Meyerkorth v. State

• Decision Date: 08 June 1962
• Docket Number: No. 35210,35210
• Citation: 173 Neb. 889,115 N.W.2d 585
• Parties: Lila MEYERKORTH and The Emmanuel Association, Appellants, v. The STATE of Nebraska, Freeman Decker, Commissioner of Education of The State of Nebraska, Helen Hanika, County Superintendent of Richardson County, Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 585

115 N.W.2d 585

173 Neb. 889

Lila MEYERKORTH and The Emmanuel Association, Appellants, v. The STATE of Nebraska, Freeman Decker, Commissioner of Education of The State of Nebraska, Helen Hanika, County Superintendent of Richardson County, Nebraska, Appellees.

No. 35210.

Supreme Court of Nebraska.

June 8, 1962.

Syllabus by the Court.

The statutes set forth in the opinion, complained about by the plaintiffs as being unconstitutional, held not to violate the First Amendment to the Constitution of the United States, the Fourteenth Amendment to the Constitution of the United States, or Article I, section 4, of the Constitution of the State of Nebraska.

Crosby, Pansing, Guenzel & Binning, Theodore L. Kessner, Lincoln, for appellants.

Clarence A. H. Meyer, Atty. Gen., Dwain L. Jones, Mel Kammerlohr, Asst. Attys. Gen., Lincoln, for appellees.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ., and CHADDERDON, District Judge.

MESSMORE, Justice.

The plaintiffs brought this action for declaratory judgment in the district court for Lancaster County, the purpose of the action being to declare sections 79-201, 79-1201 et seq., and 79-1701 et seq., R.R.S.1943, and the regulations pursuant thereto which provide for compulsory school attendance, certification of teachers, and for the operation and supervision of parochial schools unconstitutional and a void attempt to exercise the police power of the state. As will hereinafter appear, the sections of the statutes necessary to a determination of this appeal provide for compulsory school attendance, certification of teachers, and for the operation and supervision of parochial schools.

The plaintiffs' contention is that said sections of the statutes are unconstitutional to the extent that they abridge and prohibit the plaintiffs' free exercise of their religious beliefs, and any attempt on the part of the State to close the school operated by the plaintiffs would be unconstitutional and void.

The defendants demurred to the plaintiffs' amended petition on the grounds that it failed to state a cause of action against the defendants. The demurrer of the defendants to the amended petition was sustained. The plaintiffs elected to stand on their amended petition, whereupon the trial court dismissed the plaintiffs' amended petition. The plaintiffs filed a motion for new trial which was overruled, and the plaintiffs perfected appeal to this court.

The plaintiffs' assignment of error is that the trial court erred in sustaining the demurrer of the defendants to the plaintiffs' amended petition, and in dismissing the plaintiffs' amended petition.

The plaintiffs' amended petition alleged that defendant Freeman Decker was the Commissioner of Education of the State of Nebraska; that the defendant Helen Hanika was the county superintendent of Richardson County; that the plaintiff Lila Meyerkorth was a resident of Richardson County; that the Emmanuel Association was a religious body with headquarters in Colorado Springs, Colorado; that the Emmanuel Association and its members, of which Lila Meyerkorth is one, provide places of worship for members in several states, including the State of Nebraska; and that the churches which follow the doctrine of the Emmanuel Association are owned and operated by the members of each local congregation who have local autonomy over the conduct and affairs of each individual church.

The amended petition further alleged that one of such churches is near Shubert Richardson County, Nebraska, of which Lila Meyerkorth, plaintiff, is a member; that the plaintiff, as a member of an association of Christian parents, had employed one Eleanor Berry, whom she believed to be a qualified Christian teacher, qualified to educate her children spiritually and intellectually in a religious atmosphere, and pursuing the religious doctrines and beliefs of the members of the Association; that plaintiff and other parents were fully aware of the physical facilities available at the public schools in the vicinity as well as the teachers and the courses of study offered at such schools; that in like manner, plaintiff and other parents were aware of the professional training and education of the said Eleanor Berry, and with this full awareness, desired to employ said Eleanor Berry to tutor their children spiritually and intellectually so that the education of said children could be conducted in a particular religious atmosphere, and with the belief that said education is of equal or better quality to that provided in the public schools or other schools in the vicinity; that the plaintiff and other parents know the manner in which Eleanor Berry conducts the tutoring of their children, know the facilities available to the children, and are satisfied that the teachings and education are being conducted in their proper religious atmosphere which they desire for their children; that the defendants and each of them are threatening to close said Richardson County school by enforcement of the unconstitutional teacher qualifications and compulsory school attendance statutes and regulations, alleging that the school and the teacher, Eleanor Berry, are not qualified under the said statutes of the State of Nebraska; that the defendants and each of them are threatening to prevent plaintiffs from hiring Eleanor Berry as a private tutor for their children by the enforcement of the unconstitutional compulsory school attendance statutes; that the Commissioner of Education has informed Eleanor Berry that he would not grant unto her a Nebraska teaching certificate, for the reason that she does not meet the qualifications prerequisite to the issuance of such a certificate and that he will not recognize her college credits and degree; that said qualifications, as shown on exhibit A attached and incorporated by reference, are a void and unconstitutional attempt to exercise the police power of the State of Nebraska; that the Commissioner of Education and the Richardson County superintendent of schools, with the aid and assistance of the Attorney General's office and the Richardson County attorney, have attempted to close said school and deny plaintiff and other parents the right to have their children educated in the religious atmosphere desired by plaintiff; that said defendants have threatened to start criminal and other proceedings against the plaintiff and other parents to compel them to send their children to other available schools, which said schools do not have the proper religious atmosphere as is available to the children of the plaintiff and other parents under the tutoring of Eleanor Berry; that the concerted efforts of the defendants and each of them to compel the plaintiff and other parents to send their children to other schools and to deny them the right to the tutoring of Eleanor Berry and the proper religious atmosphere for their education, is allegedly being done under authority granted to the defendants by section 79-201, section 79-1201 et seq., and section 79-1701 et seq., R.R.S.1943; that said statutes provide for the compulsory school attendance of children for prescribed number of days, certification of teachers, and for the operation and supervision of parochial schools; that the efforts of the defendants to enforce the statutes as above set forth is in violation of the freedom of religion and the right of free exercise of religion guaranteed to the plaintiff by the Constitution of the United States and the Constitution of the State of Nebraska; that such statutes are an arbitrary, unwarranted, and an invalid attempt to exercise the police power of the State of Nebraska to infringe upon the aforesaid freedom and rights of the plaintiff; and that plaintiff and others similarly situated have paid and will pay all taxes properly levied for the support of the public school but declare and believe that it is their fundamental right, given by God and the Constitutions of the United States and the State of Nebraska, to educate their children under their own supervision as parents free from interference by the officials of the State of Nebraska except for such tests by such officials as may be reasonable and proper to determine that satisfactory educational levels are reached by such children under such parental education.

'Declaratory judgment proceedings have frequently been employed to determine questions as to the construction or validity of statutes.' Thorin v. Burke, 146 Neb. 94, 18 N.W.2d 664, 665. See, also, Nebraska Seedsmen Ass'n v. Department of Agriculture & Inspection, 162 Neb. 781, 77 N.W.2d 464.

The Declaratory Judgments Act is applicable to this case.

"A general demurrer admits all allegations of fact in the pleading to which it is addressed, which are issuable, relevant, material, and well pleaded; but does not admit the pleader's conclusions of law or fact.' * * * In passing on a demurrer to a petition, the court will consider an exhibit attached thereto and made a part thereof.' Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328, 331.

The plaintiffs state that all of the allegations of their amended petition are admitted by the defendants' demurrer. Defendants' demurrer does not admit that the effort to enforce the statutes complained of by the plaintiffs violate freedom of religion and the right of free exercise of religion guaranteed by the Constitution of the United States and the Constitution of the State of Nebraska, nor does the demurrer admit that such statutes are arbitrary, unreasonable, or invalid. Such questions are questions of law to be determined in this appeal.

The defendants contend that the statutes complained of by the plaintiffs are valid and constitutional.

The plaintiffs cite Article I, section 4, of the Constitution of the State of Nebraska which provides in part: 'All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own...