People ex rel. Fish v. Sandstrom

• Decision Date: 17 January 1939
• Citation: 279 N.Y. 523,18 N.E.2d 840
• Parties: PEOPLE ex rel. FISH v. SANDSTROM (two cases).
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 523

18 N.E.2d 840

PEOPLE ex rel. FISH

v.SANDSTROM (two cases).

Court of Appeals of New York.

Jan. 17, 1939.

Charles Sandstrom and Hilda Sandstrom were convicted of violating Education Law, § 627, subd. B(2), in a proceeding by the People, on the relation of Thomas W. Fish, and from a judgment of the Suffolk County Court, 167 Misc. 436, 3 N.Y.S.2d 1006, affirming the judgment of conviction in the Justice's Court, and dismissing the defendants' appeals, the defendants appeal.

Reversed and information dismissed.

Appeal from Suffolk County Court.

Arthur Garfield Hays and Percy S. Straus, Jr., both of New York City, O. R. Moyle, of Brooklyn, and Bernard Katz, of New York City, for appellants.

Fred J. Munder, Dist. Atty., of Huntington, L. I. (Harry C. Brenner, of Huntington, L. I., of counsel), for respondents.

Joseph F. Rutherford, of Brooklyn, for Jehovah's Witnesses, amicus curiae.

CRANE, Chief Judge.

We must have before us the pertinent provisions of the Education Law (Consol. Laws, c. 16) to understand this case. Section 712 of that law, as found in book 16 of McKinney's Consolidated Laws of New York (Annotated), makes it the duty of the Commissioner of Education to prepare, for the use of public schools of the State, a program providing for a salute to the flag, for instruction in its correct use and display and such other patriotic exercises as may be deemed by him to be expedient.

In each school district of the State, each minor from seven to sixteen years of age shall attend upon full time day instruction (§ 621). Persons in parental relationship to such a minor ‘shall cause such minor to attend upon instruction as hereinbefore required.’ Section 627, subd. B(2). A minor under seventeen years of age required to attend upon instruction, who is irregular in such attendance or insubordinate or disorderly during such attendance, is a school delinquent and may be required, pursuant to the provisions of section 628, to attend a special day school or attend upon instruction under confinement at a parental school or elsewhere. Subdivision F(1) (a) provides that the school authorities may suspend a minor from required attendance upon instruction, who is insubordinate or disorderly, that is, may expel such a scholar.

In section 627 we find this exception : A person in parental relation to a minor shall not be subject to the provisions of this section requiring the minor to attend upon instruction if it can be shown that he is unable to control the minor.

Any violation of these provisions shall be punishable for the first offense by a fine not exceeding ten dollars, or ten days in prison, or for each subsequent offense by a fine not exceeding fifty dollars, or by imprisonment not exceeding thirty days, or both by such fine and imprisonment (§ 641).

These provisions spell out the following procedure for recalcitrant scholars: If the parent refuses to send the minor to school or refuses to cause him to attend upon instruction, the parent can be punished as provided by the law. The minor himself who is insubordinate or disorderly and refuses to obey regulations may be expelled or, for continued insubordination or non-attendance, may be sent upon proper notice to a parental school.

Under the above provisions of the law the district school at Lake Ronkonkoma, town of Brookhaven, county of Suffolk, pursuant to the regulations of the Commissioner of Education, as required by section 712, had a simple ceremony of saluting the flag. Grace Sandstrom, a young girl thirteen years of age, refused to take part in these ceremonies and refused to make the salute with the other scholars. She was repeatedly requested to do so by her teacher and principal and still refused. The teachers were not at fault. Every time she was sent home she was sent back by her parents. She never refused to attend the school; she always came back, and yet she refused to comply with the regulations or take part in the ceremony. As soon as she was sent home the truant officer was notified and she was immediately sent back by her parents. There is no evidence in the case that she ever was kept home or was refused attendance upon instruction or that she desired to stay away from school or attempted to do so. In fact, she persisted upon coming as well as being steadfast in her refusal to salute the flag. Two other children, younger than herself, of the same family, were also students in the school, but there seems to have been no trouble with them.

This proceeding was then taken before the justice of the peace to punish the parents under section 627, subdivision B(2), of the Education Law, the information stating that they wrongfully and unlawfully and maliciously did keep one Grace Sandstrom from attending upon full time instruction in the public school, she being a minor between seven and sixteen years of age. The fact is, as is evidenced throughout the entire record, that the parents did nothing of the kind. They repeatedly sent the child back and the child always came back to school after being sent home. I can see no justification for this proceeding against the parents. If the young girl was insubordinate and disobedient to all the proper orders and regulations of the school, she is the one that should have been dealt with under the provisions of the Education Law. In like cases where this same question has arisen, the procedure has always been to expel the student, not to punish the parents unless they in some way have disobeyed the law.

Before suggesting, however, that this young girl be summarily dealt with, let us consider the case a step further.

The defendants are members of, or associated with, the religious order known as Jehovah's Witnesses. Part of their belief is that allegiance is due only to God, and that the salute or recognition of the national flag is placing this symbol above the Almighty. The young girl Grace, upon the stand in this case, explained her actions by saying, ‘Mr. Terry [the principal of the school] went up to the front of the room and he said he did not want to see anybody not saluting the flag. * * * I told him that saluting the flag is like worshiping an image, and that in the Bible in the twentieth chapter of Exodus it says, ‘Thou shalt not make unto thee any graven image of anything in heaven above or in the earth beneath; thou shalt not bow down to them nor serve them.’ * * * He sent me home.'

‘Q. Did your parents ever keep you from going to school? A. No. I came to school one day. Mr. Terry asked me if I would salute the flag and I said ‘No.’ He said I should put my books in my desk and go home.

‘Q. People who write the pamphlets and papers for your religion, do you know if they ever said anything whether Jehovah's Witnesses should salute the flag or not? A. In the ‘Loyalty’ booklet it told about other school children who had refused and that they were expelled.

‘Q. What do you think would happen to you if you salute the flag contrary to your conscience? A. When the battle of Armageddon comes, I would be slain. Because the flag is an image and it says in the Bible not to bow down to images.’

The appellants claim that to compel Grace to salute the flag contrary to her religious convictions or conscience is contrary to the provisions of the State Constitution (Art. 1, § 3), which reads: ‘The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.’

Saluting the flag in no sense is an act of worship or a species of idolatry, nor does it constitute any approach to a religious observance. The flag has nothing to do with religion, and in all the history of this country it has stood for just the contrary, namely, the principle that people may worship as they please or need not worship at all. On the other hand, our Constitution, both Federal and State, recognizes that a religious belief, whatever it is, cannot interfere with the laws which the State enacts for its preservation, safety or welfare. In time of war the government may seize property and take liberty for its self protection. We are all familiar with the draft which called our young men to arms and to service for the nation. For the preservation of peace and for the prevention of war, the State may take measures which may lead the youth of the country to respect law and order, and to value the protection and the blessings afforded by those fundamental principles, of which the flag is a mere representative.

The State cannot reasonably be required to defer the adoption of measures for its own peace and safety until revolutionary utterance and acts lead to actual disturbance of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, seek to prevent evil in its incipiency.Gitlow v. People of State of New York, 268 U.S. 652, 669, 45 S.Ct. 625, 69 L.Ed. 1138.

While legislation for the establishment of religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Davis v. Beason, 133 U.S. 333, page 345,10 S.Ct. 299, 33 L.Ed. 637.

The States, like Congress, are free to reach actions which are in violation of social duties or subversive of good order. Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244.

In Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, page 534,45 S.Ct. 571, page 573,69 L.Ed. 1070, 39 A.L.R. 468, the court said: ‘No question is raised concerning the power of the state reasonably to regulate all schools, * * * to require * * * that certain studies plainly...