State Ex Rel. Holcomb v. Armstrong

Hamley, J.

(dissenting) — Attendance at the University of Washington is not compulsory. I am therefore inclined to believe that the board of regents was not exercising the police power of the state in promulgating the regulation in question. It was simply the exercise of administrative power such as is vested in all public officers with respect to the use and occupancy of public property and the performance of official duties. If this be true, then the constitutional guarantees respecting the free exercise of religion are not directly involved. They are drawn into issue only where there is an element of compulsion. Hamilton v. Regents of University of California, 293 U. S. 245, 79 L. Ed. 343, 55 S. Ct. 197; West Virginia State Board of Education v. Barnette, 319 U. S. 624, 631, 87 L. Ed. 1628, 63 S. Ct. 1178.

Under this analysis there would still remain the question of whether the failure to except appellant from the requirement of an X-ray examination because of her religious beliefs was arbitrary and capricious. Where the acts of public officers are arbitrary or capricious, the courts may interfere to protect the rights of individuals. Moore v. Spokane, 88 Wash. 203, 152 Pac. 999; State ex rel. Yeargin v. Maschke, 90 Wash. 249, 155 Pac. 1064; State ex rel. York v. Board of County Commissioners, 28 Wn. (2d) 891, 184 P. (2d) 577, 172 A. L. R. 1001.

The trial court found that the failure to make this exception was not arbitrary or capricious. My examination of the record leads me to a contrary conclusion. However, since the majority does not decide the case on this basis, no useful purpose will be served by an amplification of my views on this point.

If, as the majority holds, the regulation in question is amenable to the constitutional guarantees referred to, then *868I fully agree that Justice Holmes’ “clear-and-present-danger” test is applicable. This means that the regulation is not to be sustained in so far as it interferes with appellant’s free exercise of her religion, unless such interference is necessary in order to meet a clear and present danger. The burden is upon respondent to establish such necessity. And, as the majority points out, there is no presumption in favor of the constitutionality of any regulation involving civil rights.

It may be noted, at the outset, that the trial court made no findings of fact or conclusions of law, express or implied, to the effect that it was necessary to subject appellant to the X-ray requirement in order to meet a clear and present danger. The finding that failure to make this exception was not arbitrary or capricious is clearly not tantamount to a finding of clear and present danger. As the United States supreme court said, in Thomas v. Collins, 323 U. S. 516, 530, 89 L. Ed. 430, 65 S. Ct. 315:

“The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation.”

Findings of fact and conclusions of law are required in mandamus proceedings. State ex rel. Howland v. Olympia Veneer Co., 131 Wash. 209, 229 Pac. 529. Hence it seems plain to me that the findings of fact and conclusions of law do not support the judgment denying the application. The judgment should accordingly be reversed for this reason alone.

But the majority undertakes to supply this necessary conclusion. It is held, in effect, that there exists a clear and present danger which requires interference with appellant’s free exercise of religion by requiring her to submit to the X-ray examination.

The majority properly points to the distinction between “freedom to believe” and “freedom to act.” Yet we must not lose sight of the fact that it is the free exercise of religion which is protected by the first amendment. There is *869rarely any need of court intervention to protect freedom to believe, since there are not many ways in which a state, even if it would, could impair that freedom. The freedom which has been vindicated in all the great supreme court decisions concerning the Bill of Rights is freedom to act. Appellant apparently has the idea, which should not be considered quaint, that religion is not something which need only be thought about between the hours of eleven and noon on Sunday morning, but must be expressed in daily living. Her right to do so should be safeguarded if not clearly inimical to the general public interest.

The majority also calls attention to the fact that the X-ray regulation does not prescribe medical treatment, but is purely for the purpose of discovery. I take it, however, that it was not intended, by this reference, to undermine the facts, established in the record without contradiction, that medical examinations are contrary to Christian Science doctrine, and that a Christian Scientist is hindered in the practice of his religion when compelled to submit to such examination. It is, of course, immaterial that such doctrine is incomprehensible to many people, including the writer. The reasonableness of a religious belief is not subject to challenge here. State ex rel. Bolling v. Superior Court, 16 Wn. (2d) 373, 384, 133 P. (2d) 803.

What, then, is a “clear and present danger”? First, it must be a danger of some “extremely serious” substantive evil. Bridges v. California, 314 U. S. 252, 263, 86 L. Ed. 192, 62 S. Ct. 190. Second, the danger must be “clear,” that is, there must be proof that the evil will almost inevitably result from the particular exercise of freedom. Whitney v. California, 274 U. S. 357, 376, 71 L. Ed. 1095, 47 S. Ct. 641; Antieau, “Clear and Present Danger — Its Meaning and Significance,” 25 Notre Dame Lawyer 603, 604. Third, the danger must be “present,” that is, the “degree of imminence extremely high” (Bridges v. California, supra, p. 263), or “immediate and urgent” (Board of Education v. Barnette, supra, p. 633); it “must not be remote or even probable; it *870must immediately imperil” (Craig v. Harney, 331 U. S. 367, 376, 91 L. Ed. 1546, 67 S. Ct. 1249).

The quoted expressions concerning the “clear-and-pres-sent danger” rule set an extremely strict test. And yet they are by no means to be regarded as setting the maximum standards for determining constitutionality. Quite to the contrary, as the United States supreme court said in a decision involving freedom of speech:

“Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights.” (Bridges v. California, supra, p. 263.)

It may be readily granted that the thing sought to be guarded against — infection with tuberculosis — is an extremely serious substantive evil. But is there a clear and present danger, as defined above, that this evil will result if appellant and those who are like situated are exempted from the X-ray examination in question? Will other students at the university “almost inevitably” contract tuberculosis if appellant and others sharing her religious beliefs are not screened before the X-ray machine once a year? Will such danger “immediately” (as distinguished from remotely or even probably) imperil other students?

In my opinion, there is no fact or consideration stated in the majority opinion which would justify an affirmative answer to these questions. The only fact which might seem to warrant such a conclusion is contained in the statement that in one year eight new cases were traced to one infectious case. The récord reveals, however, that this infectious case was not a student, but a surgical supervisor employed by King county hospital. At the oral argument we were told that this person came into contact with, and apparently contracted, tuberculosis at Firlands sanitorium and thereafter transmitted it to students in her class at the university. Needless to say, this incident in no wise establishes that failure to X-ray appellant will immediately and almost inevitably imperil other students.

*871There are some , other facts contained in the record but not stated in the majority opinion which also ought to be considered. While tuberculosis is infectious, it is only moderately so. It is not, for example, as infectious as measles. Tuberculosis has declined progressively for the past fifty years, so that it is,now a relatively minor cause of death. In 1900 the death rate from tuberculosis was three hundred per year per one hundred thousand population. In 1940 this had dropped to forty per year per one hundred thousand. In 1950, when the regulation complained of was imposed, the death rate was eighteen per year per one hundred thousand. The causes of this improvement are many, some having to do with lessened incidence of tuberculosis and others having to do with improved methods of treatment. - Mass X-raying became practicable about 1940 and no doubt has had considerable to do with the improvement achieved since then.

The eleven-year tabulation set out in the majority opinion, taken in conjunction with the known increase in student population, indicates that there has been a declining percentage of active cases among the students, as compared to campus population. The record does not indicate how many students are now on the campus. Assuming, however, that there has' been an average of fourteen thousand students at the university the past two years, the tabulation referred to shows that there has been one active case .of tuberculosis for each 1,473 students in 1949-1951.

The record does not indicate how many students share appellant’s religious beliefs and would seek exemption from the X-ray examination if this were permitted. Let us assume, however, that there are two hundred such students. It follows that if the present relation between number of students and active cases continues, annual X-ray examinations of all two hundred would result in the discovery of one active case of tuberculosis every seven and one-third years. In view of this slight prospect of discovering new cases, how can it possibly be said that, if these Christian Science students are relieved from the X-ray examinations, *872the remaining students will be almost inevitably and immediately placed in danger of contracting tuberculosis?

The health officer of the university testified that it is his opinion that the requirement of an X-ray examination of all registering students is necessary. In so far as the X-ray program as a whole is concerned, his opinion is well supported by the facts of record. In so far as his opinion may be taken to discountenance any exceptions on religious grounds or otherwise, I find no support for it in the evidence.

It was the health officer’s view that a single case of tuberculosis is an “epidemic,” if it can be prevented. This interesting conception of the term “epidemic” doubtless evidences an admirable frame of mind in one charged with supervising the health of university students. But this court cannot consider itself bound by such an extreme view when confronted with the task of adjusting a conflict between the exercise of police power and the enjoyment of guaranteed liberties.

I am of the opinion that the majority here, as did the trial court below, gave undue weight to the opinion expressed by the university health officer, allowing it to outbalance all other considerations. Acknowledging our own lack of qualifications to express an opinion in the field of materia medica, we must nevertheless place in proper perspective the opinions of those who are so qualified. As Justice Jackson said, in Board of Education v. Barnette, supra, which overruled Minersville School Dist. v. Gobitis, 310 U. S. 586, 84 L. Ed. 1375, 60 S. Ct. 1010, 127 A. L. R. 1493, and held invalid an attempt by West Virginia to compel students to give the flag salute contrary to their religious beliefs:

“Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of *873the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of. this Court when liberty is infringed.” pp. 639-640.

Those of us who attended the university prior to 1941, when the X-ray program was first set up, did not then consider that we were facing a clear and present danger of contracting tuberculosis. We were certainly not so advised by health authorities. How can it be, that in 1950 and 1951, with the incidence of tuberculosis dwindling and most of the campus population regularly taking the X-ray examinations, there has come into being a clear and present danger that the students will be- infected by the tiny fraction who seek exemption on religious grounds?

Those who here find sufficient justification for the frustration of appellant’s deep religious convictions doubtless feel that her injury will be slight and short-lived. But the issue before us encompasses far more than the rights of one individual. It is in such ways as this, if at all, that our basic liberties will be lost. As a people we will rise quickly to defend our freedom from brazen dictators, foreign or domestic. Can we, however, withstand the insidious erosion produced by a multiplicity of little instances where, as here, a guaranteed right is set aside because it interferes with what is said to be good for us?

*874It seems to me that the precedent established by the majority strikes down one more pillar supporting the fundamental liberties of a freedom-loving society — a pillar which other citizens holding different beliefs, may some day sorely need to withstand a different encroachment upon the free exercise of their own religion.