(dissenting). I entertain no doubt that the proposed amendment is in conflict with the 14th Amendment to the Constitution of the United States, which provides:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
By this amendment to the Federal Constitution the States of the Union did not surrender their police power; that was still retained by the State; but in my judgment this proposed amendment is beyond the police power thus reserved. While a hard and fast definition of the police power, inclusive and exclusive, has not been generally attempted by the courts, it is universally understood and held that the measure sought to be sustained under the police power must bear some reasonable relation, at least in some degree, to the public good, or the public health, or the public morals, or the public safety, or the public welfare. If it bears no such relation it is beyond such power, and if it abridges the privileges or immunities of the citizen or deprives him of life, liberty or property without due process of law it must fall before the superior mandate of the Federal Constitution whether it be a State statute or a provision of a State Constitution.
While the proposed amendment is very carefully worded to attract votes, it takes from the parents the *44privilege of educating their children in parochial or private schools; indeed, it takes from them the right to exercise any control over the education of their own offspring and gives such right to the State. It prohibits the conduct of the business of educating children by private parties, denominations and corporations organized for that purpose under our laws, and takes from them without compensation the right to use for educational purposes property owned by them and devoted to that use admitted to be worth seventy millions of dollars.
Some 120,000 children between the ages of 5 and 16 years are now being educated in the parochial schools of the State. The instructions cover the usual branches taught in the public schools and in addition there is moral training and the doctrine of the Christian religion is inculcated in these youthful minds. That these schools may be regulated by the State is admitted on all hands, but that their existence may be prohibited by State mandate is an entirely different proposition. Before the business of educating the young in the same courses taught by the public schools, before the business of educating the young in the Christian religion, before the business of conducting these parochial schools can be outlawed and prohibited, their prohibition must bear some reasonable relation to the public good, or the public health, or the public morals, or the public safety, or the public welfare. The right to regulate I concede; the right to prohibit I deny. That the right of the State to regulate a business under its police power does not carry with it the right to destroy, the right to prohibit, is illustrated by two cases decided by the court of last resort of the Nation. The first of these cases arose in this State. By Act No. 301, Public Acts 1913, the State regulated the business of conducting an employment agency. Its validity was sustained by this court in People v. Brazee, 183 *45Midi. 259. That case was reviewed in the Supreme Court of the United States in Brazee v. Michigan, 241 U. S. 340 (36 Sup. Ct. 561), and the right of the State to regulate the business was upheld. But in the later case of Adams v. Tanner, 244 U. S. 590 (37 Sup. Ct. 662, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973), that court had before it a statute of the State of Washington which was so worded as to prohibit the carrying on of the business of an employment agency and the right to prohibit such business was denied. I quote the syllabus:
“The business of securing honest work for the unemployed in return for an agreed consideration is a useful and legitimate business which, though subject to regulation under the State police power, cannot be forbidden by an act of a State without violating the guaranty of liberty secured by the 14th Amendment.”
Mr. Justice McReynolds, who wrote the prevailing opinion, said: ■
“Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is; not enough to justify destruction of one’s right to follow a distinctly useful calling in an upright way. Certainly, there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can. be found quite ready earnestly to maintain that its suppression would be in the public interest. Skilfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.”
Chief Justice Baker of the court of last resort of Kentucky so clearly and forcefully demonstrates that such arbitrary power as is here sought to be conferred upon and exercised by the State through this proposed *46amendment is beyond the police power reserved in the State that I quote quite liberally from what was said by him speaking for the court in Columbia Trust Co. v. Lincoln Institute, 138 Ky. 804 (129 S. W. 113, 29 L. R. A. [N. S.] 53), where the right of the State to prohibit the business of conducting a private school was involved and where such right of the State was denied. He said:
“If the teaching of the young to be useful, upright, Christian citizens is not inimical to the public safety, public morals, or the public health, then it must follow that an act whch seeks either to prohibit it altogether, or to authorize others to prohibit it, must be invalid. It is difficult to find language to make plainer that which is so obvious as is the proposition before us. The purposes of the institution under discussion include the whole circle of the solid virtues with which youth may be endowed. Undoubtedly, it is a substantial good to educate the youth of the State; and such is the declared policy of the Constitution. Section 183 provides: ‘The general assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.’ It cannot, then, be in any way injurious to the public to aid in forwarding the great educational policy which the people themselves have declared in their fundamental law, — the giving of every young man and woman in the commonwealth a sound education. And when academic education is supplemented by religious training and special instruction in the agricultural and mechanical arts and sciences, it seems to us. that it is contrary to the most obvious public policy that an institution which .affords such an education should be in any way blocked or impeded. What good reason can be given for prohibiting the exercise of such a charity as that which we have under discussion, unless it can be shown that education, supplemented by religious training, may be in some way an evil to society? Does not the mind of every virtuous and right-thinking person at once admit that the contrary is true? Do we not know that religious educational training has a tendency to make men more industrious, more virtuous and better, gen*47erally, morally and physically? In other words, better, wiser, and more useful citizens. What would be thought of an act which prohibited the farmer from cultivating a piece of land of greater extent than 75 acres, without the permission of his neighbors? By what argument could an act be supported which prohibited a manufacturer from.working more than a given number of artisans? And yet it is seriously contended that a school which seeks to make religious, upright, educated citizens may be prevented under the police power of the State as a public nuisance.
“Education strengthens the mind, purifies the heart, and widens the horizon of thought. It magnifies the domain of hope, multiplies the chances of success in life, and opens wide the door of opportunity to the poor as well as to the rich. It makes men better husbands, better fathers, and better citizens.”
Should this court by the extraordinary writ of mandamus compel the secretary of State to submit this amendment notwithstanding its invalidity? I think not. Courts do not do idle .things and the writ, of mandamus is a discretionary writ as the universal holdings of this court demonstrate. Not only- must there be a clear legal duty upon the part of the defendant but there must also be a clear legal right in the plaintiff to have that duty discharged. Auditor General v. County Treasurer, 73 Mich. 28; Webster v. Newell, 66 Mich. 503; Taylor v. Isabella Circuit Judge, 209 Mich. 97. Has the plaintiff a clear legal right to have submitted to the electorate of the State an amendment to the State Constitution which is in conflict with the supreme law of the land — the Constitution of the United States? Has he the clear legal right by this discretionary writ to compel the secretary of State to perform certain acts, every one of which is a nullity, with a result that is but “sounding brass and tinkling cymbals?” I think to ask these questions is to answer them. But the question is not without authority in this State. In Maynard v. Board of Can*48vassers, 84 Mich. 228 (11 L. R. A. 332), the plaintiff had under the cumulative voting* system provided for by an act of the legislature received more votes than, any of the other candidates for the office of member of the legislature. Manifestly the defendant was a ministerial body, not clothed with the judicial power of determining the validity of the act. This court there said, speaking through Chief Justice Champlin :
“While we adhere to the doctrine laid down in several of our previous decisions, that the duty of a canvassing board is purely ministerial, yet, feeling as we do, that the law is unconstitutional, under which the relator claims to have been elected, we should stultify ourselves to command even a ministerial board to observe it. * * * We have also a precedent from Ohio, where the duty of a canvassing board is ministerial, but who refused a certificate of election to an office claimed to be vacant, but which they deemed not vacant. The supreme court held that although the duties of the canvassing board were ministerial, and they had no right to consider the question of vacancy, yet the court would consider it and not compel the performance of an act that was useless.” State v. McGregor, 44 Ohio St. 628 (10 N. E. 66).
The recent case of Decher v. Secretary of State, 209 Mich. 565, followed parallel lines with the instant case, and I think in its underlying principle is controlling here upon the question now being considered. In proper form and in sufficient number of signers petitions were filed with the secretary of State asking a referendum to the electorate on the legislative action adopting the 18th Amendment to the Federal Constitution. Upon the advice of the attorney general that such referendum would be invalid under both the Federal and State Constitutions, the secretary of State refused to submit the question to the people. This court not only on the ground that such action was in conflict with the provisions of our own Constitution, but also on the grounds that such action was in con*49flict with, the Federal Constitution, refused to compel the secretary of State to submit the question to the electorate. There, as here, the action of the electorate would be a nullity and we did not there postpone saying so. I see no reasonable distinction between that case and this one upon the question now being discussed. I cannot bring myself to feel that this court should by the discretionary writ of mandamus compel the secretary of State to submit this amendment to the people, thus, precipitating a bitter religious warfare in this Commonwealth in .which neighbor will be arrayed against neighbor, church against church, Protestants against Catholics; yes, Protestants against Protestants, and where the net result can be but a nullity.
The writ should be denied.
Brooke and Clark, JJ., concurred with Fellows, J.