State ex rel. Finger v. Weedman, 6130.

• Court: Supreme Court of South Dakota
• Writing for the Court: BURCH
• Citation: 226 N.W. 348,55 S.D. 343
• Parties: STATE ex rel. FINGER v. WEEDMAN et al., School District Board, etc.
• Docket Number: No. 6130.,6130.
• Decision Date: 27 June 1929

55 S.D. 343
226 N.W. 348

STATE ex rel. FINGER
v.
WEEDMAN et al., School District Board, etc.

No. 6130.^*

Supreme Court of South Dakota.

June 27, 1929.

Appeal from Circuit Court, Meade County; James McNenny, Judge.

Action by the State, on the relation of August Finger, against Claude H. Weedman and others, as members of the School Board of Independent School District No. 8 of Meade County. Judgment for defendants, and plaintiff appeals. Reversed, with directions.

Sherwood, P. J., and Brown, J., dissenting.

[226 N.W. 348]

John T. Milek, of Sturgis, and Chambers Kellar, of Lead, for appellant.

John P. Everett, of Sturgis, and Ellwood & Knight, of Sioux Falls, for respondent.

BURCH, J.

Defendants compose the school board of independent school district No. 8, of Meade county, commonly known as the Faith school district. In February, 1925, they ordered that the Bible be read or the Lord's Prayer be repeated, without sectarian comment, in all of the schoolrooms wherein public school was being conducted. Pursuant to that order, passages of the King James version of the Bible were selected and read, or the Lord's Prayer was repeated, daily by the teachers in the several rooms, as an opening exercise, but no sectarian comment was made. Some 12 or 15 children of the Roman Catholic faith refused to attend the opening exercises, where such version of the Bible was read or such prayer repeated, and as a consequence thereof were expelled from the school and were not allowed to return, except upon condition that each, before returning, should sign a written apology and agreement as follows:

“Board of Education, Faith Independent School District No. 8: After being expelled from school on the 6th day of March, 1925, for disobedience to school regulations, I regret any action of disobedience and agree that, if I be admitted to the school again, I will comply willingly and cheerfully with all school regulations, including respectful attention to any scripture reading or other opening exercises that may be given. The reasons for such disobedience on the above date are that_____.

“[Signed] _____.”

This action was brought upon the relation of the father of one of such children in the circuit court of Meade county to compel the school board of mandamus to readmit his said child to the school without an apology, and thereafter to permit the child to absent himself during the reading of the King James version of the Bible. An alternative writ was issued, a hearing on the merits had, and thereupon the court made findings of fact, conclusions of law, and rendered judgment quashing and dissolving the writ and dismissing the action. Relator appeals from the judgment and an order denying a new trial.

Appellant contends that the order and acts of respondents invade his and his son's constitutional rights. All states of the Union, as well as the federal government, have constitutional provisions calculated to secure religious freedom. Such provisions, while differing somewhat in language, have the same general purpose. The meaning of the provisions of the several Constitutions have been before the courts for construction and application to facts similar to those in this case many times. The decisions are not in complete harmony, nor the reasoning always satisfactory. The lack of harmony is to some extent due to differences in the language of the provisions under consideration, and to what appears to be a too technical construction of such language. There is also an inherent difficulty in getting a truly judicial expression because of personal beliefs and prejudices of the judges making the decisions. The questions here presented are before this court for the first time, and the decisions of other states may be profitably considered and studied. The subject should be approached broad-mindedly, so as to uphold the spirit and purpose of the constitutional provisions, without technical reasons or construction. To do so we must have in mind the historical reasons for the constitutional guaranties. This country was not settled by men and women of no religious faith, but by people of fervent religious convictions, who were driven from their mother country by persecution because of those beliefs. They are responsible for the guaranties appearing in the Constitutions of the United States and the several states of the Union. They knew by actual experience the evils of governmental

[226 N.W. 349]

control of matters of religion, and therefore sought to secure in this country a religious freedom never before enjoyed in any country. The wisdom of their course is apparent when we consider the enlightened spiritual growth of our churches, the very general religious character of our people, the many sects existing in harmony with almost complete freedom of religious thought, and all free to worship God according to the dictates of conscience. Religion cannot be enforced by law; it must result from honest conviction. The advantage in separation of church and state is exemplified in our highly enlightened, free, and Christian nation. Whatever may be the language of the Constitutions, the primary purpose of each is to insure religious freedom. Any act which interferes which such liberty is necessarily contrary to the spirit and purpose of the Constitution, and therefore forbidden, whether expressly named therein or not, and, on the other hand, any act which does not so interfere is not unconstitutional unless expressly enumerated. The primary purpose to be obtained is of a two-fold character, one to insure personal freedom of conscience, and the other to prevent the support of any religious organization or sect by the state through public taxation.

This being a Christian nation, controversies seldom arise over the rights of other religious as opposed to the Christian religion, but the controversies are generally between sects of the Christian religion. Whether a Mohammedan or other believer in a religion opposed to Christianity would have the same right to object to practices tending to exalt Christianity over other religions need not here be decided. Some of the decisions seem to so hold, and use as an illustration the reading of the Koran, compared with the Bible. We can conceive some difference, and do not think such illustration apt. If the Koran was read or the prayer of a Mussulman repeated, it would not be in worship, while a reading of the Bible or the repeating of the Lord's Prayer is bound to be in a Christian nation reverenced for its religious meaning. We must take judicial notice of the character of the Bible and its meaning in this state. As said in Herold v. Parish Board, 136 La. 1034, 68 So. 116, Ann. Cas. 1916A, 806, L. R. A. 1915D, 941: “The ‘lessons and truths' contained in the Holy Bible, to be taught through reading by the teachers from the Bible to the children of the school, for the purpose of teaching morality, are read and taught as teachings from the inspired Word of God Himself. To read the Bible for the purpose stated requires that it be read reverently and worshipfully. As God is the author of the Book, He is necessarily worshipped in the reading of it.” To the believer the Bible is the Word of God and to all others reared under Christian influence, though not professed believers, the influence of the Bible and the reverence in which it is held is entirely different from the sacred writings of non-Christian sects.

The conclusion is inescapable that the reading of the Bible under the circumstances here disclosed was not for a secular purpose, but was, as found by the trial court, for the purpose of “increasing, improving, and inculcating morality, patriotism, reverence, and the developing of religious and Christian characters of the pupils.” To use the Bible, with the explanation that it was used as a mere code of morals or a book of history, would be to affront all Christian sects; to use it without explanation would be to use it in its generally accepted character. It is hardly adaptable for use in secular instruction without comment and analysis. Appellant's counsel aptly say: “No other book is read to the pupils of a common school under such extraordinary conditions-no book of profane history, no book of poems, no book of animal life, no book of painting, architecture, sculpture, or music. ‘King Lear’ may be commented upon at will, but the Book of Job, the first great drama, with its thundering passages, must be read unexplained! The Philippics of Demosthenes, vitalizing the atrophied patriotism of his Athenian countrymen, may be discussed and debated, but not the eloquence of Paul, with its denunciation of pagan gods and its inspired defense of Christianity! The ‘Idylls of the King’ are hedged with no such limitations, but Ruth must glean in the field of Boaz without either praise or blame, tribute or comment! How is it possible to approve the reading of the Holy Bible without comment as a book of secular instruction?”

There is much force to this argument. The legitimate function of our public schools is to impart secular knowledge, and there can be no proper limitation on the comment necessary to impart such knowledge, if the subject is to be taught at all. On the other hand, under our system of government, religious teaching is committed to individuals and religious organizations not supported by the state, where religious books are used with unlimited right of comment. The limitation on the right of comment discloses the purpose of the order of the school board to enter the field of religious instruction, but not into sectarian controversy. It may seem that in the field of religion, occupied solely by sects of one religion, there should be some margin where there is no dispute between those sects; but at the outset a difficulty arises over the authenticity of the Scriptures upon which the sects are founded.

In the instant case the dispute arises over the reading of the King James version of the Bible, which is acceptable...