Nebraska District of Evangelical Lutheran Synod of Missouri v. McKelvie
| Decision Date | 26 December 1919 |
| Docket Number | 21153 |
| Citation | 175 N.W. 531,104 Neb. 93 |
| Parties | NEBRASKA DISTRICT OF EVANGELICAL LUTHERAN SYNOD OF MISSOURI ET AL., APPELLANTS, v. SAMUEL R. MCKELVIE, GOVERNOR, ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Affirmed.
AFFIRMED.
A. M Post, John J. Sullivan, Albert & Wagner, Arthur F. Mullen and Joseph T. Votava, for appellants.
Clarence A. Davis, Attorney General, and George W. Ayres, contra.
A. H Byrum and Joseph Wurzburg, amici curiae.
OPINION
This is an action to restrain the enforcement of chapter 249, Laws 1919, on the ground that it violates several of the provisions of the Constitution of this state, and of the Fourteenth amendment to the Constitution of the United States. Joining with the plaintiffs and asking for the same relief are certain local church corporations conducting parochial schools, certain private schools, and several foreign language speaking parents.
In substance, the complaints of the plaintiffs and interveners are that, since the officers and members of the respective churches are largely made up of foreign language speaking people, if the act is enforced their children will be unable to obtain instruction in religion and morals in accordance with the doctrines of the religious denominations to which the parents belong, in the language of their parents; that many of the children cannot understand English, and cannot understand such instruction in that language; that in the parochial schools below the seventh grade the language of the parents is used in order to teach English, and that the children cannot learn English if they do not receive rudimentary education in the tongue the parents use; that property rights in the school buildings and grounds, and in the good will of the schools, will be destroyed; that the defendants, McKelvie, as governor, Davis, as attorney general, and Shotwell, as county attorney of Douglas county, are severally threatening an enforcement of the act by causing the arrest and prosecution of the plaintiff's officers and teachers.
The enrolled act complained of is as follows, the copy in the published laws being slightly inaccurate: "An act relating to the teaching of foreign languages in the state of Nebraska:
A general demurrer to the petitions was sustained, and the action dismissed. Plaintiffs and interveners appeal.
The appellants assert that the act is not regulatory; that it is an unwarranted interference with purely domestic affairs, and an invasion of the inherent discretion of parents in prescribing the course of instruction best adapted to the spiritual and material needs of children of their respective faiths; that the demurrer admits that many parents have reached an age where it is impossible for them to acquire a sufficient knowledge of English to enable them to counsel and admonish their children in matters of faith and morals in the English language, and that the teaching of foreign languages is largely to enable them to participate in the same religious services and exercises in the home and in the church; that the schools are private institutions, and having discharged their duty to the state by providing instruction equal to that of the public schools, they may not be penalized for giving additional instruction, whether religious or secular; that the understanding of other languages and literature is not harmful to the individual or to the state itself; that, so far as the act imposes a penalty upon teachers for giving instruction in other languages, it is violative of their constitutional right to engage in the practice of their profession or calling. They complain that the act discriminates against teachers who teach foreign languages in schools, and leaves the teacher who gives such lessons in private free to pursue his calling; that, if any teacher should open a night school to instruct those who could not understand English, in arts or sciences, he would violate the act, whereas another could form private classes and give instruction in a foreign language without offense.
They also maintain that the first section of the act is not within the title; that the state has power to regulate the course of study in the public schools, and prevent the study of any subject not in the course, and can regulate private schools so as to require them to maintain a like course of study, but has no power to prevent pupils in private schools from studying branches in addition to the course of study prescribed by the state; that the state cannot claim a monopoly of teaching; and that the right to study any subject is a personal right which is protected by the Constitution.
Previous to 1919 there was no provision in the statute expressly specifying the branches of study to be taught in the common schools. The operation of the selective draft law disclosed a condition in the body politic which theretofore had been appreciated to some extent, but the evil consequences of which had not been fully comprehended. It is a matter of general public information, of which the court is entitled to take judicial knowledge, that it was disclosed that thousands of men born in this country of foreign language speaking parents and educated in schools taught in a foreign language were unable to read, write or speak the language of their country, or understand words of command given in English. It was also demonstrated that there were local foci of alien enemy sentiment, and that, where such instances occurred, the education given by private or parochial schools in that community was usually found to be that which had been given mainly in a foreign language.
The purpose of the new legislation was to remedy this very apparent need, and by amendment to the school laws make it compulsory that every child in the state should receive its fundamental and primary education in the English language. In other states the same conditions existed, and steps have been taken to correct the evil. In 1919 the legislatures of Iowa, Kansas, Maine, Arkansas, Indiana, Washington, Wisconsin, and New Hampshire passed measures more or less drastic with regard to compulsory education in English, and the prohibition of the use of foreign languages in elementary schools.
It is a general rule that statutes pertaining to the same subject-matter should be construed together, and this is particularly so if the statutes were passed at the same session of the legislature. The general principle is that the legislature must be presumed to have in mind all previous legislation upon the subject, including statutes closely related, so that in the construction of this statute we must consider the pre-existing law, and any other acts relating to education, or subjects of instruction, passed at the 1919 session, which may tend to elucidate the intention of the legislature.
The compulsory education act of Nebraska, as amended in 1919, chapter 155, Laws 1919, requires that every child, or youth, not less than seven nor more than sixteen years of age, shall, during each school year, attend public, private, denominational or parochial day school for not less than twelve weeks, and in the city and metropolitan city school districts attend the full period of each public school year in which the public day schools are in session, with certain exceptions.
All private, denominational and parochial schools and all teachers employed or giving instructions therein, shall be subject to and governed by the provisions of the school laws of the state as to grades, qualifications and certification of teachers. They are required to have adequate equipment and supplies, and shall have grades and courses of study substantially the same as the public schools where the children will attend in the absence of private, denominational or parochial schools. Nothing in the act is to be...
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Neb. Dist. of Evangelical Luthern Synod of Mo., Ohio, & Other States v. McKelvie
...104 Neb. 93175 N.W. 531NEBRASKA DISTRICT OF EVANGELICAL LUTHERAN SYNOD OF MISSOURI, OHIO, AND OTHER STATES ET AL ... 21153.Supreme Court of Nebraska.Dec. 26, 1919 ... Syllabus by the Court.[175 N.W. 531]Statutes ... ...