Scopes v. State

• Citation: 289 S.W. 363
• Parties: SCOPES v. STATE.
• Decision Date: 17 January 1927
• Court: Supreme Court of Tennessee

Page 363

289 S.W. 363

SCOPES v. STATE.

Supreme Court of Tennessee.

January 17, 1927.

Error to Circuit Court, Rhea County; J. T. Raulston, Judge.

John Thomas Scopes was convicted for teaching in the public schools a certain theory denying the story of the divine creation of man as taught in the Bible and teaching instead thereof that man had descended from a lower order of animals, and he appeals in the nature of a writ of error. Reversed.

John Randolph Neal, of Knoxville, Clarence Darrow, of Chicago, Ill., Dudley Field Malone, of New York City, Frank Spurlock, of Chattanooga, Frank McErwee, of Rockwood, Robert S. Keebler, of Memphis, and Samuel J. Rosensohn, Walter H. Pollak, and Arthur Garfield Hays, all of New York City (Henry E. Colton and Thomas H. Malone, both of Nashville, of counsel), for plaintiff in error.

William Waller and Jordan Stokes, Sr., both of Nashville, Frank S. Carden, of Chattanooga, and Henry E. Colton, of Nashville, for Tennessee Academy of Science.

Charles H. Strong, of New York City, for Unitarian Laymen's League.

Frank M. Thompson, Atty. Gen., Ed. T. Seay and K. T. McConnico, both of Nashville (William Jennings Bryan, Jr., of Los Angeles, Cal., Charles T. Cates, Jr., of Knoxville, Keeble & Seay and Pitts, McConnico & Hatcher, all of Nashville, of counsel, and Robert Burrow, of Bristol, amicus curiæ), for the State.

GREEN, C. J.

Scopes was convicted of a violation of chapter 27 of the Acts of 1925, for that he did teach in the public schools of Rhea county a certain theory that denied the story of the divine creation of man, as taught in the Bible, and did teach instead thereof that man had descended from a lower order of animals. After a verdict of guilty by the jury, the trial judge imposed a fine of $100, and Scopes brought the case to this court by an appeal in the nature of a writ of error.

The bill of exceptions was not filed within the time fixed by the court below, and, upon motion of the state, at the last term, this bill of exceptions was stricken from the record. Scopes v. State, 152 Tenn. 424, 278 S. W. 57.

A motion to quash the indictment was seasonably made in the trial court raising several questions as to the sufficiency thereof and as to the validity and construction of the statute upon which the indictment rested. These questions appear on the record before us and have been presented and debated in this court with great elaboration.

Chapter 27 of the Acts of 1925, known as the Tennessee Anti-Evolution Act is set out in the margin.¹

While the act was not drafted with as much care as could have been desired, nevertheless there seems to be no great difficulty in determining its meaning. It is entitled:

"An act prohibiting the teaching of the evolution theory in all the Universities, normals and all other public schools in Tennessee, which are supported in whole or in part by the public school funds of the state, and to provide penalties for the violations thereof."

Evolution, like prohibition, is a broad term. In recent bickering, however, evolution has been understood to mean the theory which holds that man has developed from some preexisting lower type. This is the popular significance of evolution, just as the popular significance of prohibition is prohibition of the traffic in intoxicating liquors. It was in that sense that evolution was used in this act. It is in this sense that the word will be used in this opinion, unless the context otherwise indicates. It is only to the theory of the evolution of man from a lower type that the act before us was intended to apply, and much of the discussion we have heard is beside this case. The words of a statute, if in common use, are to be taken in their natural and ordinary sense. O'Neill v. State, 115 Tenn. 427, 90 S. W. 627, 3 L. R. A. (N. S.) 762; State ex rel. v. Turnpike Co., 2 Sneed (34 Tenn.) 90.

Thus defining evolution, this act's title clearly indicates the purpose of the statute to be the prohibition of teaching in the schools of the state that man has developed or descended from some lower type or order of animals.

When the draftsman came to express this purpose in the body of the act, he first forbade the teaching of "any theory that denies the story of the divine creation of man, as taught in the Bible" — his conception evidently being that to forbid the denial of the Bible story would ban the teaching of evolution. To make the purpose more explicit, he added that it should be unlawful to teach "that man has descended from a lower order of animals."

Supplying the ellipsis in section 1 of the act, it reads that it shall be unlawful for any teacher, etc. —

"to teach any theory that denies the story of the divine creation of man as taught in the Bible, and to teach instead [of the story on the divine creation of man as taught in the Bible] that man has descended from a lower order of animals."

The language just quoted illustrates what is called in rhetoric exposition by iteration. The different form of the iterated idea serves to expound the first expression of the thought. The undertaking of the statute was to prevent teaching of the evolution theory. It was considered this purpose could be effected by forbidding the teaching of any theory that denied the Bible story, but to make the purpose clear it was also forbidden to teach that man descended from a lower order of animals.

This manner of expression in written instruments is common, and gives use to the maxim of construction noscitur a sociis. Under this maxim subordinate words and phrases are modified and limited to harmonize with each other and with the leading and controlling purpose or intention of the act. For example, see Lewis' Southerland Stat. Const. § 415 et seq.; Caldwell & Co. v. Lea, 152 Tenn. 48, 272 S. W. 715.

It thus seems plain that the Legislature in this enactment only intended to forbid teaching that men descended from a lower order of animals. The denunciation of any theory denying the Bible story of creation is restricted by the caption and by the final clause of section 1.

So interpretated, the statute does not seem to be uncertain in its meaning nor incapable of enforcement for such a reason, notwithstanding the argument to the contrary. The indictment herein follows the language of the statute. The statute being sufficiently definite in its terms, such an indictment is good. State v. Odam, 2 Lea (70 Tenn.) 220; Villines v. State, 96 Tenn. 141, 33 S. W. 922; Griffin v. State, 109 Tenn. 17, 70 S. W. 61. The assignments of error, which challenge the sufficiency of the indictment and the uncertainty of the act, are accordingly overruled.

It is contended that the statute violates section 8 of article 1 of the Tennessee Constitution, and section 1 of the Fourteenth Amendment of the Constitution of the United States — the law of the land clause of the state Constitution, and the due process of law clause of the federal Constitution, which are practically equivalent in meaning.

We think there is little merit in this contention. The plaintiff in error was a teacher in the public schools of Rhea county. He was an employee of the state of Tennessee or of a municipal agency of the state. He was under contract with the state to work in an institution of the state. He had no right or privilege to serve the state except upon such terms as the state prescribed. His liberty, his privilege, his immunity to teach and proclaim the theory of evolution, elsewhere than in the service of the state, was in no wise touched by this law.

The statute before us is not an exercise of the police power of the state undertaking to regulate the conduct and contracts of individuals in their dealings with each other. On the other hand, it is an act of the state as a corporation, a proprietor, an employer. It is a declaration of a master as to the character of work the master's servant shall, or rather shall not, perform. In dealing with its own employees engaged upon its own work, the state is not hampered by the limitations of section 8 of article 1 of the Tennessee Constitution, nor of the Fourteenth Amendment to the Constitution of the United States.

In People v. Crane, 214 N. Y. 154, 108 N. E. 427, L. R. A. 1916D, 550, Ann. Cas. 1915B, 1254, the validity of a statute of that state, providing that citizens only should be employed upon public works was sustained. In the course of opinion (page 175 ), it was said:

"The statute is nothing more, in effect, than a resolve by an employer as to the character of his employees. An individual employer would communicate the resolve to his subordinates by written instructions or by word of mouth. The state, an incorporeal master, speaking through the Legislature, communicates the resolve to its agents by enacting a statute. Either the private employer or the state can revoke the resolve at will. Entire liberty of action in these respects is essential unless the state is to be deprived of a right which has heretofore been deemed a constituent element of the relationship of master and servant, namely, the right of the master to say who his servants shall (and therefore shall not) be."

A case involving the same statute reached the Supreme Court of the United States, and the integrity of the statute was sustained by that tribunal. Heim v. McCall, 239 U. S. 175, 36 S. Ct. 78, 60 L. Ed. 207, Ann. Cas. 1917B, 287. The Supreme Court referred to People v. Crane, supra, and approvingly quoted a portion of the language of Barrett, Chief Judge, that we have set out above.

At the same term of the Supreme Court of the United States an Arizona statute, prohibiting individuals and corporations with more than five workers from employing less than 80 per cent. thereof of qualified electors or native-born citizens of the United States was held invalid. Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283.

These two cases from the Supreme Court make plain the differing...