268
PIERCE,
Governor of
v.
SOCIETY OF THE SISTERS OF THE HOLY NAMES OF JESUS AND MARY.
SAME
v.
Nos.
583, 584.
Argued March 16 and 17, 1925.
Decided
[268
[268
[268
Messrs.
George E. Chamberlain, of
Mr. John
C. Veatch, of
[268
Mr.
Justice McREYNOLDS delivered the opinion of the Court.
These
appeals are from decrees, based upon undenied allegations, which granted
preliminary orders restraining [268
U.S. 510, 530]
appellants from threatening or attempting to enforce the
Compulsory Education Act1 adopted November 7, 1922 (Laws Or. 1923, p. 9), under
the initiative provision of her Constitution by the voters of Oregon. Judicial
Code, 266 (
The
challenged act, effective September 1, 1926, requires every parent, guardian, or
other person having control or charge or custody of a child between 8 and 16
years to send him 'to a public school for the period of time a public school
shall be held during the current year' in the district where the child resides;
and failure so to do is declared a misdemeanor. There are [268
U.S. 510, 531]
exemptions-not specially important here-for children who are not
normal, or who have completed the eighth grade, or whose parents or private
teachers reside at considerable distances from any public school, or who hold
special permits from the county superintendent. The manifest purpose is to
compel general attendance at public schools by normal children, between 8 and
16, who have not completed the eight grade. And
without doubt enforcement of the statute would seriously impair, perhaps
destroy, the profitable features of appellees' business and greatly diminish the
value of their property.
Appellee
the Society of Sisters is an Oregon corporation, organized in 1880, with power
to care for orphans, educate and instruct the youth, establish and maintain
academies or schools, and acquire necessary real and personal [268
U.S. 510, 532]
property. It has long devoted its property and effort to the
secular and religious education and care of children, and has acquired the
valuable good will of many parents and guardians. It conducts interdependent
primary and high schools and junior colleges, and maintains orphanages for the
custody and control of children between 8 and 16. In its primary schools many
children between those ages are taught the subjects usually pursued in
After
setting out the above facts, the Society's bill alleges that the enactment
conflicts with the right of parents to choose schools where their children will
receive appropriate mental and religious training, the right of the child to
influence the parents' choice of a school, the right of schools and teachers
therein to engage in a useful business or profession, and is accordingly
repugnant to the Constitution and void. And, further, that unless enforcement of
lthe measure is enjoined the corporation's business and property will suffer
irreparable injury.
Appellee
Hill Military Academy is a private corporation organized in 1908 under the laws
of Oregon, engaged [268
U.S. 510, 533]
in owning, operating, and conducting for profit an elementary,
college preparatory, and military training school for boys between the ages of 5
and 21 years. The average attendance is 100, and the annual fees received for
each student amount to some $800. The elementary department is divided into
eight grades, as in the public schools; the college preparatory department has
four grades, similar to those of the public high schools; the courses of study
conform to the requirements of the state board of education. Military
instruction and training are also given, under the supervision of an army
officer. It owns considerable real and personal property, some useful only for
school purposes. The business and incident good will are very valuable. In order
to conduct its affairs, long time contracts must be made for supplies,
equipment, teachers, and pupils. Appellants, law officers of the state and
county, have publicly announced that the Act of
The
Academy's bill states the foregoing facts and then alleges that the challenged
act contravenes the corporation's rights guaranteed by the Fourteenth Amendment
and that unless appellants are restrained from proclaiming its validity and
threatening to enforce it irreparable injury will result. The prayer is for an
appropriate injunction.
No answer
was interposed in either cause, and after proper notices they were heard by
three judges (Judicial Code, 266 [
No
question is raised concerning the power of the state reasonably to regulate all
schools, to inspect, supervise and examine them, their teachers and pupils; to
require that all children of proper age attend some school, that teachers shall
be of good moral character and patriotic disposition, that certain studies
plainly essential to good citizenship must be taught, and that nothing be taught
which is manifestly inimical to the public welfare.
The
inevitable practical result of enforcing the act under consideration would be
destruction of appellees' primary schools, and perhaps all other private primary
schools for normal children within the state of
Under the
doctrine of Meyer v.
Appellees
are corporations, and therefore, it is said, they cannot claim for themselves
the liberty which the Fourteenth Amendment guarantees. Accepted in the proper
sense, this is true. Northwestern Life Ins. Co. v. Riggs, 203
U.S. 243, 255 , 27
The
courts of the state have not construed the act, and we must determine its
meaning for ourselves. Evidently it was expected to have general application and
cannot be construed as though merely intended to amend the charters of certain
private corporations, as in Berea College v. Kentucky, 211
U.S. 45 , 29 S. Ct. 33. No argument in favor of such view has been advanced.
Generally,
it is entirely true, as urged by counsel, that no person in any business has
such an interest in possible customers as to enable him to restrain exercise of
proper power of the state upon the ground that he will be de prived [268
U.S. 510, 536]
of patronage. But the injunctions here sought are not against the
exercise of any proper power. Appellees asked protection against arbitrary,
unreasonable, and unlawful interference with their patrons and the consequent
destruction of their business and property. Their interest is clear and
immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan, and
Terrace v. Thompson, supra, and many other cases where injunctions have issued
to protect business enterprises against interference with the freedom of patrons
or customers. Hitchman Coal & Coke Co. v. Mitchell, 245
U.S. 229 , 38
The suits
were not premature. The injury to appellees was present and very real, not a
mere possibility in the remote future. If no relief had been possible prior to
the effective date of the act, the injury would have become irreparable.
Prevention of impending injury by unlawful action is a well-recognized function
of courts of equity.
The
decrees below are affirmed.
[
Footnote
1 ] Be it enacted by the people of the state of
Section
1. That section 5259, Oregon Laws, be and the same is
hereby amended so as to read as follows:
Sec.
5259. Children Between the Ages of Eight and Sixteen
Years.-Any parent, guardian or other person in the state of Oregon, having
control or charge or custody of a child under the age of sixteen years and of
the age of eight years or over at the commencement of a term of public school of
the district in which said child resides, who shall fail or neglect or refuse to
send such child to a public school for the period of time a public school shall
be held during the current year in said district, shall be guilty of a
misdemeanor and each day's failure to send such child to a public school shall
constitute a separate offense; provided, that in the following cases, children
shall not be required to attend public schools:
(a)
Children Physically Unable.-Any child who is abnormal, subnormal or physically
unable to attend school.
(b)
Children Who Have Completed the Eighth Grade.-Any child who has completed the
eighth grade, in accordance with the provisions of the state course of study.
(c)
Distance from School.-Children between the ages of eight and ten years,
inclusive, whose place of residence is more than one and one-half miles, and
children over ten years of age whose place of residence is more than three
miles, by the nearest traveled road, from a public school; provided, however,
that if transportation to and from school is furnished by the school district,
this exemption shall not apply.
(d)
Private Instruction.-Any child who is being taught for a like period of time by
the parent or private teacher such subjects as are usually taught in the first
eight years in the public school; but before such child can be taught by a
parent or a private teacher, such parent or private teacher must receive written
permission from the county superintendent, and such permission shall not extend
longer than the end of the current school year. Such child must report to the
county school superintendent or some person designated by
him at least once every three months and take an examination in the work
covered. If, after such examination, the county superintendent shall determine
that such child is not being properly taught, then the county superintendent
shall
order the parent, guardian or other person, to send such child to the public
school the remainder of the school year.
If any
parent, guardian or other person having control or charge or custody of any
child between the ages of eight and sixteen years, shall fail to comply with any
provision of this section, he shall be guilty of a misdemeanor, and shall, on
conviction thereof, be subject to a fine of not less than $5, nor more than
$100, or to imprisonment in the county jail not less than two nor more than
thirty days, or by both such fine and imprisonment in the discretion of the
court.
This act
shall take effect and be and remain in force from and after the first day of
September, 1926.