296 F. 928 (D.Or. 1924), 8660, Society of the Sisters of the Holy Names of Jesus and Mary v. Pierce

Docket Nº:8660, 8662.
Citation:296 F. 928
Case Date:March 31, 1924
Court:United States District Courts, 9th Circuit, District of Oregon

Page 928

296 F. 928 (D.Or. 1924)



PIERCE, Governor of Oregon, et al.




Nos. 8660, 8662.

United States District Court, D. Oregon.

March 31, 1924

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The plaintiff in the first of the above cases, hereafter for convenience to be called the Sisters' Society, was incorporated, and now maintains its corporate powers, under the general laws of Oregon providing for the incorporation of religious, literary, and charitable societies, and the plaintiff in the second case, to be called the Academy, was incorporated under the general laws providing for the incorporation of private corporations, and is maintaining its school under and by virtue of such organization. Among the powers assumed by the Sisters' Society is 'the care of orphans and the education and instruction of youth, and to establish and maintain academies or schools for the care and education of youth in the cities and towns of the state of Oregon,' and among those assumed by the Academy, 'to conduct a military academy and school.'

Each of these institutions teaches the primary or grammar grades, including children ranging from 8 to 16 years of age. Each has been in existence for many years, and has built up and acquired an extensive patronage and attendance, and owns real and personal property of great value, including equipment and laboratories for enabling it to maintain its school work, and each carries primary students through the eight grades of instruction required to be taught in the common schools and under the supervision of the school authorities of the state. While this is true, each of these institutions engages in other lines of school work, one extending to religious and the other to military and other instruction, and their principal sources of sustenance are from tuition paid by student bodies.

There was enacted, under the initiative, on November 7, 1922, a bill for the amendment of section 5259, Oregon Laws, which reads as follows:

'Children Between the Ages of Eight and Sixteen Years.-- Any parent, guardian or other person in the state of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense; provided, that in the following cases, children shall not be required to attend public schools. ' Laws 1923, p. 9.

Among the cases are children who have completed the eighth grade. It is alleged, in effect, in each of these cases, that the defendants do now publicly declare and publish that the act is valid, wise, and wholesome; that they threaten and declare that they will enforce all the provisions thereof from and after the date it becomes operative, and that all parents and guardians having children between the ages of 8 and 16 years to nurture, support, and educate, who shall send them to plaintiffs' grade schools after that date, will be prosecuted as violators of the act; that by reason thereof patrons are withdrawing their children from plaintiffs' schools and depleting their attendance; that, if the process continues, as it assuredly will, complainants will be deprived of their entire patronage in the grade courses, the school systems in which they have been engaged will in large measure be destroyed, and they will be compelled to discontinue and close all their schools long before the act goes into effect; that the value of their property is being depreciated, and it will be rendered practically worthless for school or other purposes.

These suits are instituted to have the act declared void, as in contravention of the constitutional rights and privileges of plaintiffs, and to restrain defendants from insisting upon its validity, now or at any time. Plaintiffs claim that the act is void, as violative of section 1 of the Fourteenth Amendment of the Constitution, in that it trenches upon their privileges and immunities as citizens of the United States; that it deprives them of life, liberty, and property without due process of law, and the equal protection of the laws, and is violative also of that clause of section 10, art. 1, of the Constitution, relating to the impairment of the obligation of contracts. Complainants are asking for injunctive relief. Defendants have interposed motions to dismiss.

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Bowerman & Kavanaugh, Malarkey, Seabrook & Dibble, Emmons & Lusk, and Frank J. Lonergan, all of Portland, Or., for plaintiff Society of the Sisters of the Holy Names of Jesus and Mary.

John C. Veatch, of Portland, Or., for plaintiff Hill Military Academy.

I. H. Van Winkle, Atty. Gen., of Salem, Or., and Stanley Myers, Dist. Atty., and McCamant & Thompson, all of Portland, Or., for defendants.

Before GILBERT, Circuit Judge, and WOLVERTON and BEAN, District judges.

WOLVERTON, District Judge (after stating the facts as above).

Without refining as to the precise political rights that corporations, whether civil, religious, or educational, have and possess, and of right may assert and maintain, in this country, it is sufficient to say that it has been recognized by ample authority that, while not possessing the rights of citizens under the privileges, and immunities clause of the Fourteenth Amendment to the Constitution (Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 45, 20 Sup.Ct. 518, 44 L.Ed. 657), they do have the guaranty, along with citizens, that they shall not be deprived of their property without due process of law, nor be denied the equal protection of the laws (Smyth v. Ames, 169 U.S. 466, 526, 18 Sup.Ct. 418, 42 L.Ed. 819; Covington, etc., Turnpike Co. v. Sandford, 164 U.S. 578, 592, 17 Sup.Ct. 198, 41 L.Ed. 560; Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 U.S. 150, 154, 17 Sup.Ct. 255, 41 L.Ed. 666; Southern Railway Co. v. Greene, 216 U.S. 400, 416, 30 Sup.Ct. 287, 54 L.Ed. 536, 17 Ann.Cas. 1247).

The question as to equitable jurisdiction is a simple one, and it may be affirmed that, without controversy, the jurisdiction of equity to give relief against the violation or infringement of a constitutional right, privilege, or immunity, threatened or active, to the detriment or injury of a complainant, is inherent, unless such party has a plain, speedy, and adequate remedy at law; and in the exercise of such jurisdiction, the court may, in proper cases, restrain state officers, clothed with authority for enforcing the laws, from the threatened enforcement of a state law which contravenes the federal Constitution, wherever it is essential in order effectually to protect property rights and the rights of persons against injuries otherwise irremediable. Terrace et al. v. Thompson, 44 Sup.Ct. 15, 68 L.Ed. . . ., and cases there cited.

Further than this, a party insisting that constitutional guaranties for his benefit are being violated, may also insist, as an element of infringement of such guaranties, that others upon whom he is dependent for the support and sustenance of his lawful business shall not be deprived of their constitutional rights, privileges, and immunities.

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Thus, in Truax v. Raich, 239 U.S. 33, 36 Sup.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann. Cas. 1917B, 283, it appears that, under an act passed by the Legislative Assembly of Arizona, employers were prohibited, under penalty, from employing aliens to the extent of more than 20 per cent. of their working force. Mike Raich, an alien employee, feeling himself aggrieved, instituted a suit against his employer and the district attorney of the proper county, to restrain the enforcement of the act. It was urged, among other things, that the servant ought not to be heard to complain for his master, who alone was subject to prosecution. But the court answered:

'The act undertakes to operate directly upon the employment of aliens, and if enforced would compel the employer to discharge a sufficient number of his employees to bring the alien quota within the prescribed limit. It sufficiently appears that the discharge of the complainant will be solely for the purpose of meeting the requirements of the act and avoiding threatened prosecution under its provisions. It is therefore idle to call the injury indirect or remote.'

The pertinency of the court's conclusion is the more manifest in view of its previous declaration, as a premise, that the--

'employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion, and, by the weight of authority, the unjustified interference of third persons is actionable, although the employment is at will.'

Likewise, in Terrace et al. v. Thompson, Attorney General of the State of Washington, supra, which was a suit to enjoin the enforcement of the anti-alien land law of that state, it appears that the Terraces and one Nakatsuka, a Japanese and an alien, were desirous of entering into a lease of realty belonging to the former. Against the contention of the Attorney General that the parties had an adequate remedy at law, the court replied among other things:

'The owners have an interest in the freedom of the alien, and he has an interest in their freedom, to make the lease. The state act purports to operate directly upon the consummation of the proposed transaction between them, and the threat and purpose of the Attorney General to enforce the...

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