Transcript of Oral Argument on Monday, March 16, 1925
MR. GUTHRIE: May it please the Court.
On behalf of the appellee, I desire to make an application for extra time.
It will be practically impossible for counsel properly to present the case of the appellee in No. 583 in less than an hour and a half.
There are two counsels to be heard, counsel from Oregon and myself, and I am to open.
I cannot, in my judgment, after a most careful study of the situation, properly open this extremely important case on behalf of the appellee without at least one hour's time, and my associate, Judge Kavanaugh, should have at least half an hour.
I, therefore, earnestly request that the Court will extend to the appellee in No. 583 half an hour of extra time, in what seems to us to be the most important case of this generation.
MR. CHIEF JUSTICE TAFT: How many counsels are there in the two cases, Mr. Guthrie?
MR. GUTHRIE: There are two counsels in our case and one counsel in No. 584 who desire to be heard for the appellees, respectively; and I understand that there are three counsels who desire to be heard in the two cases on behalf of the appellants, the Governor and the Attorney General of the State of Oregon.
MR. CHIEF JUSTICE TAFT: Well, the two cases involve practically the same question, do they not?
MR. GUTHRIE: They involve the same statute, and practically the same question, except that in the first case there is an additional question raised in the briefs of the appellants as the real reason for this enactment, namely, that the appellee, the Society of these Catholic Teaching Sisters, conducts religious schools; whereas in No. 584, although it was originally an Episcopal school, it is now entirely non-sectarian and a military school for boys.
MR. CHIEF JUSTICE TAFT: Were the cases advanced together?
MR. GUTHRIE: No, they were advanced separately; although the application to advance them was made at the same time by the state.
I think that the applications were entitled in both causes.
MR. CHIEF JUSTICE TAFT: I supposed they were intended to be heard together.
Well, I will tell you what I will do, Mr. Guthrie.
Yours is the first case.
Have you any arrangement with counsel in the other case as to the disposition of time to be awarded?
MR. GUTHRIE: Mr. Veatch,* who represents the appellee in No. 584, tells me that he will be satisfied with half an hour.
MR. CHIEF JUSTICE TAFT: Well, then, we will give to No. 583 an hour's extra time.
That is, you will have three hours for No. 583, an hour and a half on each side.
And for the case which succeeds, I assume that there will have been so much discussion of the same question that they will have to be content with the regular time: that is, one hour on each side.
Mr. Justice Holmes is not able to be here today.
Therefore, we would like to vouch him in, so that he may read the briefs and unite with the Court in reaching a conclusion.
I assume there will be no objection to that.
MR. MOORE: No, your Honor.
MR. GUTHRIE: That is entirely satisfactory to us.
MR. CHIEF JUSTICE TAFT: It is quite possible, and in fact, we hope, that Mr. Justice Holmes will be here tomorrow and will hear the remainder of the argument.
MR. MOORE: May it please the Court: There is in effect at the present time a statute in the State of Oregon which provides for compulsory attendance of children between certain ages at the public schools
MR. CHIEF JUSTICE TAFT: This is Mr. Moore, is it?
MR. MOORE: Mr. Moore, appearing for the Attorney General.
That statute, in effect, provides that all children between certain ages, being those representing the elementary grades, shall attend the schools conducted by the State of Oregon, or the public schools, with certain exceptions.
Among those exceptions are children who are attending parochial schools, or private schools, and those who are receiving private instruction.
On November 7, 1922, the people of the State of Oregon, under their initiative powers enacted an amendment to this law, which is known as Sec. 5259 Oregon Laws, by which it is provided that all children between the ages of 8 and 16 years shall be required to attend the public schools of the State of Oregon; and it provides penalties to be inflicted upon the parent or guardian of such children who refuses or fails to obey the command of the statute.
This statute provides an exception in cases of children living certain distances from the school houses.
MR. CHIEF JUSTICE TAFT: Are these statutes in your brief?
MR. MOORE: They are, your Honor.
MR. CHIEF JUSTICE TAFT: At page 65?
MR. MOORE: Pages 65 and 68.
There you will find the old statute and the new statute.
So that under the provisions of the law enacted in November, 1922, all children, with the exception of certain ones not material to this inquiry, are required to attend the public schools.
This law, however, is limited by its terms not to go into effect until the first day of September, 1926.
The appellee in case No. 583 is a religious corporation incorporated 1880, under the laws of the State of Oregon, and is operating, according to the allegations of its bill of complaint, a number of schools in the State of Oregon for the education of youth; including those between the ages to be affected by this amendment.
The said appellee alleged in its bill of complaint matters which tend to show the value of the property which it has devoted to that purpose which it has accumulated, and the effect the statute would have upon its property interests.
In the lower court a question was raised as to the right of the petitioner, who is the appellee in this Court, to bring the action, on the ground that it was not affected, or, at least, not directly affected by the law.
And it was also objected that the suit was prematurely brought, for the reason that it could not be effective prior to the going into effect of the law, which will be September I, 1926.
Those matters were presented to the lower court, and the lower court held, of course, that it was not premature, and that the suit was properly brought by the petitioner and appellee.
Appearing on behalf of the Attorney General of the State of Oregon, who is one of the defendants in this suit, we have concluded that it would be to the manifest interest of the people of the State of Oregon, and of all parties concerned, that these questions be waived.
Consequently, we have not, so far as we are concerned, discussed them in the brief upon the appeal.
MR. CHIEF JUSTICE TAFT: Do you mean the question of equitable relief?
MR. MOORE: The question as to whether or not the suit was prematurely brought.
MR. CHIEF JUSTICE TAFT: Oh, yes.
MR. MOORE: And the question whether or not the appellee had capacity to bring the suit in the lower court; our desire being that the Court may pass upon the constitutional question involved.
The specific grounds upon which the lower court was asked to hold the amendment to be unconstitutional will be found in paragraph 15 of the bill of complaint, which appears at page 8 of the transcript of record in case No. 583.
The allegation is- "That said pretended law is unconstitutional and void for that it violates and contravenes 'the provisions of the Constitution of the United States, and the provisions of the Constitution of Oregon, in this "
1. That said pretended law attempts to deprive plaintiff of its property without due process of law in violation of that clause of Section 1 of Article XIV of the Amendments to the Constitution of the United States which provides that no state shall deprive any person of property without due process of Jaw.
2. That said pretended law attempts to deprive parents of their right to direct and control the education of their own children, and to deprive children of their right to acquire useful knowledge in private schools, and to deprive teachers of their right of engaging in the useful and lawful and lucrative occupation of teaching children in the eight primary grades in private schools, and to deprive plaintiff of its right to maintain and conduct its said grade schools in the State of Oregon-all in violation of that clause of Section 1 of Article XIV of the Amendments to the Constitution of the United States which provides that no state shall deprive any person of liberty or property without due process of law.
"3. That said pretended law attempts to impair the obligation of the contract between the State of Oregon and the plaintiff arising out of the aforesaid corporation laws of said state and the incorporation of the plaintiff there under, in violation of Section 10 of Article I of the Constitution of the United States, and of Section 21 of Article I of the Constitution of the State of Oregon.
"4.That said pre tended law attempts to delegate arbitrary and unlimited power and authority to the County School Superintendents of the State of Oregon to determine when any child between the ages of eight and sixteen years shall attend the public grade schools of said State, and when any such child shall be exempt from the provisions of said pretended law, in violation of those clauses of Section 1 of Article XIV of the Amendments to the Constitution of the United States, which provide that no state shall deprive any person of liberty without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
"I may say that this fourth ground is based upon a provision of the law that where a child is receiving private instruction, the superintendent of schools may determine whether that instruction is adequate, and if the determination is that it is not adequate, the child may be required to attend the public school.
"5. That said pretended law attempts to control the free exercise and enjoyment of religious opinions and to interfere with the rights of conscience in violation of Section 3 of Article I of the Constitution of the State of Oregon, and of that clause of Section I of Article XIV of the Amendments to the Constitution of the Unit ed States, which provides that no state shall deprive any person of liberty without due process of law.
"6. That said pretended law attempts to abridge the right of parents in the State of Oregon to send their children to private schools in other states of the United States, in violation of that clause of Section 1 of Article XIV of the Amendments to the Constitution of the United States, which provides that no state shall make or enforce any Jaw which shall abridge the privileges or immunities of citizens of the United States.
"The case came on for hearing; and in the lower court , in the 13th day of March, 1924, upon an application for an interlocutory injunction, it having been alleged in the bill of complaint that the defendants were threatening to enforce the law, and that by reason of these threats of the defendants, parents and others who were in charge of children who were at that time, or who had heretofore been, at tending the schools conducted by the petitioner, the appellee in this court, were withdrawing their children from the schools of their petitioner, to its irreparable injury; and that by reason of the threats of the defendants, such parents and others would continue to withdraw their children from the public schools.
And that was the basis of the application for the interlocutory injunction.
The matter came on for hearing upon this application upon the 15th day of March, 1924: and on the 31st day of March, 1924, the court entered an order enjoining the defendants from enforcing or attempting to enforce, or threatening to enforce, the act, subject to the final disposition of the case.
And the case comes to this Court upon a direct appeal from that order.
The assignments of error will be found set out at page 30 of the transcript of record.
And briefly, I will state that the ground up on which these assignments are based is that the court erred in holding the act to be unconstitutional, and in holding that it deprived the petitioners of their property without due process of law, or that it deprived parents, the guardians or other persons having control of children and the children affected of their liberty without due process of law.
And that, I believe covers the issues that are presented by this appeal.
MR. JUSTICE MCREYNOLDS: Is there any State constitutional question injected into it?
MR. MOORE: Well, I think it was submitted solely upon the Federal Constitution.
Of course, there were provisions of the Oregon Constitution that were appealed to in connection with this; but they are practically identical with those of the Federal Constitution.
I think there is no separate question, except that, in the lower court, as I say, the question as to whether or not the petitioner's suit was prematurely brought, and whether or not the petitioner was directly affected.
MR. JUSTICE MCREYNOLDS: (interposing) I am not talking about that.
Do you mind giving us your summary of what the State statutes provide?
MR. MOORE: The statute, your Honor, provides that all children between the ages of eight and sixteen years shall be required that is the parents and guardians and others having charge of children within the State of Oregon, between the ages of eight and sixteen years, shall be required to send them to the public schools for a certain specified time-which is the term of the public schools in the State of Oregon.
In other words, I think a fair construction of the statute is that, by its term, it requires parents, guardians and all other persons having in charge children between the ages of eight and sixteen years, to send them to the public schools during the time such schools are in operation, subject to the penalties provided in the act for failure to obey its mandate.
MR. JUSTICE MCREYNOLDS: You said the re was some except ion giving the superintendent of schools certain powers to make exceptions?
MR. JUSTICE MCREYNOLDS: (interposing) No; I just want to know what it is.
MR. MOORE: "Any child who is abnormal, subnormal or physically unable to attend school.
"That is the first exception.
The other exceptions are: "(b) Children Who Have Completed the Eighth Grade.
Any child who has completed the eighth grade, in accordance with the provisions of the state course of study.
"(c) Distance from School- Children between the ages of eight and ten years, inclusive, whose place of residence, is more than one and one-half miles and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from a public school; provided, however, that if transportation to and from school is furnished by the school district, this exemption shall not apply.
"(d) Private Instruction-Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extend longer than the end of the current school year.
Such child must report to the county school superintendent or some person designated by him at least once every three months and takes an examination in the work covered.
If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year.
If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than 5100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.
MR. JUSTICE SUTHERLAND: There is no exception of any kind in the case of private schools?
MR. MOORE: There is no exception of any kind in the case of private schools, your Honor.
Private instruction, physical incapacity, completion of the eighth grade, and distance from the school house are the exceptions provided in the act.
MR. CHIEF JUSTICE TAFT: And the change in the new law is the omission of exception (a) in the old law?
MR. MOORE: The old act accepted children attending private and parochial schools.
MR. CHIEF JUSTICE TAFT: The original law provided this exception "Any child or children, who is or are being taught for a like period of time in a private or parochial school such branches as are usually taught in the first eight years in the public schools, or has, or have, already acquired the ordinary branches of learning taught in such schools, the feet of which acquisition of such ordinary branches of learning by such child, or children, shall be determined by the school board in charge of the public school in such district.
"It is the omission of that?
MR. MOORE: It is the omission of that; it is the omission of that upon which the allegations of invalidity of this act are based.
In other words, your Honor, the question presented, as I understand it, is whether or not that provision of the Oregon School Law requiring all children between certain ages to attend the public schools of the State is an arbitrary and unreasonable exercise of the police power of the State.
This Court has said on different occasions- and I think there is no ground for argument on that and that it may be said to be the law-that the education of children of the ages affected is a matter subject to the police power when reasonably exercised.
That being true, the question which remains is, whether or not the exercise of police power represented by the act in question is arbitrary and unreasonable?
And in that connection, I would desire to call your Honors' attention to the fact that the Code provides-this Act will be found at Chapter 1, General Laws of Oregon, 1923, and will be found set out in full in Appendix No. 1 of the brief on behalf of appellee filed by Mr. Guthrie and his associates, the title being that it is a Bill for an Act to Amend Section 5259 of the Oregon Laws.
However, the ballot title under which it was submitted, and which the Supreme Court of the State of Oregon has held shall operate as the title of an act-in a recent case it held that, although the title to the original act might have been defective, if the ballot title was sufficient under the Constitution the act would nevertheless be valid.
And in that connection, I would call attention to the ballot title, which will be found on page 21 of Appendix 1, revised, filed in connection with the brief of Messrs.
Guthrie and Hers Kopf, counsel for this appellee.
MR. CHIEF JUSTICE TAFT: Give me that page again, please?
MR. MOORE: This is on page 21 of Appendix 1.
Then the ballot goes on to say: "Purpose : Requiring any parent, guardian or other person having control, charge or custody of a child over eight and under sixteen years of age, from and after September 1,1926, to send such child to a public school during the entire school year, excepting : (a ) children physically unable; (b) children who have completed the eighth grade; (c) children between the ages of eight and ten living more than one and one-half miles, and children over ten years of age living more than three miles from a public school, except when transportation is furnished; (d) children taught by parent or private teacher.
MR. JUSTICE SUTHERLAND: That is the title?
MR. MOORE: That is the ballot title.
This amendment was enacted by the people of Oregon under the initiative provision of the State Constitution.
MR. JUSTICE SUTHERLAND: I understand.
MR. MOORE: And this was the ballot title under which the people voted on the measure.
MR. JUSTICE SUTHERLAND: Where is the constitutional provision regarding that?
MR. MOORE: Relating to the ballot title?
MR. JUSTICE SUTHERLAND: Is that the thing that was complained of in this suit?
MR. MOORE: No, not at all, your Honor.
I merely referred to it for the purpose of showing the scope of the provisions of the act, in ·connection with the consideration of whether or not this constitutes an arbitrary and unreasonable exercise of the police power.
MR. JUSTICE SANFORD: Well, there was a question raised originally about the title under the Constitution of the State, was there not?
MR. MOORE: Yes, your Honor; that was discussed in the lower court; and it was also discussed in the brief tiled on behalf of the Attorney General in this case.
MR. JUSTICE SUTHERLAND: (interposing).
Well, is there any error now assigned In regard to that ?
Is there any question as to that now raised in the briefs?
MR. MOORE: Not in the brief tiled on behalf of the appellant, the Attorney General.
MR. JUSTICE SUTHERLAND: The appellees do not raise that question?
MR. MOORE: No, I think we are in accord, your Honor, that the matter shall be submitted to the Court upon the constitutional grounds.
MR. JUSTICE MCREYNOLDS: Well, you understand that the sharp Issue presented here IS whether the State can require a child to go to the public schools?
MR. MOORE: That I understand to be the question involved your Honor, briefly stated.
In determining whether or not the act constitutes an arbitrary and unreasonable exercise of the police power, it appears to us that the first matter to be taken into consideration is naturally its provisions.
And it requires no argument to establish that these provisions, by its title and by the terms of the act, are to compel all children between certain ages to attend public schools.
This Court has announced in a recent case that the State may make provisions requiring all children to attend some school' and that it may enact reasonable provisions relating to all schools.
That being true, the additional question is presented in this case, whether or not the extension of power, or attempted extension of power, represented in this act is arbitrary and unreasonable.
We understand that another principle of law concerning which there can be no dispute is that every act is presumed to be valid until its invalidity becomes apparent; that if its invalidity is not apparent in its provisions, the burden is upon the person attacking it to show wherein and how it is invalid.
That being true, another rule of constitutional law which has often been announced by this Court is that the Legislature is presumed to have investigated and to have taken into consideration the necessity for the law.
And in this case the people of the State of Oregon are presumed to have investigated and taken into consideration the question of whether or not the necessity for this law existed.
And every presumption must be in favor of the validity of the law.
In that connection, an appeal or reference has been made to recent decisions of this Court, particularly in the case of Adams vs. Tanner.
Without going into the facts in that case, it may be said that the first two sections of the act specifically stated its purpose and object and the evil intended to be corrected; so that this Court was able to take judicial knowledge of that purpose and whether or not the means attempted to be adopted were reasonable or whether they were arbitrary; whether the evil sought to be corrected was one which might be reached by legislation regulatory rather than prohibitory in its nature.
And we submit that we have always understood the decision of the Court in that case to be based upon the ground that the requiring of the filing of a bond conditioned for the protection of all persons concerned, with penalties for fraudulent act was a sufficient regulation to overcome the evils which were intended to be met by these prohibitory terms of the statutes.
Another decision of this Court which was referred to in the briefs of the appellee is that of Meyer vs. Nebraska.
And we submit to your Honor that that case represents a case where the question was definite: where the Court was able, of its judicial knowledge, to take into consideration just what was intended to be corrected.
And the decision hinged upon the question of whether or not the teaching of the German language was, in and of itself, a matter so inherently injurious as to justify the enactment of a law depriving parents of their right to require that such language be taught in a parochial school, and as to justify a teacher engaged in such a school in the teaching of that language--the taking away from him of his right to engage in such useful and lawful occupation ; and that those were matters which were within the judicial knowledge of the Court.
As opposed to those, we have such cases as Powell vs. Pennsylvania, which involves the consideration of a question of fact.
And we understand that this Court has consistently refused to take into consideration questions of fact which may have been determined by the Legislature, or by the people, in connection with the enactment of a statute, and will presume that the facts were sufficient.
Indeed, in the case of Powell vs. Pennsylvania, as I recall, the Court refused to consider any proof that the oleaginous substance of butterine or oleomargarine was not an unhealthful product, and that its use was not injurious to health, but said that the judgment of the Legislature of the State of Pennsylvania on that matter could not be disturbed by the Court.
That is the principle of law upon which the appellant relies in this case.
My investigation of the authorities has not revealed that there is any difference as to the rule as to the exercise of the police power to protect the health, or to protect the morals, as distinguished from the exercise of the police power to promote the general welfare of the people of the State.
In addition to that, we submit to your Honors that this presents what is essentially a governmental or political question, and that in such cases unusual deference should be extended to the consideration or the determination of the people of the State affected with reference to such a matter.
There is one additional question to which I would not refer, except that I apprehend that it will be referred to extensively in the argument of the appellee; and that is the contention that this is an attack upon religious liberty.
And as to such a contention, I would respectfully state to.
Your Honors that it is not supported by the title of the act it is not supported by the ballot title.
It is not supported by any provision of the act itself.
And I disclaim on behalf of the people of the State of Oregon any such intention on their part.
I ask this Court to consider the question simply as an exercise of the police power of the people of the State, based upon honest consideration with the determination to promote the welfare of the whole people, without reference to any sect; Without reference to any society.
The Catholic societies represented here are not alone affected.
Numerous other denominational schools exist in the State of Oregon.
The people of the State of Oregon are a religious people.
They are a people who have ever been liberal and Just and generous in the promotion of every religious enterprise.
In this case, reference has been made-the law is see out in Appendix No. 1 to the brief of Mr. Guthrie on behalf of the appellee, showing that in elementary schools conducted by the State of Oregon in connection with institutions for the correction of juvenile delinquents, allowance has been made that they shall attend institutions such as may be selected by persons rep resenting them, for religious instruction.
And the last page of this appendix sets forth an act of the Legislature of the State of Oregon passed in 1925, reading as follows.
“That any child attending the public school, on application of his guardian or either of his parents, may be excused from such school for a period or periods not exceeding one hundred and twenty (120) minutes in any week to attend week-day schools giving instruction in religion.
”And I submit to your Honors that this does not support the contention that the intention was to interfere with religious instruction.
MR. JUSTICE MCREYNOLDS: What is the effect of your act?
MR. MOORE: I beg your pardon?
MR. JUSTICE MCREYNOLDS: What practical effect is it conceded is given to your act?
MR. MOORE: The practical effect, your Honor, is this: That children of the ages affected are required to at tend public school.
No contention has been made on the part of appellee in this case that its school is superior in any respect to those conducted by the State; that the course of study is superior; that the instructors are superior; or in any respect that it is superior to the education and the instruction that would be given them in the schools conducted by the State of Oregon.
So that, in the last analysis, we must take it that the sale question presented is that it deprives them of the right to impart to children in their schools sectarian religious instruction, which they insist is a right guaranteed by the Constitution of the United States.
MR. JUSTICE MCREYNOLDS: How long during the day are your public schools in session, and how many days in the week, and how many months in the year?
MR. MOORE: My off-hand knowledge of the subject, your Honor, is that the schools are in session from 9 o'clock to 12, and then there is an intermission; and in the ordinary schools-I do not know how it may be in the different cities; I think there are different regulations- but ordinarily, it is from I to 4 o'clock in the afternoon, with an intermission of 15 minutes in the forenoon and one of 15 minutes in the afternoon.
I believe there are different regulations in the cities; but whether or not they apply to elementary schools I am not able to state.
MR. JUSTICE SUTHERLAND: When children are kept in the public schools, they are not able to attend any other schools, are they?
MR. MOORE: No, your Honor; and I suppose that is the reason that the Legislature provided that they might be excused from the public schools to attend other schools where religious instruction might be had, with out adding any additional burden upon the child.
MR. JUSTICE SUTHERLAND: It would not be any use to keep up the private schools if the children could not go to them?
MR. MOORE: I think, your Honor, the effect of the enforcement of the law would be, insofar as instruction of children between the ages affected by this law is concerned, that they could not maintain schools to instruct them in the common school branches during the hours in which the public schools of the State are in session.
MR. JUSTICE SUTHERLAND: Then all that would be left would be the kindergarten?
MR. MOORE: No, your Honor; I understand that they conduct schools for grades above the eighth grade; that they have junior colleges, and that only a part of the instruction in such schools would be affected by the operation of this law; that is, insofar as it relates to children between the ages of eight and sixteen years who have not completed the first eight grades in the public schools.
MR. JUSTICE MCREYNOLDS: Well, the proposition that you have got to defend is the right of the State to require every child between the ages of eight and sixteen who has not passed the eighth grade to go to the schools established by the State, is it not?
MR. MOORE: That is it.
MR. JUSTICE MCREYNOLDS: Is there anything said in the act about private schools conducted at night, or on Saturdays or Sundays, for religious instruction or anything else than the public school?
MR. MOORE: In this particular act?
MR. JUSTICE MCREYNOLDS: That is the act we are discussing is it not?
MR. MOORE: No, your Honor; there is no exception.
The law relates strictly and solely to compulsory attendance at the public schools of children of certain ages.
However, other provisions of the statutes of Oregon provide that they may be excused for a certain time for religious instruction.
MR. JUSTICE MCREYNOLDS: I understand that.
MR. MOORE: And as I understand it, those statutes are to be construed together.
MR. JUSTICE MCREYNOLDS: Now, have you any authorities showing the right of the state to require compulsory attendance of the children at the public schools?
MR. MOORE: I have them collected, your Honor, in my brief.
MR. JUSTICE MCREYNOLDS: What is your conclusion as to the effect of those authorities?
MR. MOORE: My conclusion on the matter is this: That the state may enact and enforce laws requiring children to attend the public schools solely, for instruction in the common school branches if that does not constitute an unreasonable and arbitrary deprivation of the right of the parent to require that they attend some other school.
And to repeat what I stated a while ago, I understand the rule to be in that case that the people are presumed to have taken into consideration all of the conditions that exist in the State of Oregon.
There is no disposition on my part to go into matters of fact; because I understand that this Court would not listen to an argument based upon that.
So that the sole question is to be resolved or decided according to the principles of constitutional law which have been announced by this Court in cases which it has decided in the past.
And unless I am wrong in my understanding of that law; and unless there shall be a departure from that, I understand, if I may be permitted to repeat, that the presumption is that this law is valid.
:MR. JUSTICE MCREYNOLDS: (interposing).
Well, we do know, do we not, and are we not bound to know, that this act, if it is put in force, will shut up every parochial school?
MR. MOORE: Yes.
MR. JUSTICE MCREYNOLDS: And will shut up every private school; which means that the children must obey it.
There is no question that we have that knowledge.
Is your public school system in Oregon maintained by general taxation?
MR. MOORE: Yes, your Honor.
:MR. JUSTICE MCREYNOLDS: Upon what theory do you support that taxation?
MR. MOORE: The theory of the taxation, your Honor, is this: The duty of the state to provide education for the children of school ages.
In addition to that, the State of Oregon taxes its people very heavily for the support of the state university, and for the support of the state agricultural college.
One of the heaviest items of taxation in the State of Oregon is for education; and the people of the State of Oregon have taken great pride in their public school system.
And I may say that the public schools of the State of Oregon rep resent the latest in everything which pertains to ' the advancement of the mental condition and the physical condition of the children who attend the public schools.
The history of education-it is not necessary to go into the history of education in this country; but a brief consideration of it will reveal that in the early history of the country the people did not have the finances with which to provide public schools for all children.
Necessarily, by reason of conditions, other means must be resorted to.
And they resorted to the private schools; they resorted to parochial schools; and they resorted to private instruction.
The time has come when such means need no longer be resorted to.
The State of Oregon is covered with elementary schools which provide everything that can be furnished for children in the way of elementary education.
It is covered with common schools; it is provided with high schools, and with township schools.
The state has also provided hard surface roads on which the children may be transported to those schools in all kinds of weather.
And I take pride in saying that the public schools of Oregon represent the utmost that can be done for the promotion of the intellectual advancement, the physical advancement, the health, and all things which tend to provide good citizens of the coming generations in that state.
MR. CHIEF JUSTICE TAFT: Mr. Attorney General, you have not found, I presume, that there is any other law which has been contested before a court, in Oregon or elsewhere, in which the state has attempted to shut out, between these ages, the teaching of the children in private schools, have you?
I ask you merely for information.
MR. MOORE: Yes, your Honor.
The only case which I have found which I may say specifically relates to that matter is a case in the State of Michigan , which is referred to in the brief of the appellee, where an act was to be submitted to the people which contained such a provision-a provision requiring all children to attend the public schools.
I do not know that I can state exactly how the question arose; but it was with reference to the duty of the Secretary of State to put it on the ballot title at the election.
And it was contended that the law was clearly invalid, and for that reason that.
It should not be submitted to the people; that it was clearly invalid, for the reason advanced by the appellee in this case, that it injected a religious issue which was to be avoided if possible; that the effect of the law would be to deprive parents of their right to select the school in which their children should be educated.
The Supreme Court of Michigan, however, held that it would not pass upon the validity of the measure in advance: and it was required to be put upon the ballot.
Whether or not it ever became a law I do not know.
MR. GUTHRIE: It was defeated.
MR. MOORE: The reference in the brief of the appellee is from the dissenting opinion of the Supreme Court in that case.
That is the only case I think I have found where the question has been specifically presented; and it was not directly passed upon by the court, for the reason stated.
The case of Berea College vs. Kentucky, which has been cited by appellee, is not in point for the reason that the only issue decided in that case was that a state might control a corporation which It had chartered to conduct a school, and might withdraw privileges which has been extended to it in its charter.
MR. CHIEF JUSTICE TAFT: In that case, as I recall it, the court left open specifically the question whether such a restriction as was permitted there under the power of the state to amend a corporate charter could be imposed as an exercise of power over a private school.
MR. MOORE: My recollect ion, your Honor, is that that was not necessary to the decision of the court, and that the court, as you says, left the question open.
MR. CHIEF JUSTICE TAFT: Yes, that is it.
MR. MOORE: And did not pass upon it at all.
MR. JUSTICE SUTHERLAND: Your contention would lead to the conclusion, would it not, that the state has the power, if it chooses to exercise it, to control every institution, every private institution, in the state, and can forbid children under penalty from attending any such school?
MR. MOORE: My contention is, your Honor, that if the police power extends to education primarily, the quest ion of the limits of that power is to be determined by the people.
MR. JUSTICE SUTHERLAND: I am not saying that that is not correct; but I am asking you if that is not your conclusion?
MR. CHIEF JUSTICE TAFT: (interposing).
Unless it violates some of the rights secured by the Constitution?
MR. MOORE: Unless it violates some of the rights secured by the Constitution which were not surrendered by the people and come within the police power of the state.
The quest ion of the extent to which the people surrendered their powers under the police power by the enactment of the Fourteenth Amendment will be more particularly discussed by counsel for the Governor of the State of Oregon, as I understand.
And my object will have been accomplished if I can leave with the Court my ultimate contention, which is that, primarily, this matter rests with the people of the State of Oregon; that if they have the power to enact a law providing: for compulsory education, the limit to which that law may extend rests primarily with them; that, as to this Court, it is to be presumed to be valid.
Sufficient and valid reasons are presumed to exist for the exercise of that power.
MR. JUSTICE SANFORD: .
It is not compulsory education; as I understand, it is compulsory public school education.
MR. MOORE: Yes.
That is, that the people of the State of Oregon, as a matter of mature consideration, may determine to do that.
And in this case, the matter was submitted to the people under the initiative.
It is not a law enacted by the legislature.
It provoked a great deal of discussion upon the public platform and in the public press.
Articles were submitted in the official pamphlet.
It was given full consideration; it is the result of full and mature consideration on the part of the people of the state.
And we appeal to your Honors, that due deference be extended to them and to their conclusions regarding a matter which is peculiarly within their powers, and concerning which they are peculiarly advised.
As I say.
I have no disposition to engage in any discussion of facts, because I feel that it would be useless.
I am not in a position to state them.
I know not what and how many things may have entered into the minds of the people of the state with reference to this which prompted their conclusion.
I do know that the act represents the result of mature and earnest consideration on the part of the people.
MR. GUTHRIE: May it please the Court: I represent the appellee Society, a Catholic teaching sisterhood, which has been teaching children In Oregon since 1859, that is to say, during the past Sixty-Six years.
As far back as 1866, the Society had established so high a reputation that its academy at Portland was incorporated by the State of Oregon, and in 1880 the Society itself was duly incorporated under the laws of the state.
It now has, as the bill alleges and as is admitted, for the state presented no pleading or proof-it now conducts eleven primary schools, of which five are academies and six parochial schools, at all of which religion is regularly taught.
These eleven schools, in which the primary and elementary grades are taught, are attended by children between the ages of eight and sixteen years, and four of them are boarding schools.
The Society has also eight preparatory or secondary schools and a college.
It instructs in Oregon today over 2,600 children , of whom 1,980 are children between the ages of eight and sixteen, including 100 orphans between those ages, of whom it has charge and custody in its orphan asylum located in Clackamas County in the State of Oregon.
In order to simplify the argument, I propose, after endeavoring to eliminate what is not involved and stating some important facts shown by this record , to discuss, with your Honors ' indulgence, the questions of law presented on this appeal in the following order.
First: The appellee Society as a corporation is within the provisions of the enactment in question, in that it has charge and custody of children in its boarding schools and orphanage and in that it is otherwise directly affected in its property rights by the provisions in question, and therefore is entitled to sue in its own right .
I may state at this point that I do not understand that any waiver of the Attorney General in regard to our right to sue under the Fourteenth Amendment, or in regard to the alleged prematurity of the suit, can be of much avail.
We must satisfy your Honors that you have jurisdiction in equity as well as under the Constitution; and without so satisfying you, we cannot establish jurisdiction in this Court by waiver or consent.
But those two questions are fully covered in our briefs.
Secondly: Even if not directly affected or entitled to sue in its own right, the appellee Society is entitled to complain of a law which directly destroys its patronage and prevents parents and guardians from sending their children to its primary schools, and which practically deprives its teachers in the primary grades of the right to pursue their profession.
We conceive that that proposition was recently decided by this Court in the German Language cases (262 U.S. 390 et seq.), in which Mr. Justice McReynolds wrote the opinion of the Court, as well as in Terrace vs. Thompson (263 U. S. 197) when Mr. Justice Butler wrote the opinion.
We cont end that the suit was not prematurely brought simply because its penalties do not begin to operate or become effective until Sept ember, 1926, because, as a matter of fact, it is alleged, and not denied, that its injurious and destructive effects on appellee have been immediate and are so conceded on this record.
Thirdly: I shall contend that the right to conduct a private school is a right partaking of both liberty and property, and as such this corporation, the appellee Society, is entitled to protection under the Fourteenth Amendment against enactments which practically deny it either right.
There is an argument in the brief of the Governor that corporations have no liberties and can assert no such claim.
We think that claim untenable and not decided in the cases cited.
But whether we are dealing with liberty or with property is immaterial; the right interfered with and sought to be destroyed here partakes of the nature of both liberty and property.
And, hence, we insist that in either aspect, and certainly in the property aspect, we are entitled to relief if this act be unconstitutional.
This Court is constantly granting corporations such relief.
Fourthly: We then argue that the conceded power of the state to regulate private schools and to prescribe the qualifications of teachers therein and their being licensed does not extend to the power of prohibition or destruction, which is necessarily involved in a law requiring all children between eight and sixteen years of age to be sent to the public schools.
Your Honors will find in the brief of the Attorney General the concession that the reason of this act is apparent, that the reason which prompted the people is apparent, and that it was their intention to compel children between the ages of eight and sixteen to be educated exclusively in the public schools.
Fifthly: We shall urge that the right of parents to send their children to private schools of their own choice is a fundamental natural and sacred right, which is part of the liberty guaranteed to us all and protected by the Fourteenth Amendment against undue denial by the state.
And likewise we shall urge that the right of teachers in the primary grades of private schools to pursue their time-honored and universally esteemed, and, as Mr. Justice McReynolds said in the German Language cases, useful calling par takes of the nature of both liberty and property, and cannot be arbitrarily denied by a state.
It is said in the brief of the learned Attorney General that the rights of teachers are not affected, because they may go and secure employment in the public schools.
But such argument is not worthy to consume any of the very limited time at my disposal for its ready refutation.
It is fully covered by the decision in the German Language cases.
And, finally, we shall contend that if the true and real motive and intent of this measure, as deliberately disclosed and confessed in the brief filed in this Court on behalf of the Governor of the State, and as deliberately disclosed and confessed likewise in the brief filed on behalf of the Attorney General of the State-that if the true and real intent and motive, as well as the practical effect, of the enactment in question, constitute an attempt to deny religious liberty or freedom of conscience to those parents who desire to send their children to schools of their selection, where the doctrines of their own faith-be it Catholic, Protestant, or Jewish can be taught them , the enactment would likewise constitute a violation of religious liberty, which is also guaranteed by the Fourteenth Amendment against undue denial by a state; but this point has not yet been expressly decided by this Court, although within the principle and spirit of Mr. Justice McReynolds' opinions in the German Language cases.
If your Honors please, it is important for you to note at the outset that no question is involved as to the power of a state to enact a compulsory education law and to require that children shall attend some school, and correlatively as to the power and duty of a state to provide at public expense schools where free tuition of children may be obtained.
Compulsory education laws, as Mr. Justice Sanford has just pointed out to the learned Assistant Attorney General, are fundamentally different from compulsory public school laws compelling all parents under severe penalties to send their children to a public school.
Compulsory education laws are in effect in every state of the Union, as well as in the District of Columbia, and have been in force in Oregon for more than thirty years.
The present enactment, however, is not a compulsory education law, such as is in force in every other state, requiring children to be educated and to attend some school.
But it is a compulsory public school law, requiring children to attend a public school, under penalties of fine and imprisonment against the parents and, in practical effect, as indeed was intended and as the learned Assistant Attorney General practically so conceded in his argument, it would suppress and destroy all private schools.
In fact, the Attorney General says in his brief (at p. 72) that "the people of the State of Oregon, under their initiative powers have enacted a law requiring that all children shall be educated exclusively"-exclusively is his very word- "in the public schools".
I am using throughout my argument the term "private school" in the comprehensive sense generally employed in statutes, as comprising schools other than public schools maintained by the state; and I include therein parochial, denominational and all other religious schools, so-called, because they all teach the doctrines of some religion-such religious schools as have been in existence and operation in this country nearly three centuries without interference by any legislature until this Oregon law.
MR. CHIEF JUSTICE TAFT: Mr. Guthrie, we will suspend now.
MR. CHIEF JUSTICE TAFT: The case now on hearing is No. 583, Walter M. Pierce, Govern or of the State of Oregon, et al, appellants, VS. The Society of the Sisters of the Holy Names of Jesus and Mary, appellee.
Before you go on, I want to say that Mr. Justice Stone has been called away by the death of a near friend, and will not return until tomorrow morning; but we will consider him in the case, he having been present at the beginning of the hearing.
MR. GUTHRIE: That will be satisfactory to all, your Honor.
MR. CHIEF JUSTICE TAFT:
MR. GUTHRIE: May it please the Court: As the adjournment was taken yesterday, I was stating that no question was involved as to the power of the state to enact compulsory education laws requiring children to attend some school, nor as to the duty of the state to provide means for those who would otherwise be untaught.
Every state in the Union has such a compulsory education law, as well as the District of Columbia.
Last month Congress passed an act applicable to the District of Columbia, printed in our Appendix I, in which it expressly provided that education in a private or parochial school should be accepted as a substitute for education in a public school, provided only that the Board of Education deemed that the instruction given in such private or parochial school, or privately, was equivalent to the instruction given in the public schools.
All of our states except Oregon distinctly recognize private or parochial schools as proper substitutes, either eo nominee; or under terms that clearly include them.
Twenty-four of the states expressly provide in their statutes that attendance at a parochial school shall be accepted, and as I have just stated, the remaining states, although in different language, recognize that education at a private school or at a denominational school shall be acceptable so long as the children of the state are educated.
This fact, and the fact of the absence of similar legislation to this Oregon enactment, certainly attests an exceptionally wide- spread belief and an exceptionally long tradition-for it goes back to Colonial times, and all through modem times-that education should be free, that the parents should have the right to determine where their children should go to school, and that regulation can readily reach every possible evil that you are asked by the Assistant Attorney General to presume, without a scintilla of evidence or suggestion in the record, or in anything of which the court below or here could take judicial notice.
In a word, Oregon alone prohibits parents from sending their children to private or religious schools, striking at Catholic and Protestant alike.
There are many Protestant religious schools in Oregon, as the record shows-Catholic, Episcopalian, Lutheran, Adventist and other denominations, and there have been from the beginning, and long before any public school system was established in Oregon or any compulsory education law passed in Oregon.
Oregon alone has attempted to suppress private and religious schools.
If I may quote Milton's famous phrase, in the second hook of "Paradise Lost," Oregon alone has that "bad eminence" of intolerance and antipathy for freedom of education.
All other states have recognized the philosophy of this subject, and that is that the end and the goal of the state, the legitimate end and the legitimate goal of the state, should be and really is education, and not the particular' form in which the education shall be imparted.
This was admirably put or expressed by the Supreme Court of Massachusetts, when Mr. Justice Holmes was on that bench, in the case of Commonwealth vs. Roberts (159 Mass. 372), and I shall read a sentence from that opinion, which your Honors will find quoted in Mr. Veatch's brief in the case of the Hill Military) Academy No. 584, namely.
"The great object of these provisions of the statute (that is, the Massachusetts compulsory education law) has been that all children shall be educated, not that they shall be educated in any particular way.
To this end public schools are established, so that all children may be sent to them unless other sufficient means of education are provided for them.
"And all through the history of Massachusetts (which was rather prominent in intolerance in the Seventeenth Century), from the very first law which they passed in regard to education, they recognized the right of the patent to have his children educated otherwise than in the public schools established by the Puritans.
Nor in this case, if your Honors please, is there any question as to the power of a state to regulate as distinguished from prohibition and suppression.
A state may require licenses, both of the schools and of the teachers.
You have so held.
A state may reasonably prescribe necessary studies.
A state may prohibit the teaching of doctrines inimical to our form of government and to the duties and standards of good and loyal citizenship.
But a state cannot prohibit the teaching of religion, except, of course, In case the tenets of the particular religion-for example, recalling the case In this Court relating to the Mormons-in case the doctrines of a religion are subversive of the common ideals of morality, or are such doctrines as those of extreme pacifists who claim the right to teach that children are justified in refusing military service and may be taught to be actively disloyal.
All these reasonable branches of regulation can be exercised by any state, and have actually been exercised in Oregon as reference to the statutes collated in our Appendix I will readily show.
Thus, the school boards in Oregon have full power to determine that the children shall be taught in the private schools the same subjects that they are taught in similar schools maintained by the state.
Teachers in Oregon private schools are required to take the same oath as public school teachers as to reverence for law and order and undivided allegiance to our Governments.
All private and parochial schools are required by statute to give regular courses in the Constitution of the United States, and a most stringent statute, such as your Honors sustained in Gilbert vs. Minnesota (254 U. S. 325), prohibits, under very severe penalties, up to ten years of imprisonment, the teaching of syndicalism, sabot age and other forms of socialistic and communistic doctrine.
I shall not argue the obvious: that the effect as well as the intent of this statute was to prohibit and destroy religious and other private schools.
They were to be suppressed no matter how superior their instruction; no matter how well conducted; no matter how desirable and necessary for certain children who needed particular discipline or particular instruction.
The good and the inferior alike were to be suppressed, without any complaint or any investigation, without any expert report or commission, without the slightest ground being assigned, except-that its promoters desired that all children should be compelled to be educated exclusively along the same lines of uniformity of instruct ion established by bureaucratic and political school teachers whether competent or not .
The court below, with ample knowledge of the conditions actually existing in Oregon, declared, with a persuasive authority hardly to be denied, for all three of these learned Federal judges had been on the bench in Oregon for more than thirty years, one of them, District Judge Bean, for more than forty years, and two of them had been Chief Justice of the State of Oregon: they unanimously affirmed that the act could not be more effective for utterly destroying the business and occupation of the plaintiffs' schools, except, perhaps, the colleges and preparatory grades , if it had been entitled, "An Act to prevent parochial and private schools from teaching the grammar grades.
"Nor shall I argue, for the time at my disposal is altogether too short, the far-fetched suggestion contained in the brief filed on behalf of the Govern or of the State, that the children of parents who desire that they shall have religious instruction are in no way interfered with, because they can send their children to a private school before the public school opens, and send them to a private school after the public school has closed.
That very suggestion was made in the German Language cases, and Mr. Justice McReynolds quoted from the court below, that such a proposition was little short of absurd because, of course, there is a limit to the number of hours that children can be kept confined in school.
Hence, in view of the candid and creditable admission of the learn ed Assistant Attorney General of Oregon that the enactment now before the Court would inevitably suppress every private school in the State of Oregon teaching the primary and grammar school grades, I desire to affirm as emphatically as I can that, if held constitutional by this Court, the decision in these cases would necessarily recognize a legislative power in the several states to suppress every private, every denominational, every parochial and every religious private school in the country.
It would recognize the power to close those great Episcopal schools of Massachusetts, Groton and St. Marks, St. Paul's in New Hampshire, Kent and Pomfret and St. Margaret's in Connecticut, and throughout the country as the admirable and eloquent brief filed by the counsel of the Protestant Episcopal Church as amicus curiae conclusively shows; and it further shows that they have one hundred such religious schools where children of the Episcopal faith are being taught their religion.
And as the brief on behalf of the Jews by Mr. Louis Marshall as amicus curiae equally shows as to his ancient faith.
Furthermore, it needs no argument, for it is indeed manifest that if the power of a state to suppress primary schools be unlimited, as the Attorney General literally asserts in the opening part of his brief, and as the advocates of this measure and counsel for the State of Oregon have argued in their briefs, and perhaps will argue orally, if such power be unlimited, where can it be stopped?
The state surely need not then stop at the age of sixteen or with primary education; it can at will similarly legislate as to secondary and preparatory schools and colleges, and suppress all the private educational institutions throughout the country , on the plea, as stated in the brief filed on behalf of the Governor of Oregon, that they may possibly teach prejudicial, unpatriotic, or subversive doctrines to the future men and women of our country; that they may become "red" and teach subversive and revolutionary doctrines, and that the re is no way to prevent these private schools "from being controlled and conducted" I am quoting their language-"by bolshevists, syndicalists and communists," as suggested on page 46 of their brief.
You are further asked in argument to assume without proof of any kind, that the private and parochial schools of Oregon may possibly be inferior to the public schools maintained in that state and that the measure was passed in good faith to secure a better education for the children of Oregon now attending private and parochial schools.
But I cannot, unfortunately, for want of time, argue any further upon that question, or show you how, in the Federal Census of 1920, for example, the fact was shown that 2,280 of the public schools in the State of Oregon were one-room schools, where all grades and both sexes were intermingled, and that 1,633 of the school teachers, fully 21 per cent, had not even had a training equal to a normal school or its equivalent.
The National Educational Association published these facts to the country, showing conditions not alone in Oregon but elsewhere that ought to be remedied, if the beneficent system of public schools was to do the work which it ought to do and which the taxpayers of the United states are now paying over one billion dollars a year to enable it to do.
I cannot likewise, for want of time, address my argument to the right to sue, or the alleged prematurity of the suit.
If your Honors desire any instruction upon that point, my associate, Judge Kavanaugh, will address himself to it.
But, to repeat, it is fully covered in the briefs filed on behalf of the appellee Society.
Nor shall I argue, because it is fully covered in our briefs, in refutation of the contention that we are not directly affected, because it is only the parent, the guardians and the custodians of children who are menaced with punishment as for a misdemeanor.
I have only time to refer to the case of Truax vs. Raich (239 U. S. 33), where Mr. Justice Hughes covered the point quite conclusively; to the case of the Evangelical Lutheran Synod vs. McKelvie, reported under the title of Bartels vs.< Iowa (262 U.S. 404), where Mr. Justice McReynolds again fully covered the point, and to the more recent case of Terrace vs. Thompson (263 U. S.197) where Mr. Justice Butler reviewed and analyzed the point and clearly showed that it was not necessary that the act apply directly to the complainant provided the necessary effect of interference with the constitutional rights of others was to affect and prejudice such complainant.
But our appellee Society has not only six parochial schools but five private academies, four of which are boarding schools: Hence, It literally comes within the language of the enactment of a person having control or charge or custody of a child.
Of Course if they did not send the children in their boarding schools to the public school of the neighborhood, they would incur the penalties of this enactment.
Again, as to the orphanage in Clackamas County: There 100 orphans between the ages of eight and sixteen are in the charge and custody of the Sisters of the appellee Society.
Of course, they have both charge and custody of these children; and of course they would directly incur the criminal penalties of this enactment if they did not send these orphans to the public school of the neighborhood.
And yet it appears affirmatively that there is no public school in 'the county that could hold them; that the same is quite true elsewhere, and that the state, in order to comply with this law, would have to expend over $4,000,000.
So the bill alleges and so the appellants admit.
The enactment now before the Court for consideration in its constitutional aspect affects and involves the constitutional rights of four classes of persons: that is, parents, children, teachers in primary grades, and owners of primary schools-and all the rights partake of the nature of the right of liberty and of the right of property; these rights are interdependent, and each, I submit, is protected by the Fourteenth Amendment from denial by a state.
First and foremost, the law involves the sacred rights of parents in the discharge of their duty to educate their children, a truly sacred right and duty, which Blackstone declared 150 years ago, and Puffendorf long before him, was the greatest of all the rights and duties of parents.
It next involves the right of children, for they often, as all parents well know, instinctively have decided preferences, to which frequently parents and guardians wisely conform.
What parent has ever dealt with the education of a child between eight and sixteen but what that element has entered into his fair and just consideration?
Is not the number of parents innumerable who have conceded something to the preference of their children as to the school they shall attend?
And yet it is said in one of the briefs filed on behalf of the State of Oregon that it is perfectly absurd to argue that children have any constitutional rights, or that they can be allowed to exercise any selection or preference as to the school they shall attend.
This enactment also involves the rights of teachers, men and women, who devote their lives to the noblest of all callings, the education of children; a profession which has existed and been highly esteemed in every age, in every country, and under every civilization, even long before Christianity; and which, to repeat, was recognized by Mr. Justice McReynolds in the conclusive opinion which he wrote in the German Language cases, not only as a noble profession, but as a most useful one.
And finally, it involves the rights of the owners and managers of schools who have devoted their property and their services to maintaining private schools, which have existed from time immemorial, and for three centuries have furnished the means by which the elite of the American colonists and of the American Republic since 1776, have so largely 'been educated and trained in the duties and responsibilities of life, citizenship and public service.
It would truly be no exaggeration to say that practically every member of the Constitutional Convention of 1787 had been educated in a private school, and mostly in a religious school, and that every signer, or almost every signer, of the Declaration of Independence had been similarly educated.
It is consequently no exaggeration for us to urge that no more far-reaching and momentous question, or one more closely affecting American institutions and the inherited rights or liberties and the freedom of conscience and religion of our people, or a greater number of the people of the United States, or one more deeply reaching to the very roots and springs of American constitutional liberty, and of all those sacred rights which free men cherish and free governments are established to secure and protect, has ever been submitted to this Court for decision.
And if ever these rights are denied, if that day shall ever come, our Governments will not be worth while striving to maintain for we shall no longer be free men or worthy to enjoy liberty.
I would, furthermore, like to analyze briefly the service rendered in the United States to education generally by private schools, and the universal recognition of valuable service by all American educators, by the officials of our National Government in charge of the United States Bureau of Education, by the leaders of the American Educational Association.
They all with one concordant voice declare, not only that the experimental work which has and is being done in private schools is of immense value to the community, but the fact that it is the work done there and the standards established in those schools that have lifted the standards of the public schools, and that if these private schools were abolished, as one writer says, there would inevitably follow the degradation of the whole public school system.
Your Honors, I want to point out for your reflection that Oregon was not choosing between two competing liberties which cannot coexist.
These liberties in education have existed practically for all time in this country and in other civilized countries.
The liberty to conduct a private school does not abridge or interfere with the liberty of the district or community to maintain a public school.
As private schools generally charge tuition fees and equally promote education, and the public schools are free, there is no interference or competition with the resources of the public schools.
In fact, the more children attend private schools, and there obtain a satisfactory education at least equal to the public school of the neighborhood, the less must be the public burden and tax levy.
The liberty of teachers who devote themselves to giving instruction to children in the primary grades of private and parochial schools does not surely abridge or interfere with the liberty of other teachers to give instruction in the similar grades of public schools.
The liberty of parents to send their children to private schools does not abridge or interfere in the slightest or remotest degree with the liberty of other parents to send their children to public schools.
The learned Attorney General further contends, that, in order to sustain this law, it is your duty to indulge in the presumption, as a matter of fact, that there did exist in Oregon exceptional circumstances.
But I submit that no such question can affect the fundamental question of power to suppress all private and parochial schools however well and competently conducted and that no such argument was submitted to the court below, where there was not the slightest suggestion or pretense either in argument or brief that the private or parochial schools were in any way inferior to the public schools, or that they were teaching detrimental doctrines.
In fact, Judge Wolverton in his opinion, after an experience of thirty odd years upon the bench in Oregon, repudiated the suggestion, and said that there was no proof whatever and that the contrary was the fact, in regard to the alleged inferiority- if that had been claimed and it had not been claimed-on the part of parochial and other private schools.
If your Honors please, I now want to refer briefly to another aspect.
It is, I must confess, with great apprehension and disappointment that I am compelled to gallop through this very important case in the limited time allotted to me.
Among other things, in the argument in support of this law by the promoters responsible for this law, promoters who, in one of the statements contained in this official pamphlet, are called "outside agitators," it was stated by them as follows.
"Our children must not under any pretext, be it based up on money, creed or social status, be divided into antagonistic groups, there to absorb the narrow views of life as they are taught.
"Against this proposal, which meant undoubtedly, if it had any sense or purpose, that the promoters of this measure wanted all the children of the state to be of one creed and of one religion dictated by them-against such a proposal the religious organizations of the state protested in this official pamphlet?
You will find the Evangelical Lutheran Synod protesting; you will find twenty-five Presbyterian Ministers protesting; you will find the Episcopal Bishop protesting; you will find citizens of all faiths protesting; you will find the principals of four non-sectarian schools protesting; you will find the Seventh Day Adventists protesting, and you will find the Catholic Civil Rights Association protesting.
The arguments in the official pamphlet should have and deserve the most careful study.
Yet it was argued yesterday to your Honors by the learned Assistant Attorney General that there was no religious issue involved.
Notwithstanding his brief, in which he raised the religious issue although it was not raised in the court below, he proclaimed to your Honors that he disclaimed any such intention of raising a religious issue on the part of the people of the State of Oregon, because, as he stated to you, they were a religious people.
Now, let me read to your Honors an extract which is on page 39 of our Appendix 1.
It is part of the noble and exalted statement issued by twenty-five Presbyterian Ministers in the State of Oregon.
MR. CHIEF JUSTICE TAFT: Is it an appendix to your brief?
MR. GUTHRIE: It is an appendix to my brief-at page 39 of Appendix 1.
MR. CHIEF JUSTICE TAFT:
MR. GUTHRIE: There are two to my brief.
Let me read from the protest of these Presbyterian Ministers.
"Whereas, much of the propaganda in favor of this bill has been conducted in the name of Protestantism, we the undersigned ministers, members of the Presbyterian Church, believe that the proposed legislation is inimical to the highest human welfare for the following reasons.
"1. It proposes to abolish one system of religious education and offers no substitute for it in any plan of religious instruction in connection with the public school system.
"2. It is based on the philosophy of autocracy that the child belongs primarily to the state; it is an unjustifiable invasion of family authority and threatens ultimately the guaranties of our American liberty.
"3. The proposed legislation in its conception, promotion and execution violates what we conceive to be the spirit of fraternity and brotherly love taught by our Master.
"Finally, if your Honors please, I hope to be able to complete in the nine minutes left to me the subject of religious liberty.
I may take two or three minutes more.
I pray that they will not be deducted from Judge Kavanaugh's time.
I am trying to limit myself to the time allotted to me.
MR. CHIEF JUSTICE TAFT:
MR. GUTHRIE: I think that five minutes (not taken out of Judge Kavanaugh's time) would enable me to complete this very hasty and imperfect presentation.
In discussing the question of religious liberty, which has been thrust into the case for the first time by the briefs filed on behalf of the Attorney General and the Governor of the State, I shall not fail, of course, to appreciate that this Court sits in impartial judgment upon all religious-upon all faiths and creeds.
The Attorney General 's brief concludes with the concession, on page 72, to which I have already referred, that the reason why the people of the State of Oregon, under their initiative powers, have enacted this law is apparent; and he then proceeds to assert that this reason is that parents were sending their children of public school age to private schools-and I am now quoting his language-"in order that it may therein give sectarian religious instruction which is prohibited in the public schools.
"And hence his idea and logic seem to be that liberty of religious teaching should not be upheld or permitted, because, as he continues- I am still quoting his language-"The right demanded by appellee is denied to all whose children attend the public schools.
"This is followed by the statement, as if to emphasize and avoid any possible doubt as to his meaning and intent (p. 78), that "it does appear that the liberty claimed to be denied' by such a law is liberty to give sectarian religious instruction in connection with common school training; a thing which no one would have the temerity to demand as part of the course of inst ruction in the public schools.
"In other words, the argument of the Attorney General is that, because religious inst ruction cannot be given in the public schools under the Constitution and laws of Oregon, the state may forbid its being given anywhere else Could there be a plainer confession of the truth than we find in the Attorney General's candid brief, that the underlying motive and the immediate intent and purpose of this measure were anti-religious and to prevent religious instruction to children- as much so as any atheistic or sovietic measure ever adopted in Russia?
On the other hand, in the brief filed on behalf of the Governor of the State of Oregon, there is stated, as an argument in support of this law, that your Honors should appreciate that the vast majority of private schools of our country are now religious schools.
And then the learned counsel of the Governor proceed to assert (at p. 62) that if the character of the education of children is to be entirely dictated by their parents, they may be instructed in disloyalty, and taught "that the claims upon them of the religion to which they belong are superior to the claims of the United States.
"And further these learned counsels assert practically that the children at religious schools "may be intentionally mistaught as to the true character of the Government and history of the United States.
The Governor's counsel then proceed to make in their brief the extravagant and preposterous assertion that , if this law be not held constitutional by your Honors, " there is no legal principle on which any existing public school law in the United States can be upheld.
" I am quoting their language.
And thereupon the Governor's counsel warn your Honors that if this question be held by your Honors to be within the field of Federal protection of constitutional rights, such a decision "can only mean the spread of this bitter question all over the United States in the conflict over another proposed amendment to the Constitution.
"And what is lithe bitter question" in counsel's mind who wrote and printed that statement if it be not the religious question?
In conclusion , the counsel for the Governor of the State of Oregon venture to state to your Honors in their brief (and I am again quoting their very words) that "the court might almost take judicial notice of the certainty of the introduction of such an amendment in case the Oregon law is declared unconstitutional.
This case, if your Honors please; has lifted counsel, and, I profoundly believe, the court likewise, into the highest plane and realm of constitutional jurisprudence.
In underlying and vitalizing principle, It involves infinitely more than all the wealth of the United States.
It involves religious liberty, freedom of conscience: freedom of education, and the right of parents to bring up their children in the faith of their fathers.
As counsel at your bar, I appreciate how inadequately I have been able to present this great question on behalf of the Sisters of the appellee Society.
It is a noble professional privilege and a high professional honor to plead before you on behalf of the men and women who are devoting their lives all over the United States to the instruction of children and to their moral training and discipline in the doctrines of religion.
It ought, indeed to be a glorious and inspiring professional privilege.
I have not time to discuss fully, although I should like to do it this can't of Americanization on the part of the promoters of this un-American measure.
Imagine destroying the most valuable right that we Americans have inherited from the inspired generation that established this Government-imagine destroying the right to religious liberty and freedom of education in the name, in the cant, on the pretense of Americanization, with the wickedly false cry that they who seek to close all private and religious elementary schools are the only true Americans, when the whole history of our country cries out against this pretense, particularly so in the face of the great roll of men and boys belonging to the ancient faith of these holy Sisters, who volunteered in the last war, who served in it so gloriously, who showed the extent to which they were ready and willing to sacrifice, how they were ready to die for our country, whilst many of the people who are now agitating this movement and loudly canting on Americanization remained safely at home.
In his Immortal Farewell Message, from which we have quoted in our brief, Washington told us for all time that the principal pillar of Government was religion, and admonished us to maintain It.
And only a few days ago, his latest successor President Coolidge, in lofty and noble words at his inaugural told us that the fundamental precept of liberty is toleration; that we cannot permit any inquisition either within or with out the law or apply any religious test to the holding of office; that the mind of America must be forever free ; that its Government will continue to stand desiring the advancement of religion, and that she cherishes no purpose save to merit the favor of Almighty God.
If I do not magnify, I profoundly believe that a decision upholding this law as valid would be the knell of freedom of conscience, of freedom of education, and of religious liberty in the United States.
But the Gospel of last Sunday tells us, sacredly and inspiringly (to paraphrase but one word) "Blessed are they who hear the word of the Constitution, and keep it.
On behalf of the private and religious 'schools throughout the country, I submit this great cause, destined in its decision to do incalculable good or harm in maintaining or subverting religious liberty and the freedom of education for centuries to come, with faith in the Constitution unfaltering and “triumphant o'er our fears.
MR. CHIEF JUSTICE TAFT:
MR. KAVANAUGH: I believe five minutes of my time is already gone.
I will probably—
MR. CHIEF JUSTICE TAFT: No; you have the full half hour.
MR. KAVANAUGH: Now, if your Honors please, I believe that the decision of this case depends upon the application of a very few principles.
They are so well settled by the former decisions of this Court that rediscussion of many of them would be futile.
First of all, this appellee, and all other corporations and individuals of the State of Oregon similarly situated, are engaged in a useful and lawful occupation.
It is one of the noblest of all human callings.
And the Constitution casts the mantle of its protection over that sort of activity.
When a law is passed which unreasonably regulates or which attempts to destroy a useful occupation, it at once occurs to the legal mind that such a law is an improper exercise of legislative power, and that it is unconstitutional and void.
The rights here involved are vital and fundamental.
They are inherent, and not derivative.
These natural rights existed before constitutions were made; and they will exist after constitutions are dissolved.
They were not created by constitutions, but they are certainly secured and protected by them.
These schools, by the admissions in this record, have all been well conducted.
They are at least equal to the best public schools of the State of Oregon.
There is no complaint lodged against them.
The proponents of this measure point to no evil that ought to be remedied; they suggest no abuse that ought to be removed.
The measure does not purport to regulate.
It was not designed to improve.
Its single purpose was to suppress and destroy.
And in that work of destruction, your Honors, it aims to destroy private schools of all classes, however efficient they may be in educational instruction and in cultural value.
If a private school be superior to the public school in a particular district, the children would still be required to attend the inferior school.
I cannot agree with the Attorney General when he says that all of the public schools of Oregon are of a superior quality and conform to a uniform standard.
In the nature of things, that cannot be.
The little school districts in the wild prairies and in the dense timbered areas of Oregon (for Oregon is a state of wide areas and small population) have great difficulty in maintaining their schools.
Some of them are conducted in part by private subscription.
The district trustees do the best they can.
But they have not the funds available to employ competent teachers.
MR. JUSTICE MCREYNOLDS: Well, would that make any difference in your view?
MR. KAVANAUGH: It would not make any difference in my view.
I am speaking now of the public schools.
MR. JUSTICE MCREYNOLDS: Well, but suppose they had the best public schools that could be obtained, and had all the money they needed behind them?
MR. KAVANAUGH: It would not make any difference.
MR. JUSTICE MCREYNOLDS: I was trying to find out if it would make any difference.
MR. KAVANAUGH: I was saying that, even if private schools are superior in certain localities-and they are superior in places and thrive by that superiority- they would have to go the way of all private schools.
There is no distinction, no rule by which one can determine the kind of school that ought to be suppressed, but it is the purpose to suppress them all.
It was never intended as a regulation.
It was intended as a complete elimination of all private primary schools in the State of Oregon, and that would be its inevitable effect.
That was conceded by the Attorney General today.
Now, this kind of a measure is not a legitimate exercise of the broad and undefined police power of the state.
Schools are subject to reasonable regulation, on account of the nature of their service.
But the power to regulate is not the power to destroy.
There is no evil that could possibly develop in these schools that could not be remedied or corrected by regulation.
It is admitted that there are none now.
But even if there were, regulation could control them.
And if regulation can control the evils that might attend the employment agency business, a business that is subject to abuses, certainly regulation can correct any mistakes or imperfections that may appear in any system of schools.
There is no perfect school system.
Such a system cannot be created or established.
The public schools have not reached a level of settled perfection.
Nor have they yet so far approached perfection that they can properly be imposed, as the sine qua non for the education of all of the children of the state.
We conform to reasonable regulation.
We comply with all the regulations of the state.
We are in favor of compulsory education.
The state has a right to impose that.
Education is primarily a parental duty.
But the state has the right to force the delinquent parent to give his children an education.
And with that in view, it establishes free schools, so that parents will have no excuse for not performing that essential parental duty.
The private school has a venerable history.
It has existed in this country from the beginning.
Before the foundations of our Government were laid, it was engaged in the worthy work of imparting inst ruction to the men who later breathed into this nation the breath of life.
And from that elder day until our own time, it has continued this worthy and fruitful service without interruption.
When the public schools were later established, the two systems worked side by side in harmony and social peace.
Each profited by the example of the other.
And some of the greatest strides that the public school has taken it owes to the private school On account of its nature, it was easier for the private school to practice experimentation.
And many of the wisest regulations now in force in public schools were introduced and perfected in the private schools.
The great educators of this land, men who are entitled to speak with authority, as well as the National Educational Association, all condemn this kind of measure and say that the greatest misfortune that could happen to this country that could happen to the public schools even, would be the destruction of the private schools.
From small beginnings they have grown until many have become the greatest foundations in this land.
They could not be destroyed with out leaving a void that could never be filled.
And if there be the power in the state to destroy the private primary school, that same power could later destroy the great private universities, and require all children to attend state conducted schools.
Once that power is conceded, who will shorten its arm?
It is a dangerous power, a power that was never contemplated by our constitutional guarantees.
Now, your Honors, a private school that conforms to all the regulations of the state; that carries the full course of studies provided by the state; whose students graduate into the public high schools of the state, is also performing a real service if it gives religious instruction and moral training to the children.
It is always a benefit if intellectual light be blended with the light Divine.
One of the greatest perils in this country today, one of our most serious problems, is that we are unable to give proper religious instruction and moral training to our children.
Again, I shall have to disagree with the Attorney General, much as I dislike disagree with him, because he has tried to be so fair in the performance of public duty here; when he says that acts of the legislative assembly which are being enacted now, one of which was .
enacted last month in the State of Oregon, permitting children in the public schools two hours each week in school time to receive religious instruction, bear any relation to a law of this kind.
Those laws merely reflect the view of the serious minded men and women of this country that religious instruction and moral training must be given to the young, during the plastic years of life, or else we shall raise up a race of materialists who will have no reverence for any authority, either human or Divine.
We are returning to the spirit of the early time as best we can and we are endeavoring by this later law to enable the students of the public schools to receive the religious training they ought to receive.
That law is not a compliment of this measure under discussion.
It was passed under absolutely different conditions.
The school measure which we are attacking here was passed in November, 1922.
That law, after a change of sentiment in the state was passed in February, 1925.
The court below entertained this suit, although the Jaw would not go into effect until some time in the future.
This is an unusual law.
Its period of suspension covered a long time, and it was unusual in that respect.
If we search the decisions, we will rarely find a law where the period of suspension was as long as this.
But there was a particular reason for that.
It would take the private schools a long time to adjust their affairs to meet the new conditions; to liquidate their properties and to salvage whatever remained of their private primary schools, without too great a loss.
The state required a considerable time to construct new buildings and make provision to accommodate the great influx of children from a new source, over and above the normal increase from year to year.
And it was said at the time that this period of suspension was inserted in the statute for those purposes.
But it produced a strange and perhaps an unexpected condition.
As soon as the law was passed, private schools began to languish and decline; their patronage began to fall away; and they suffered actual, progressive and accelerating injury during all of the intervening period.
So numerous were these withdrawals, due entirely to this law and to the threats to enforce it, that they would have been obliged to close their schools before the period of suspension expired.
And with that condition existing; with the grim alternative presented, either to comply with the law regardless of its invalidity, or else to close their schools before the effective date of the statute, and suffer irreparable loss without any remedy at law, we appealed to equity for relief.
In the application for equitable relief in these circumstances, the thing the Court is most interested in is the actual Injury sustained.
Time is relative as compared with Injury.
One is not obliged to wait until the lethal blow shall fall.
He has a right to proceed 'as soon as the axe is laid at the foot of the tree.
That may be soon or it may be late.
But if the damage is actual and progressive and irreparable because of the threats to enforce an unconstitutional law, and there be no adequate remedy at law, the great controlling question is the injury actual or impending.
And if we had permitted that period of suspension to expire, there would have been no schools to save.
In that desperate situation presented to the court below, and by it fully appreciated, the court granted us an interlocutory injunction; and that injunction was the only arresting Influence that has come in this decline.
After that Injunction; the withdrawals were decreased, and some students returned.
Now, your Honors, there is no present emergency for this legislation.
I concede that, in an emergency, the state has great powers.
But there has not been a word spoken, not an argument advanced which shows that there is any emergency at all.
And there is no danger, either actual or potential, in the conduct of these schools.
The percentage of students attending the private schools is very small.
And Oregon is a state that is populated chiefly by native-born.
The foreign-born population is small, and is quite negligible.
MR. JUSTICE MCREYNOLDS: I will ask again, if you think that affects this question?
MR. KAVANAUGH: Not at all, except that it is referred to in the briefs.
MR. JUSTICE MCREYNOLDS: As I understand you, you argue that this thing cannot be done under any conditions?
MR. KAVANAUGH: Not under any conditions.
There is another reason why this law is unconstitutional and void.
It violates the contract between the State of Oregon and the appellee.
The appellee was organized and incorporated under the general laws of the State of Oregon, for the express purpose of conducting schools, and of purchasing and acquiring property for school purposes.
There was then in the state no reserved power to alter or amend or repeal the charter of a corporation.
It is not the same condition as that presented in the Berea College case.
The court of last resort in Oregon has held that the state may not, by subsequent legislation, alter or impair the corporate rights invested by the corporate charter.
Of course, the police powers of the state cannot be bargained away; and the state has the power of reasonable regulation.
But as has been shown, this is not an act of regulation.
It is an act of destruction.
It destroys completely the very beneficial interest that was granted by the franchise of the State of Oregon to this appellee.
The Supreme Court of Oregon has held at different times, not only that the rule in the Dartmouth College case is enforced strictly in that state, but that even interfering with the corporate name of a corporation is in violation of the contract with the state.
The State of Kentucky had held, prior to the Berea College case, that there was a reserved power in that state by which subsequent legislation could alter or change the corporate charter.
And that is the basis for the decision of this Court in that case.
But this Court, and all Federal Courts, are bound by the decisions of the state courts on questions of this nature.
The rule in Oregon is in accordance with the rule in the Dartmouth College case, that a regulation which unreasonably interferes with the beneficial interest carried by the corporate franchise is in violation of the contract clause of both the Federal Constitution and the Constitution of Oregon.
In conclusion, your Honors, we contend that this appellee is invested with an inherent right to conduct its private schools; that the State may regulate to any reasonable degree, with any sort of regulation that bears a reasonable relation to the public health, the public morals, or the public welfare.
But that this is not an act of regulation, but an act of destruction; that it violates the inherent and fundament al rights of this appellee; that it takes property without due process of law, and that it violates the contract between it and the State of Oregon.
And so we submit that the decree of the court below should be affirmed.
We repair with confidence to the Constitution.
It was the first hope of the Fathers.
It is the last refuge of the persecuted and the oppressed.
MR. CHIEF JUSTICE TAFT: Senator Chamberlain.
MR. CHAMBERLAIN: May it please the Court: I have about how many minutes?
MR. CHIEF JUSTICE TAFT: You have 40 minutes.
MR. CHAMBERLAIN: If the Court please: I want in the outset of my argument to challenge the statement contained in the brief of the appellee, that there was any effort or purpose whatsoever upon the part of counsel for the Governor of the State of Oregon to libel the Catholic Church, or any other church, in anything that was said in that brief.
Personally, I am not a member of any church- I am sorry to say-and I have no feeling of animosity toward any church.
I believe that they are all working along different roads to reach the same goal; and I would be the last person in the world (and I am sure my associate would be) to say anything that would reflect upon the efforts of any church to raise the moral standards of the young men and women of the world.
That statement has been made, however, in the brief of the appellee; and I feel that I ought to and I do challenge the statement; because there is nothing in the brief filed by us that indicates any such purpose or intent.
In what I may have to say, however, I shall undertake to be frank with the Court; and I may be led, possibly, to make some criticisms of church methods and church laws, in view of the course that this argument has taken.
But I feel it my duty to do that under the circumstances, and to talk plainly to the Court.
There was not anything in either of the briefs, either that filed by the Attorney General, or that filed by us, that had any religious significance.
That question has been injected into this case, if your Honors please, by counsel who have discussed the case for the appellee.
It is insisted very strenuously, and it is a large part of the argument of counsel who first addressed the Court, that this law violates the right of the parent, the liberty of the parent, to educate his child as he sees fit; that it violates the liberty of the child; that it violates the liberty of the teacher to pursue his avocation; and takes the property and rights of the appellee without due process of law.
As to the last two of these propositions, I will have little to say, in the case now being heard, because my associate will discuss them in the case of the Hill Military Academy, next to be heard; and in order to relieve this Court as much as possible, we have divided our work so that there will be only two counsel on our side in the latter case as well as in this.
I am leaving, therefore, a good deal of what I might otherwise say to my associate.
"Thus far" (says counsel in his brief), "we have considered the enactment in suit only in reference to the rights of the private and parochial schools and the teachers they employ.
But there is involved in the case at bar a far more important group of individual rights, namely, the rights of the parents and guardians who desire to send their children to such schools, and the rights of the children themselves.
Reflection should soon convince the Court that those rights which the statute seriously abridges and impairs-are of the very essence of personal liberty and freedom.
These rights-important, we concede-the Oregon statute does not abridge; but it protects the rights of the children in the right to free education.
The power and right of the state to control the education of children is challenged by counsel; and he insists most persistently that the state has no such power, but that the parents have the sole right of control, and that it is their constitutional right and a liberty guaranteed by the Fourteenth Amendment to educate their children as they will.
Now, if your Honors please, that position is in direct opposition to the Canon law of the Catholic Church.
It is provided by the law of that church, Canon 1374, that "Catholic children must not attend non-Catholic, neutral or mixed schools; that is, such as are open to non-Catholics.
It is for the Bishop of the place alone to decide, according to the instruction of the Apostolic See, under what circumstances or with what precautions attendance at such schools may be tolerated without danger of perversion of the pupils.
"I mention that, your Honors, to show that the Canons of the Church under whose jurisdiction the appellee operates take away from the parents the control of the education of the child, and absolutely dictate what school the child shall attend.
So that, as between the church itself and the state, we insist that the state has the prior and paramount right to direct the education of the children in the state.
In the one case, a violation of the Oregon statute is punishable as a misdemeanor.
In the other, I do not know what punishment may be meted out to those who violate the laws of the church; but the control by the church is certainly asserted and asserted most strenuously.
And I mention this and quote the law of the church, if your Honors please, because counsel have insisted that it is the right and duty of the parent himself to control the education of the child.
I question the right of the Catholic, or any other church, to insist that its communicants and adherents have the absolute right to send their children wherever they please to be educated in the elementary grades, and I challenge the statement, that there is any liberty to the parents or to the children under the rules of the church.
As between the two, the church and the state, the state has the paramount right.
In support of their position, as to the absolute right of control by the parents of the education of their children, counsel have cited, on page 66 of their brief, the case of Tillman vs. Tillman, 26 L. R. A., 781.
MR. CHIEF JUSTICE TAFT: In what court was that?
MR. CHAMBERLAIN: custody after the death of the father to a person other than the mother.
The court was dealing with the autocratic power of the father, attempted to be exercised in opposition to the rights of the child and its mother.
"In the -right of freedom from unlawful restraint is embraced the right to the enjoyment of all those privileges and immunities which belong to the citizens of a free country.
These privileges and immunities are, from their nature, incapable of limitation by exact definition.
For the purpose of this discussion, it is sufficient to say that they clearly embrace family rights; that is, the right of parents to the care and custody of their children, and the right of children to receive from their parents maintenance and care.
"But beyond this"— Says the court- and that doctrine has not been departed from by this court, so far as I have been able to find-
"But beyond this, there is a liberty of children, above the control of their parents, which the courts of England and this country have always enforced.
"This liberty of the child, the right to be free from such illegal restraint of the parent, the Constitution forbids to be taken away except by due process of law.
Within the protection of this provision of the Constitution fall also certain rights of the parents against each other with respect to the custody of their children.
"The rights of the father and mother are both subject to the still higher right of the child to have its welfare safeguarded.
It seems perfectly clear that the general assembly cannot empower the father, at his own will, to deprive the mother and child of these legal rights, so long established as elements of personal liberty.
"Counsel also quoted in his brief the following statement: "If a state takes hold of the child, the father is no longer free, and tomorrow not a trace of liberty will be left.
"Jules Simon in "L'Ecole.
"My comment on that, if your Honors please, is this: It is curious that counsel should quote this language in support of his position.
The author of it, Jules Simon, was a French statesman and philosopher, who held the portfolio of education in the first cabinet of President Theirs of the French Republic during the years of 18711875.
"He advocated free primary education, yet sought to conciliate the clergy by all the means in his power; but no concessions removed the hostility of Monsignor Dupanloup, who presided over the commission appointed to consider his draft of an elementary education bill.
The reforms he was actually able to carry out were concerned with secondary education.
”Thus, it will be seen that the language used by Simon was used in arguing against the ecclesiastical idea of education which is being urged by counsel for the appellee is this case.
It will be noted that the ecclesiastical authorities in France prevailed over the contentions of Simon, with the result that France is not yet free from the controversy on this subject, and it is raging just as strongly today as it did in the days gone by.
I am a little surprised at the quotation from that author under these circumstances.
It reminds me of the statement that I once heard, that a man could take excerpts from the Scripture itself, and prove by it that suicide was advocated and taught by it.
Counsel says that in this day and under our civilization, the child of a man is his parents’ child and-note the term-not "the State's.
" The term lithe State" or lithe States" is used frequently in the brief; and reference is made to medieval times and the days of the Holy Roman Empire, and other periods of history.
That is not the correct idea of the state which forms a constituent part of the United States of America.
The term "State" at all periods of the world's history prior to the formation of the United States meant an autocratic authority of some kind.
The term "State" as used in the Constitution of the United States and in the guarantee of a republican form of government embraced in the Constitution, means a society such as was described in "The Federalist," by Mr. Madison, at page 39.
I will not undertake to read it; but he defined what a state is under our Constitution; and it differs entirely and materially from the idea of a state which existed prior to the adoption of our Constitution.
As a matter of fact, the kind of state, which was described and advocated by Madison is just such a State as Oregon is now although it is denounced by counsel for the "bad eminence" it has attained in enacting the law under discussion; but I am accustomed to hearing the state denounced and it is all because it has dared to adopt a progressive constitution and to enact progressive legislation.
It was at one time called "the fool of the family" by many, because it adopted the plan of electing a legislative body pledged to the election of the popular choice for Senators, and also adopted the initiative and referendum amendment to the state Constitution which was finally approved by this Court, and which since has been followed by nearly every state in the Union, in some form or another.
Mr. Justice Sutherland (interposing).
Did the court approve it?
MR. CHAMBERLAIN: This Court?
MR. JUSTICE SUTHERLAND: Yes.
MR. CHAMBERLAIN: The initiative and referendum?
MR. JUSTICE SUTHERLAND: Yes.
MR. CHAMBERLAIN: Yes.
It was submitted and argued, and the question of its constitutionality was decided by this Court, and it was sustained.
MR. JUSTICE SUTHERLAND: I thought the Court declined to consider that question; but I was not sure about it.
MR. CHAMBERLAIN: My understanding is that we are acting under that now, under this decision of the Court.
MR. JUSTICE SUTHERLAND: Yes; but the Court did not consider the political question, as I remember; I may be wrong.
MR. CHAMBERLAIN: I was here when it was argued; but I really have forgotten exactly what the decision was.
I remember its general effect.
In any event, the amendment has never been disturbed by the people or by the courts.
MR. CHIEF JUSTICE TAFT: I think it was argued on the objection that it was not a republican form of government, and that that question was a political question which this Court could not consider.
MR. CHAMBERLAIN: I believe that is correct, your Honor.
For the moment I had forgotten just what the basis of the decision was.
I know the people of Oregon are acting under it now; and it was under that very initiative amendment to the Constitution that this law that we at discussing was enacted.
And it is this form of state which is meant when I speak of the "State" in this case; it is the form of state where the majority of people have the right of control of themselves and of their affairs.
If, therefore, counsel, will strike out of their brief all discussion with reference to the "State, "except that which relates to this particular kind of state, there will be very little left of their argument.
And yet he makes constant use of the term "the State," although he makes reference to periods in history before there was any such thing as a "State" in the sense in which it applies here; and when there were no "States" other than the autocratic or ecclesiastical or other similar kind of a "State.
"Counsel on page 67 of his brief, speaking of the legislation under consideration, refers to the “State-bred monster,” a creature which “could readily be turned to whatever use a tyrannical government might conceive to be in its own interest.
"Take away from the parents all care and concern for their children's education, and you make a social life an impossible and unintelligible notion.
"CITING PUFFENDORF’S LAW OF NATURE AND NATIONS
Puffendorf, if the Court please, wrote his book in 1672; and the language used by him and quoted here was used with reference to the tyranny of the ecclesiastical system of education in effect in the Empire of Austria during, perhaps, the worst period in its history; and he was denouncing and attacking with remarkable vigor the policies of the ecclesiastical system.
No greater condemnation could be uttered against the system of parochial schools, such as maintained by the appellee in this case, than the language of Puffendorf, if he is to be relied upon as an authority in this case.
If the Court considers that Puffendorf's language is at all applicable to present day conditions, it can only be for the purpose of reaching the conclusion that the evils sought to be remedied by the Oregon law are still in existence.
Reference is again made by counsel in his brief, in the very next sentence, to the idea attributed to appellants, that the children belong to the state, as in Plato's "Ideal Commonwealth" or in Soviet Russia.
Any such comparisons may be dismissed from the mind at once as being wholly inapplicable; because the Government of the United States, and those of the several states, are as far removed from the "Ideal Commonwealth" of Plato as they are from Soviet Russia; and our state government resembles neither of those, except that it has invoked opposition of some of these ecclesiastical bodies.
And when I speak of ecclesiastical bodies, I do not mean particularly the Catholic Church; I mean other churches as well.
And there is not any difference between them; when they have the power to exert their influence and control they do not hesitate to use it.
Other instances might be cited of like inapt quotations from other writers.
The most conspicuous instance is the reference to the Belgian savant and statesman, Van Humbeeck.
And there are other citations or excerpts from the writings of men who opposed the very principle that counsel is now contending for, and yet he quotes from them to sustain his views.
By taking excerpts from any historical writer or any philosophical or other writers and putting them together, you can prove almost anything; and counsel has undertaken to maintain his position by citing excerpts from the writings of men who opposed, up to the time of their death, the very proposition which he is now insisting upon.
Now, if your Honors please, another unfortunate illustration in the brief of counsel is the reference to John Stuart Mill.
John Stuart Mill never saw the inside of any school house, nor mingled with the common herd at any time.
He was educated exclusively by his father; and until he reached almost manhood, he knew nothing except the Latin language.
If he has attained a high position as a philosopher, it has often been said that it was in spite of and not because of his education.
To speak of Mill as an authority on education when one is speaking of the educational system of the United States is inexcusable.
The quotation from the Encyclopedia Britannica, on page 76 of counsel's brief, points out the distinction for which we are here contending; it says that it is the duty of the state to insist upon a certain minimum of education for every citizen.
"That does not necessitate a monopoly of education on the part of the state, such as was claimed by the Napoleonic despotism under the traditional influence (it would seem) of the old authoritative Gallo-Roman tradition.
"It is emphasized again and again in the brief that the parochial schools teach the same things, have the same courses of study, and use the same methods of teaching as do the public schools.
If that is so, what is the objection to sending the children to the public schools?
The public schools do not teach religion; and the appellee would be most strenuous in its opposition to such a course if it were attempted.
Why does counsel for the appellee insist on depriving these children of the benefits of a public school education which follows from association of children with other of their own age and kind?
There can be but one answer: It is to stamp upon its children a distinction which is to set them apart during the rest of their lives, and to make them other than they would be if they grew up in the atmosphere of the democracy of the public schools.
Counsel says there is not a thing in this record that will disclose to the Court any reason for sustaining the constitutionality of this act.
The official arguments which ware submitted to the people when the law was to be voted on are a part of the record in this case, brought here by counsel as a part of his addenda; and I believe a part of that is printed in the brief of the Attorney General.
The reasons for the law and the reasons in opposition to the law are there stated; and this Court has before it everything that was said officially either for or against it, under the Constitution of Oregon.
And who can tell; who knoweth the mystery of the human will?
was reached by the voters of the State of Oregon, buy such a large majority?
In my candid opinion, may it please the Court-and we all have the right to draw our own conclusions from what has been done, and this Court does it at times-my own opinion is that there was an intense feeling upon the part of the people of Oregon that there should be a greater democracy cultivated amongst the people, and for that reason the school law involved was adopted.
If I may be excused for a personal reference, I raised six children, and I had them educated in the public school, up through the eighth grade.
And I feel that the average voter had the same view about it-because it brought the child in contact and touch with rich and poor alike, and with those of different religious faiths, and taught him when he went out into the world to be tolerant of the views of others, whether political, sectarian, or otherwise.
So, in my humble opinion, after reading the arguments for and against this law, it was adopted for that very reason-not to Americanize particularly, but to democratize the children, and to cut out this social and group class feeling that exists when they attend any sectarian or private school.
Now, if the Court please, I desire to protest against the argument of appellee that this law interferes with religious freedom.
The Court knows that the religion a man has he learns at his mother's knee.
Most, if not all, of the Justices of this Court are graduates of some college, either sectarian or non-sectarian; and you know from your own experiences that, whatever your religious views may be, you learned them at your mother's knee, and not at any school or college.
The religious instruction which a child so receives at home is not interfered with, nor is he prohibited by the Oregon law from attending the church of his choice.
He can attend any church he pleases; but during the years from eight to sixteen, for the purposes which, as I have stated, I believe the law as enacted, he must attend the public school.
Counsel says that the law is an invasion of the liberty of the parent as well as of the child.
I say it is not such an invasion; nor is it a taking of the property of the appellee without due process of law.
The first compulsory school law in nearly all of the states, was opposed in some quarters.
Not a single progressive movement has been taken in the cause of education, or any other great cause, without protest.
Now, Oregon may have the unpleasant eminence that counsel speaks of; but Oregon has been doing a good deal of thinking for itself during the past ten or fifteen years, and her progressive steps have been followed, in a great many instances, by the older states, which have been too busy to do their own thinking.
The property of the appellee is not destroyed, as insisted by counsel.
The number of children in attendance at appellees' schools is not large.
Slight alterations in its buildings, therefore, if need be would fit them for the education of children after they get out of the public schools, or before they go there.
The property is not destroyed, and is not materially impaired.
Now, that brings us to the proposition which was insisted upon a few moments ago by my friend Judge Kavanaugh; viz: That the Oregon law impairs the contract between the state and the appellee; and he cites the celebrated Dartmouth College case in support of his position.
Now, if the Court please, as was said by this Court in the case of Stone vs. Mississippi, it is too late now to raise any question about the doctrine laid down in the Dartmouth College case.
But it must he admitted there have been modifications of it; and Judge Storey's opinion in the same case has furnished a rule which the states have followed in the enactment of Constitutions and laws to enable them to alter, amend or repeal corporate charters.
The Charles River Bridge case and others shortly following the Dartmouth: College case, modified, measurably, the decision in the latter case.
In Stone vs. Mississippi, if your Honor please, the court said that it was not the charter, which the decision in the Dartmouth College case protected, but it was the contract made legally under it.
And what was the particular contract here in this case, or involved in this case?
It has not been pointed out.
The Oregon Constitution which was in effect at the time the charter was granted to the appellee provided that "corporations may be formed under general law; but shall not be created by special laws, except for municipal purposes.
All laws passed pursuant to this section may be altered, amended, or repealed, but not so as to impair or destroy any vested corporate right s.
"The appellee was created under the general laws of the state; and this Court-is my time up, your Honor.
MR. CHIEF JUSTICE TAFT: No; you have ten minutes left.
You close with the adjournment of the Court.
MR. CHAMBERLAIN: Thank you.
This court in the case of the Oregon Railroad and Navigation Company vs. Oregon Railway Company, construed this provision of the Oregon Constitution, and held that in view of the way corporations were organized in Oregon, it had to be construed strictly against any rights that were claimed under charters obtained under the general laws.
All that was required in Oregon was that three or more persons associate themselves in the formation of a corporation.
And can it be held for a moment that anything they assert in the charter will be absolutely binding' upon any subsequent legislature or upon the courts?
"Corporations may be formed under general laws, but shall not be created by the legislative assembly or by special law.
The legislative assembly shall have power to amend or repeal any charter or act of incorporation for any municipality, "etc.
So that the Constitution was changed and permitted without restriction subsequent legislatures to do what they pleased with reference to these corporations by alteration, amendment or repeal of their charters.
Now, the Legislature of Oregon saw in 1915 that that provision of the old Constitution which prevented the impairment of vested rights had been left out of the new Constitution; and enacted a law which practically contains the same thing as the original Constitution.
And that is, that corporation can only be formed under general incorporation laws of the state; but the right to impair vested interests in corporations was denied.
If the Court please, in the case of Stone vs. Mississippi, to which I referred a few moments ago, it was said that it was not the charter itself that was protected against change or modification, but it was the contract that had been made pursuant to it.
Now, I do not know of any contract that was made under this.
I deny therefore that one was impaired or that the property was destroyed at all or taken without due process of law.
MR. JUSTICE SUTHERLAND: Do you mean the physical property?
MR. CHAMBERLAIN: Yes.
MR. JUSTICE SUTHERLAND: Could they take the right to use it?
Or is not the right to conduct a school itself a property right?
MR. CHAMBERLAIN: I claim that they can use it now, if your Honor please.
I have no doubt about that.
The number of children attending those' schools between the ages of eight and sixteen is small; so that the schools could be converted, if need be, and would not need to be used for any other purpose than in connection with schools.
MR. JUSTICE SUTHERLAND: That is only a partial deprivation; is that your idea?
MR. CHAMBERLAIN: Well, I would not put it as strongly as that, if your Honor please.
This Court has held in a number of cases that the indirect losses which come from the exercise of the police power cannot be complained of by the parties affected.
Now, if it is within the police power-and we claim that it is-and, if there is some slight loss to the appellee, it cannot complain.
The police power is rarely resorted to where some loss does not occur, no matter what the business is which is attempted to be regulated.
I admit and it goes without saying that there must be a reasonable ground for the exercise of the police power.
It must not be arbitrary or unreasonable; and there must be some relation between the evil sought to be cured, and the means adopted by the act to cure it.
But I claim that that all exists in this case.
Now, there are some cases that I would like to call to the attention of the Court; but my associate, Mr. Putney," will discuss them.
• Transcript of remarks not available as no stenographic record was made of the oral arguments in the Hill Military Academy case (No. 584).
When he comes to take up the other case-that of the Hill Military Academy.
not interfere with the right of the adherents of any sect or creed to worship God according to the dictates of their own conscience.
In conclusion, I claim that the rights of the parents are not invaded by the Oregon law; nor are the rights of the children interfered with; but they are rather protected thereby.
And for the reasons which I have stated, I claim further, there is no taking of property under the statute without due process of law.
The eminent Justice asked if I would concede that there was a partial taking of property?
I do not concede that; because the property can be and is being used for school purposes.
Again, I claim that there has been no impairment of any contract between the state and the appellee.
I submit this case to your Honors, confident in the belief that you will give it that careful consideration which you give to all these cases, and will reach a conclusion that is proper under all the circumstances.
(Thereupon, at 2 o'clock p. m., the Court took a recess until 2.30 o'clock p.m., after which the court proceeded to the consideration of other business.)