slogan of some professional politicians, “Back to the. Constitootion,” but not to consult the dictionary about it in the schoolroom, for there they *396will encounter quotations of verses and parts of verses from the King- James version of the Bible, and the very Constitution which they are studying forbids the reading of "any part” of that Bible in the public schools. Webster’s International 'Dictionary should be excluded -from the schools, if we are to be consistent. It may be read at home, or studied in the churches; but in the schools ?

The offer of the dedication to the original King- James version, which is said to be inimical to the Catholic religion and its Head, was properly excluded. That dedication is no part of the Bible, and so far as has come under my notice it is not commonly included in editions of the so-called King- James versions which are printed and published in the United States. Where the copy was procured, from which this dedication was said to be offered, does not appear, and there is certainly no proof in the record that it was a copy used in any of the schools of this state, much less in the school where appellant’s son was attending.

The arguments of counsel on both sides have taken a wide range, and much oratory has been expended on the claimed importance of alleged differences between certain passages in the Catholic and Protestant versions of the Bible, but not a single passage where any variation exists had been shown by the record in this case to have been read in this school.

I think the judgment of the trial court should be affirmed.