dissenting.
I concur in Justice Sloan’s dissent, because the act is indefinite as therein set out, and it also appears to me the act becomes more indefinite when it provides that violation of ORS 336.260 is a misdemeanor. ORS 336.990.
Does this mean, as indicated in the majority opinion, that the school board or the board of education, if it fails to enact a compulsory regulation governing excuses based upon such an application, is to be guilty of a criminal act, or does it apply to the teacher who refuses to excuse the child on application of the parent?
If the act could be considered as sufficiently certain in its application, I would still be unable to agree with the majority view that “may” must be interpreted as. “shall,” because in my opinion such construction, when considered in connection with the misdemeanor provisions of the act, would then make the act unconstitutional, for it seems to me the effect *136is that the state invokes. its criminal law powers to compel, under the guise of compulsory public school attendance, religious training and, as such, cannot but be violative of constitutional prohibitions.
The constitution of this state provides:
“The legislative assembly shall provide by law for the establishment of a uniform and general system of common schools.” Oregon Constitution, Art VIII, § 3.
It is thus clear that the primary and mandatory duty placed upon the legislature by the people is that it provide for the public education of its citizens, and, therefore, the legislature may not pass any mandatory act that may in anywise interfere with this primary objective.
There can be no question but that the moral fiber inculcated into the youth of this nation through religious education is of very great value in creating responsible citizenship, but the state is prohibited under the first amendment of the constitution from compelling religious instruction.
To interpret the act as “shall” instead of “may” seems to me to be in direct conflict with the powers of the legislature, because the mandatory “shall” places, if necessary, the requirement of honoring the religious excuse above the requirement to provide for a common school education.
There is undoubtedly the right of the parent to exercise parental control over the child, but I would have no doubt of the unconstitutionality of any act which would place in the hands of the parent the power of the state to require that the child be compelled to receive the religious instruction chosen by the parent.
*137In my opinion, when the law was first enacted, the legislature recognized this problem and made the matter discretionary with the school officials. Senate Bill No. 19 of the 1925 legislature, which was later enacted into law, carried this title:
“To authorise excusing children attending public schools to attend schools giving religious instruction.” (Italics supplied.)
No citation of authority is necessary for the proposition that in construing a statute the courts look to the title of the act as an aid in determining the intention of the legislature. The act states the child “may be” excused. The title shows that the legislature as a public policy is authorizing someone to grant a privilege that is thought to be denied under the compulsory attendance act. How can this court then say the act is not permissive, but is mandatory? The act, it seems to me, only grants to the school authorities the right to permit an absence which would be otherwise in violation of the state’s compulsory school attendance laws. If the act is so construed no constitutional difficulty is encountered.
The released time act can be considered under the established doctrine of separation of church and state only in the light that the religious education received away from the school premises while the school is required to be in operation and the child in attendance is an aid to the general education of the child. Therefore, the released time should be considered purely as a plan to supplement the child’s education, if such is feasible, in conjunction with the general education of the child. The act, so construed, permits the school authorities to grant the request of the parent so long as the request does not interfere with the orderly *138operation of the school or the general • educational requirements of the child, and if so construed is clearly constitutional, if definite and uniform in application.
I would affirm the decree of the trial court.
I am authorized to say that Justice Warner and Justice Sloan concur in this dissent.