Bolling v. Superior Court for Clallam County
| Decision Date | 29 January 1943 |
| Docket Number | 28908.,28909 |
| Citation | 16 Wn.2d 373,133 P.2d 803 |
| Parties | BOLLING et ux. v. SUPERIOR COURT FOR CLALLAM COUNTY. FULLER et al. v. SMYTHE. |
| Court | Washington Supreme Court |
Department 2.
Original proceeding by Edward Bolling and Mrs. Edward Bolling, his wife, against the Superior Court of the State of Washington for Clallam county, Honorable Ralph Smythe, Judge, for a writ of certiorari to review an order of respondent court in a matter pending Before the Juvenile Department declaring three minor children of petitioners to be dependent children making them wards of the court, and placing them as delinquent children in the custody of Mrs. Hazel Tarr, argued and submitted together with separate original proceeding by Clifford P. Fuller and others against the Honorable Ralph Smythe, Judge of the Superior Court of the State of Washington for Clallam county, for a writ of prohibition to prevent the Superior Court from depriving petitioners of custody of their respective minor children, and from entering orders declaring such children to be dependent children, and for that reason making them wards of the court, and awarding custody of such children to some person or persons other than petitioners.
Order reversed and writ of prohibition issued directing Superior Court to refrain from entering any similar order in cases pending Before it in which petitioners and their children are parties.
A. E Dailey, of Everett, for petitioners.
Max Church, Prosecuting Atty., Clallam County, of Port Angeles for respondent.
The above entitled matters, which are original proceedings filed in this court, are Before us in form as follows: In cause No 28909, the petitioners, Edward Bolling and wife, ask for a writ of certiorari to review an order of the superior court for Clallam county, entered in a matter pending Before the juvenile department, declaring three minor children of the petitioners, all under the age of sixteen years, to be dependent children, making the children wards of the court, and placing them, as delinquent children, in the custody of Mrs. Hazel Tarr, subject to further order.
Proceeding No. 28908 comprises the applications of Mr. and Mrs. Clifford P. Fuller, Mr. and Mrs. William Grittman, and Mr. and Mrs. Walter Parr, for a writ of prohibition to prevent the superior court from depriving petitioners of the custody of their respective children, who are also minors, and from entering orders declaring the children to be dependent children, and for that reason making the children wards of the court, taking them from their respective parents and awarding custody of the children to some person or persons other than petitioners, their natural parents.
Alternative writs having been issued, full returns were filed, and as the proceedings all involve the same question, one set of briefs only was filed, and the matters were argued and submitted together for final disposition.
The single question presented involves the right of respondent, sitting as juvenile judge, to take minor children of school age from their parents and award the children to the custody of others, because the children have been expelled from the common schools of this state by reason of their refusal, while in attendance at school, to salute the flag of the United States of America, pursuant to Rem.Rev.Stat. § 4777, which reads as follows: 'Every board of directors of the several school districts of this state shall procure a United States flag, which shall be replaced with a new one whenever the same becomes tattered, torn or faded, and shall cause said flag to be displayed upon or near each public school building during school hours, except in unsuitable weather, and at such other times as to said board may seem proper, and shall cause appropriate flag exercises to be held in every school at least once in each week at which exercises the pupils shall recite the following salute to the flag: 'I pledge allegiance to my flag and to the republic for which it stands. One nation indivisible with liberty and justice for all.'' The above section is § 4, chapter 90, Laws of 1919, that act consisting of amendments to the school code.
The school authorities having insisted upon compliance with the section of the statute above quoted, the minor children of the petitioners in these proceedings, upon conscientious grounds, refused to repeat the pledge of allegiance contained in the statute, stating that according to their religious belief, the repetition of words constituting the pledge, together with accompanying gestures, are acts which are against their religious convictions. The children, having refused to comply with the law and the directions of the school authorities, were expelled, and being unable to attend any other school, were brought Before the juvenile court as delinquent children. After a hearing in the matter of the welfare of the Bolling children, the trial court entered an order declaring that the parents had 'neglected and refused to provide or permit proper training and education' for the children, declared the children wards of the court, and placed them, until further order of the court, with Mrs. Hazel Tarr, their elder sister. The court filed a comprehensive memorandum opinion, containing findings of fact.
In the other above entitled proceeding Before this court, the records show that minor children of the three sets of parents who are petitioners herein also refused to repeat the flag salute, the court announcing that orders similar to that entered in the matter of the Bolling children would be entered in each case. Prior to the entry of any such order, the parents applied to this court for a writ of prohibition forbidding such action, and in the alternative writ which this court entered, further proceedings on the part of the superior court were stayed, pending decision by this court of the questions presented. The trial court has stated that in the matters of the Fuller, Parr and Grittman children, situations are presented identical with that appearing in the Bolling case.
The proceedings having been argued together, and the questions presented being in all respects identical, the cases will be disposed of in one opinion. The record presents no disputed question of fact, and no matter requiring the exercise of judicial discretion is involved.
The minor children of the parties to these proceedings were expelled from school because of their refusal to participate in the weekly exercises held in the school pursuant to § 4777, the children refusing to repeat the words constituting the pledge of allegiance to the flag, as contained in the section, upon the ground that repeating the words of this pledge and making the appropriate gestures was against their religious belief, as violating the second commandment as contained in the book of Exodus, chapter 20, verses 4 and 5. It appears that the repetition of the words of the pledge was accompanied by a gesture of the right arm, which the children were taught by their parents constituted an act of reverence to a graven image, or an idol, and was consequently forbidden by the second commandment.
The parents of the children and the children are members of a religious group, or cult, calling themselves 'Jehovah's Witnesses.' This religious cult has existed in this country and in other countries for many years; its doctrines and teachings are well known and almost fanatically observed by its adherents. The children in question have been brought up in the belief that the teachings of the leaders of the group correctly expound the laws of God, as contained in the Bible. That the belief both of the parents and the children in these teachings is sincere, cannot be doubted.
It is not suggested that either the parents or the children are in any way immoral, or that any of them have violated any laws, rules, or regulations, other than as above stated.
It also appears that after the expulsion of the children from the common school, no other means of pursuing their education were available to them.
Petitioners rely upon the first amendment to the constitution of the United States, ratified December 15, 1791, commonly referred to as article 1 of the Bill of Rights, which, as adopted, was a limitation upon the power of Congress, and which reads as follows: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
By the fourteenth amendment, this section was made applicable to the states. 12 C.J. 941; 16 C.J.S., Constitutional Law, p. 600, § 206.
Petitioners also rely upon the constitution of the state of Washington, amendment 4, approved November, 1904, which reads in part as follows: 'Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or be disturbed in person or property on account of religion; 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 and safety of the state.'
Petitioners argue that the requirement that their children repeat the words of the pledge to the flag, as contained in § 4777 supra, accompanying the words with a physical salute to the flag, the gesture and the repetition of the words being against their religious belief, violates their constitutional rights, as secured to them by the first amendment to the Federal constitution and the portion of the amendment to our state constitution above quoted. In this connection, it may be...
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