State v. Bartels

Evans, C. J.

(dissenting). I. I am constrained to disagree with the majority opinion. The construction of our statute adopted therein is a very severe one. Under elementary rules, á criminal statute which creates an offense that is malum prohibitum should be construed strictly, in the sense that nothing shall be added to it by mere implication. The statutory prohibition under consideration here is contained in Section 1, *1075Chapter 198, Acts of the Thirty-eig’hth General Assembly, and is as follows:

“Section 1. That the medium of instruction in all secular subjects taught in all of the schools, public and private, within the state of Iowa, shall be the English language, and the use of any language other than English in secular subjects in said schools is hereby prohibited.”

The precise question presented in this case is whether the teaching of reading a foreign language in a private, religious school, for the purpose of enabling a child to worship in a common language with its parents and to take religious instruction therein, such as the reading of the catechism, etc., is a violation of this statute. As stated in the majority opinion, the evidence in this case was all contained in a written stipulation. It appears therefrom that the defendant was a teacher in a parochial school, belonging to a church or religious denomination, and that it was his duty, as such, to give instruction in secular subjects, and also in the tenets of the church, so as to prepare the children for confirmation in the church, according to its belief and practice, which confirmation was usually attained at‘about the age of 13. All secular subjects taught in such school were so taught in the medium of the English language, as required by the statute. Religious instruction was given in a foreign language : namely, the language of the parents of the children. The-prosecution is based upon the general proposition that the teaching of “reading” of any language is the teaching of a seoulwr subject. This is the implication which broadens this statute beyond the terms of any prohibition contained therein. I cannot assent to it. “Reading,” as a study, is simply a means of acquiring a language. It is language study. Reading, as an acquisition, as a thing learned, is a means of study of all subjects of every nature, whether they be called secular or religious. The majority opinion properly concedes that this prohibition does not restrict the right of parents, at home or through instructors in a private or parochial school, to worship according to their faith and religious belief, in whatever language they choose. This concession is clearly necessary, to save the constitutionality of the statute. Section 3, Article 1, of the Constitution of Iowa provides:

*1076“The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ’ ’

Obedient thereto, the peace officer has never invaded the sanctuary of any religious denomination in Iowa. It goes without saying that the free exercise of religion is impossible without the free use therein of such language as the worshipper may choose. Ordinarily, that language is his native language, or at least the language with which he is most familiar. There is no pretense in this statute at interference with that right. Ability to speak and to read a language is essential to intelligent worship. Concededly, the parents hád a right to worship in their own language. Necessarily, the children had a constitutional right to worship in the same language. Is the study of the language of worship to be deemed necessarily a secular subject? Is “reading” as a study or “reading”’ as an acquisition, where it is resorted to for the purposes of intelligent worship, to be deemed necessarily a secular subject, or may it also be deemed a religious subject?

By the terms of the written stipulation herein, the study or teaching of reading of the foreign language was only for the purpose of worship and religious instruction. We must not depart from that stipulation of facts. The one provision of the stipulation upon which the prosecution builds its argument is that the textbooks used in the study of “reading” were the ordinary textbooks used in all schools for that purpose, and that the subjects of the reading lessons were secular subjects. It is argued, therefore, that this fact made the study a secular subject. This implies that the student of the language is to be deemed to be studying the variety of subjects which appear in the reading lessons of the textbook. The implication thus indulged in is one which arises entirely outside of the statute under consideration. In my judgment, it is not a sound implication, as a matter of fact. Lessons for the teaching of “reading” must have subjects, in order to mean anything. These lessons are not selected for the subjects they contain, but for the adaptability of the words and sentences contained therein to the stage of progress of the learner in the study of the language. I think, therefore, that the subjects of the lessons of the text*1077book used in tbe study of “reading” do not fix the ebaraeter or the purpose of the study. I think it clear, also, that “reading,” as a study and as a necessary part of religious instruction, is not to be-deemed a secular subject, within the meaning of the prohibition of this statute.

We are' committed to the proposition that the motive or purpose of a given conduct is to be considered, in determining whether it be secular or religious. State v. Amana Society, 132 Iowa 304. The defendant in the cited ease was an incorporated body. Its membership consisted of a religious community. Their religious beliefs were carried into their practical, everyday life. They held all property in common; all members engaged in service; they owned lands and factories and merchandise and live stock into values of hundreds of thousands of dollars. The question involved in the suit against them was whether they were engaged in secular pursuits. We held that they were not, and that all their activities of everyday life, s-ueh as would ordinarily be deemed and would be, in fact, secular, were, nevertheless, the exercise of their religious beliefs, and that these activities were their response to their sense of religious daily duty. In another division hereof, I shall incorporate excerpts from the opinion in this case, as well as from other opinions.

Having held, in the cited case, that the operation by the Amana Society of its factories, mills, stores, and farms, all apparently done by the-ordinary methods of. business, was not a secular business, ’because its .dominant motive was religious, how shall we now say that the study of “reading” for the stipulated purpose of religious instruction and worship is secular, and not religious? To so hold is, in my judgment, to trench upon the constitutional provision which I have above quoted. The courts of this country in all jurisdictions have quite uniformly construed all penal statutes so as to exclude their operation from the religious domain, and so as to protect the absolute freedom guaranteed by the Constitution of religious belief and exercise. If there is any exception to this rule, it has arisen only in relation to extraordinary practices which disturb the public order or shock the sense of fundamental Christian morality; such, for instance, as polygamy. In the case of Church of the Holy Trinity v. United States, 143 U. S. 457 (36 L. Ed. *1078226), an analogous question was before the Supreme Court of the United. States, wherein that court construed a Federal statute which prohibited any person from paying' the transportation or in any way assisting the importation or migration of any alien into the United States under contract or agreement, express or implied, to perform labor or service of any kind in the United States. Trinity Church had entered into contract with a rector in England that he should come to New York and serve its parish there. Such action on the part of Trinity Church was within the literal terms of the prohibiting act. The Supreme Court, however, construed the act as not applying to the ease, notwithstanding "its all-inclusive terms, because to so construe it would be an interference with the religious freedom guaranteed by the Constitution, and because such an act was inherently innocent, and was, therefore, beyond the reach of a penal statute. For convenience of reference, excerpts from this opinion will be set out later.

An act similar to ours was enacted in Nebraska, and was construed by the Supreme Court of that state. It was construed as not prohibiting the teaching or studying of foreign languages for religious purposes, even though its language was broad enough to include such prohibition. Nebraska Dist. of Ev. Luth. Synod v. McKelvie, (Neb.) 175 N. W. 531. The argument of the court in that case was that the affirmative purpose of the legislation was to require the teaching of the English language and to make it the medium of secular instruction; and that, so long as such dominant purpose was carried out in the particular school, the additional study of foreign languages for religious purposes should not be deemed prohibited. It was also held that such prohibition would be an interference with religious freedom.

Instead of pursuing further mere argument of mine upon the question, I set forth in the following division excerpts from the cited cases, which, to my mind, constitute a quite sufficient argument. Let it be borne in mind that, in the instant case, the defendant met every affirmative requirement of the statute, and taught a full course of secular subjects suitable to the grades, and used the English language as the medium of all such teaching; and this includes the subject of “reading” in English. *1079When we reflect that tbe secular and tbe religious blend in every normal human life, in that tbe secular serves religion, and religion, if it be true, influences tbe secular, it must be true that the zone of division is a broad and indefinite one, and that a sharp and definite line of demarcation cannot be drawn. I only contend that the study of language, including its “reading,” may be religious, even though it be true that it may also be secular. If such study may be religious, then, under the stipulation of facts in this case, it was pursued for religious purposes. Even in the absence of such definite stipulation, I would think that the mere rule of strict construction of penal statutes would require us to adopt the more innocent construction.

II. In the case of. State v. Amana Society, 132 Iowa 304, the contention of the State was that this society, being organized solely as a religious society, was unlawfully and in violation '.of its charter rights engaged in business and manufacturing pursuits for financial gain. Quoting from the opinion (page 314):

“Theoretically, the distinctions pointed out may be correct. Practically, religion may not be so completely separated from the affairs of this life. Theology, the science of religion— that is, of formulating our thinking with respect to religion— has steadily insisted upon connecting religion with the life men lead and the things they do in this world. The great religious struggles of the past have come, in most cases, from the undertaking of men to impose on other men, not their religion, but thei-r science of religion; and against this, rather than religion) as defined by the attorney general, the law has interposed its shield of protection. When theologians formulate their conclusion that anything, such as a particular mode of life, is essential to the attainment of the promised benefits of a religion, it is not for the courts, by resorting to the definitions of lexicographers, to perform the ungracious, if not Herculean, task of determining whether this is so. The anticipated advantages of nearly every religion or creed are made dependent on the life its followers live, and the criticisms most often heard are that the exalted doctrines of righteousness professed are too frequently forgotten in the ordinary pursuits of life, and that the contests for wealth are waged with the rapacity of beasts of prey. Surely, a scheme of life designed to obviate such results, *1080and, by removing temptations and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion, when its devotees regard it as an essential tenet of their religious faith. In ascertaining whether various properties of the society are for religious purposes, these should be viewed somewhat from the standpoint of its members. From that viewpoint, its different enterprises are clearly within the rule stated by the attorney general, that this'must ‘be convenient and appropriate to religious work and ceremonies and to the worship of God according to their belief;’ for it is indispensable to their religious faith that they own their property in common and live a communal life. As a religious principle, they have agreed to this, and to devote their common labor to their common support. None can be said to derive any pecuniary benefit therefrom, in the sense in which that expression is used in the statute. No dividends are declared, and no money is given to any member, save to meet the bare necessities of the most economical existence. * * * On these considerations, we reach the conclusion that the defendant society has not exceeded its powers as a religious corporation. Secular pursuits, such as those conducted by it, axe not ordinarily to be regarded as incidental to the powers of a religious corporation, for the very good reason that, ordinarily, they bear no necessary relation to the creed it is organized to promote. But, where the ownership of property and the management of business enterprises in connection therewith are in pursuance of and in conformity with an essential article of religious faith, these cannot be held, in the absence of any evidence of injurious results, to be in excess of the powers conferred by the law upon corporations. We have discovered no decision touching the question decided; but, in view of the spirit of tolerance and liberality which has pervaded our institutions from the earliest times, we have not hesitated in giving the statute an interpretation such as is warranted by its language, and which shall avoid the persecution of any, and protect all in the free exercise of religious faith, regardless of what that faith may be. Under the blessings of free government, every citizen should be permitted to pursue that mode of life which is dictated by his own conscience; and *1081if this also be exacted by an essential dogma or doctrine of bis religion, a corporation organized to enable bim to meet tbe requirement of Ms faitb is a religious corporation, and as such may own property and carry on enterprises appropriate to tbe object of its creation.”

In the Trinity Church case, the Supreme Court of the United States said (p. 228) :

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. Thé reason of the law in such eases should prevail over its letter. * * * (p. 230) But beyond all of these matters, no purpose of action against religion can be imputed to any legislation, state, or nation, because this is a religious people. * * * (p. 231) Religion, morality, and knowledge, being necessary to good government, the preservation of liberty, and the happiness of mankind, schools, and the means of education, shall forever be encouraged in this state. * * * There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons; they are organic utterances; they speak the voice of the entire people. While, because of a general recognition of this truth, the question has seldom been presented to the courts, yet we find that in Updegraph v. Com., 11 Serg. & R. 394, 400, it was decided that ‘Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church, and tithes, and spiritual courts; but Christianity with liberty of conscience to all men. ’ * * * The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the legislature used general terms, with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the *1082duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute. ’ ’

In the cited case of Nebraska Dist. of Ev. Luth. Synod v. McKelvie, 175 N. W. 531, the Supreme Court of Nebraska said:

“The operation of the, selective draft law (Act May 18, 1917, C. 15, 40 Stat. 76 [U. S. Comp. St. 1918, Sections 2044a-2044k]) disclosed a condition in the body politic which theretofore had been appreciated to some extent, but the evil consequences of which had not been fully comprehended. It is a matter of general public information, of which the court is entitled to take judicial knowledge, that it was disclosed that thousands of men born in this country of foreign-language-speaking parents, and educated in schools taught in a foreign language, were unable to read, write, or speak the language of their country, or understand words of command given in English. It was also demonstrated that there were local foci of alien enemy sentiment, and that, where such instances occurred, the education given by private or parochial schools in that community was usually found to be that which had been given mainly in a foreign language. The purpose of the new legislation was to remedy this very apparent need, and, by amendment to the school laws, make it compulsory that every child in the state should receive its fundamental and primary education in the English language. *** That the same character of education should be had by all children, whether of foreign-born parents, or of native citizens. The ultimate object and end of the state in thus assuming control of the education of its pupils is the upbuilding of an intelligent American citizenship, familiar with the principles and ideals upon which this government was founded, to imbue the alien child with the tradition of our past, to give him the knowledge of the lives of Washington, Franklin, Adams, Lincoln, and other men who lived in accordance with such ideals, and to teach him love for his country, and hatred of dictatorship, whether by autocrats, by the proletariate, or by any man or class of men. * * * The state should control the education of its citizens far enough to see that it is given in the language of their country, and to insure that they understand the nature *1083of the government under which they live, and are competent to take part in it. Further than this, education should be left to the fullest freedom of the individual. * * * If a child has attended either the public or private school for the required time, it could not have been the intention of the legislature to bar its parents, either in person or through the medium of tutors or teachers employed, from teaching other studies as their wisdom might dictate. There can be no question of the cultural effect of the knowledge of a foreign language. * * ** If the law means that parents can teach foreign language, or private tutors employed by men of means may do so, but that poorer men may not employ teachers to give such instruction in a class or school, it would be an invasion of personal liberty, discriminative, and void, there being no reasonable basis of classification; but if such instruction can be given in addition to the regular course, and not so as to. interfere with it, then equality and uniformity results, and no one can complain.”

III. I do not discuss the question of constitutionality, because the majority opinion, in effect, concedes that, if the statute is an interference with religious liberty, it would be unconstitutional. There is no room for difference, therefore, between us at that point. I think that the construction put by the majority upon the statute is an interference with religious liberty. The majority hold otherwise, and that represents the point of difference between us, so far as the question of constitutionality is concerned. I would reverse.

WeaveR and Preston, JJ., join in this dissent.