Dill v. Hamilton
| Decision Date | 22 March 1940 |
| Docket Number | 30577. |
| Citation | 291 N.W. 62,137 Neb. 723 |
| Parties | DILL ET AL. v. HAMILTON, COUNTY JUDGE, ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The relief grantable in a proceeding for a declaratory judgment extends to the construction or validity of a statute, where there is a justiciable, determinable controversy between the parties in respect to rights or penalties thereunder. Comp.St.1929, sec. 20-21,141.
2. Relief in a proceeding for a declaratory judgment in a justiciable case may depend on the construction or validity of a statute.
3. Plaintiffs are not required to violate a penal statute as a condition of having it construed or its validity determined in a proceeding for a declaratory judgment.
4. Jurisdiction of a court to pronounce a declaratory judgment is not lacking merely because the construction or validity of a statute authorizing a fine and an imprisonment is necessary to a decision.
5. A statute authorizing imprisonment for violation of its provisions imposes no restrictions on conduct except those specifically enumerated in the legislative act.
6. The act to prohibit " all public exhibitions of hypnotism mesmerism, animal magnetism, or so-called psychical forces for gain," does not prohibit spiritualistic seances, unless they are public and open for gain. Laws 1911, ch. 182, sec. 1; Comp.St.1929, sec. 28-1111.
7. The making of a public exhibition of religious worship in the form of a seance, for gain, on the stage or at a carnival, fair, circus, or show is not a religious liberty guaranteed by the Constitution.
8. The police power to prohibit public exhibitions for money-making purposes or for gain extends to harmful, immoral or indecent performances, though conducted in the name of religion, and violators of such prohibitions are subject to statutory penalties therefor.
9. A guaranty of $15 to remunerate a medium for conducting a spiritualistic seance as a religious ceremony in the worship of God and the creation of the fund by voluntary contributions of communicants of the Spiritualistic Church do not amount to " gain" within the meaning of the statute forbidding public seances for gain.
Appeal from District Court, Fillmore County; Proudfit, Judge.
Action by John Wilbert Dill and others, as officers or members and communicants of the Spiritualistic Church, against Howard W. Hamilton, County Judge of Fillmore County, and others for a declaratory judgment declaring plaintiffs' right to worship God according to their religious beliefs, wherein defendants filed a demurrer. From a judgment dismissing the action upon sustaining of the demurrer, plaintiffs appeal.
Reversed.
R. M. Anderson, of Lincoln, for appellants.
Waring & Waring and John C. Gewacke, all of Geneva, for appellees.
Heard before SIMMONS, C. J., and ROSE, PAINE, CARTER, MESSMORE and JOHNSEN, JJ., and ELLIS, District Judge.
Under the declaratory judgment act, plaintiffs, alleging they are officers or members and communicants of the Spiritualistic Church, applied to the district court for Fillmore county for a judgment declaring their right to worship God according to their religious beliefs, tenets of faith, ceremonies and rituals, including spiritualistic seances, and also declaring the law to be such as to prevent defendants, who are prosecuting executive and judicial officers, from interfering with the religious freedom and the devotional exercises of plaintiffs.
The petition contains allegations disclosing incorporation of the Spiritualist Church, its membership, tenets of religious faith, ceremonies and rituals, interference therewith by defendants and threats of future prosecutions for violations of the statute forbidding public exhibitions of religious seances for gain.
Defendants assailed the petition by demurrer which was sustained by the district court and the proceeding dismissed. Plaintiffs appealed.
The demurrer challenges the sufficiency of the petition to state a justiciable case for a declaratory judgment. The determination of the issue thus raised depends on the power conferred upon the courts by the declaratory-judgment act, on the meaning and validity of the act to prohibit all public exhibitions of psychical forces or seances conducted by a spiritualistic medium for gain, and on the allegations of the petition. Declaratory judgments are authorized by the following provisions of statute:
The statute under which the present controversy arose provides:
" Any person or persons who shall hereafter take part in, practice, assist, or become a subject in giving a public, open exhibition or seance or show of hypnotism, mesmerism, animal magnetism or so-called psychical forces for gain shall be deemed guilty of a misdemeanor." Laws 1911, ch. 182, sec. 1; Comp.St.1929, sec. 28-1111.
Violation of the act subjects the violators upon conviction to fine or imprisonment or both. Plaintiffs allege and contend that they are threatened by defendants with prosecutions for conducting spiritualistic seances as religious exercises authorized by their established mode of worship, that defendants construe the act to authorize such prosecutions, and that so construed it is unconstitutional. The petition alleges further that John Wilbert Dill, one of the plaintiffs, is an ordained spiritualistic medium and minister of the Gospel; that he was formerly prosecuted, convicted and fined for alleged violation of the penal statute quoted and paid the fine to avoid imprisonment. Other members of the church are also plaintiffs herein, but no attempt is now made to substitute this proceeding for a new trial in the criminal prosecution or for an appeal or for another action. The former prosecution of Dill is not material to the proceeding at bar except perhaps to indicate a controversy and the necessity for a declaratory judgment. The relief grantable in a proceeding for a declaratory judgment extends by the very terms of the legislative act to the construction or validity of a statute, where there is a justiciable, determinable controversy between the parties in respect to " rights, status or other legal relations thereunder." Plaintiffs, seeking a declaratory judgment, are not required in advance to violate a penal statute as a condition of having it construed or its validity determined. " Declaratory judgment proceedings," says a text, " have frequently been employed to determine questions as to the construction or validity of statutes." 16 Am.Jur. 296, sec. 24. Another writer on the same subject, citing cases, says:
" The danger of a criminal penalty attached by law to the performance of an act affords those affected the necessary legal interest in a judgment raising the issue of validity, immunity, or status." Borchard, Declaratory Judgments, p. 47.
The supreme court of Nebraska by unanimous opinion adopted the following views expressed by the supreme court of Kansas:
" It is hardly conceivable that any fundamental principle of our government, beyond legislative control, prevents two disputants, each of whom sincerely believes in the rightfulness of his own claim, but each of whom wishes to abide by the law whatever it may be determined to be, from obtain ing an adjudication of their controversy in the courts without one or the other first doing something that is illegal (in the case of the present defendant criminal) if he is mistaken in his view of the law." Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192, 194; State v. Grove, 109 Kan. 619, 201 P. 82, 19 A.L.R. 1116.
Jurisdiction of a court to render a declaratory judgment is not, therefore, lacking merely because the construction or validity of a penal statute is necessary to a decision. In view of the conclusions of law reached in connection with the facts stated in the petition and admitted by the demurrer, the petition is not demurrable. The ruling below to the contrary is erroneous.
Does the act prohibiting " all public exhibitions of Hypnotism, Mesmerism, Animal Magnetism, or so-called Psychical Forces, for gain," deprive plaintiffs of religious rights guaranteed by the federal and state Constitutions? The language quoted is from the title of the act and is not legislation but indicates the subject of legislation. Alleged illegal interference with religious seances conducted by a spiritualistic medium is the subject of controversy. The prohibitions of the act itself are in this form:
" Any person or persons who shall...
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