Leoles v. Landers

• Docket Number: 11796.
• Decision Date: 13 May 1937
• Citation: 192 S.E. 218,184 Ga. 580
• Parties: LEOLES v. LANDERS et al.
• Court: Georgia Supreme Court

192 S.E. 218

184 Ga. 580

LEOLES v. LANDERS et al.

No. 11796.

Supreme Court of Georgia

May 13, 1937

Rehearing Denied July 10, 1937.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Mandamus proceeding by Dorothy Leoles, a minor, by her father as next friend, against J. H. Landers and others, to compel her reinstatement as a student at the Crew Street School in Atlanta. To review a judgment of dismissal, plaintiff brings error.

Affirmed.

Syllabus by the Court.

1. A regulation promulgated by the board of education of the city of Atlanta, requiring that all pupils attending any school of the Atlanta public schools shall participate in certain patriotic exercises which include an individual salute to the United States flag by each pupil, is lawful and reasonable and in keeping with the policy of the state that the common schools of Georgia shall instruct the youth thereof in 'the study of and devotion to American institutions and ideals.'

2. The salute of the United States flag by a pupil 'is by no stretch of the imagination a religious rite.' It is a gesture of patriotism, signifying respect for the American government and its institutions and ideals. And where a pupil of one of the schools of the public school system of Atlanta absolutely and continuously refuses to salute the United States flag, the privilege extended to such child of free education afforded by such school may be withdrawn and the child expelled from school.

3. The requirement of the school authorities that all pupils shall salute the flag of the United States, and their action in expelling from the school a pupil who refuses to salute the flag, violate no rights secured to the child by the Constitution of the United States or of the State of Georgia even though the child is a member of a religious sect calling themselves 'Jehovah's Witnesses,' who deem it a sin to salute the United States flag, in that such act constitutes a violation of one of the precepts of their religion forbidding 'them to worship any image, emblem person, or thing, save and except Almighty God.'

4. The record in this case does not affirmatively show that the attack on the provisions of section 32-706 of the Code as an unconstitutional delegation of authority to the board of education was made and passed on in the trial court; but it is apparently raised for the first time in the brief of counsel for the plaintiff. In these circumstances this court will not pass upon the same. See Savannah Ry. Co. v. Hardin, 110 Ga. 433, 35 S.E. 681; Loftin v. Southern Security Co., 162 Ga. 730, 134 S.E. 760; Conyers v. Luther Williams Banking Co., 162 Ga. 350, 133 S.E. 862; Edwards v. Milledgeville, 180 Ga. 725, 180 S.E. 612; West v. Standard Accident Insurance Company, 176 Ga. 54, 166 S.E. 761.

Lanham & Parker, of Rome, and Grover C. Powell, of Atlanta, and, on motion for rehearing, J. Herbert Johnson, of Atlanta, for plaintiff in error.

J. C. Savage, Bond Almand, C. S. Winn, and J. C. Murphy, all of Atlanta, for defendant in error.

RUSSELL Chief Justice.

Dorothy Leoles, a minor child twelve years old, by her father as next friend, instituted mandamus proceedings directed to the members of the board of education of the city of Atlanta, to compel her reinstatement as a student at the Crew Street School, one of the schools belonging to the Atlanta Public School System, and under the supervision and control of the respondents. The respondents 'have inaugurated in the school system of the City of Atlanta an exercise or ceremony during which all pupils of the said schools are required to salute the United States flag.' This the petitioner refused to do, 'giving as her reasons the following: Petitioner and her father are members of a religious organization known as 'Jehovah's Witnesses,' who sincerely believe that God's word and teachings forbid them to worship any image, emblem, person, or thing, save and except Almighty God; she refused to salute the flag for the sole reason that she believes that to do so is an act of worship of an image or emblem; she did not refuse to pledge allegiance to her country; she is a good and loyal citizen of the United States and of the City of Atlanta; she believes in the American form of government.' Upon the failure of the petitioner to salute the United States flag, and upon her continual refusal to do so, she was expelled from said school and barred from attending any of the public schools of Atlanta. The respondents filed their general demurrer; and the case is before this court upon exception to the order of the judge sustaining said demurrer and dismissing the petition.

There is no question as to the propriety of the plaintiff's remedy being by mandamus, if the petition otherwise sets forth a cause of action. Board of Education v. Felder, 116 Ga. 788, 43 S.E. 56; McCaskill v. Bower, 126 Ga. 341, 54 S.E. 942; Wilson v. Stanford, 133 Ga. 483(4), 66 S.E. 258, cited in 39 A.L.R. 1020. So the controlling 'question of law involved is whether the Board of Education of Atlanta has the legal authority to expel from the public schools of the city a student' who intentionally and continuously refuses to comply 'with the rules of the board requiring all students to salute the flag of the United States.' The board of education of the city of Atlanta is invested with the power and authority of supervising and regulating the schools comprising the public school system of said city, and with the right and authority to make and enforce such rules as are consonant with the law of this state. It is the policy of the state to provide free public schools for the youth of this state and to compel their attendance thereupon. Under the Constitution of this State it is provided that: 'There shall be a thorough system of common schools for the education of children as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State.' Code, § 2-6601 (Const.art. 8, § 1, par. 1). 'Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the subdistricts in which the schools are located.' Section 32-937. The provisions of the public school law, and of our Constitution on the subject, in so far as pertinent, are applicable to public common schools within the city of Atlanta, and under the supervision and control of the board of education of that city, in that said school system is not entirely independent, but relies in part upon the receipt of school funds from the state. See Peak v. Board of Education of Cuthbert, 177 Ga. 476, 170 S.E. 488. Under our law, children between the ages of eight and fourteen years are compelled, except as excused and exempted as therein provided, to attend continuously, for at least six months of each year, some public school of the district or city in which the child resides; but such attendance shall not be required where the child attends for the same period of time some other school giving instruction in the ordinary branches of the English education. Code, § 32-2101. Prosecution may be had for failure to comply with this Code provision; and where a child resides in a city it is the duty of the municipal board of education to inquire into the nonattendance, and institute or cause to be instituted the necessary prosecution. Sections 32-2102, 32-9906. Furthermore, it is the policy of this state, through instruction in schools by patriotic teachers, to instill the youth thereof with the principles of American government and patriotic duty. 'All schools * * * in any manner supported by public funds shall give instruction in the essentials of the United States Constitution and the Constitution of Georgia, including the study of and devotion to American institutions and ideals, and no student in any school or college shall receive a certificate of graduation without previously passing a satisfactory examination upon the provisions and principles of the United States Constitution and the Constitution of Georgia.' Code, § 32-706.

The General Assembly of 1935, on March 26, 1935, by resolution provided: 'Whereas, in order to perpetuate the principles of free government and preserve the high ideals upon which this Nation was founded and upon which our Constitutions rest, it is necessary that the fundamental principles of patriotism and the ideals of Americanism be inculcated into and cultivated in the minds of our children; and whereas the public-school teachers and other employees of this State wield an influence upon the lives and minds of Georgia children second only to that of their parents; and whereas the State has been and is being flooded with propaganda and literature which seek the destruction of the high principles of government which ought to be perpetuated; Therefore be it resolved by the General Assembly of Georgia (the Senate and House of Representatives concurring), that every teacher in the public schools of this State, whether elementary, high school, college or university, and all other employees, of the State or sub...