Scopes v. State , 154 Tenn. 105 ( 1927 )

^* As to necessity of following language of statute defining offense in indictment, see 14 R.C.L., pp. 185, 187; 3 R.C.L. Supp., 191, 4 R.C.L. Supp., 885, 5 R.C.L. Supp., 751; 6 R.C.L. Supp., 802. 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.The State, 152 Tenn. 424.

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.

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 of 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 pre-existing 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 this 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 indictes. 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; State exrel. v. Turnpike Co., 34 Tenn. (2 Sneed), 90.

Thus defending evolution the 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 of 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 give 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 examples see Lewis' Sutherland Stat. Const., sec. 414, et seq.; Caldwell Co. v.Lea, 152 Tenn. 48.

It thus seems plain that the Legislature in this enactment only intended to forbid teaching that man 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 interpreted the Statute does not seem to be uncertain in its meaning nor incapable of enforcement for such a reason, notwithstanding the great 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. Odom, 70 Tenn., (2 Lea), 220;Villines v. State, 96 Tenn. 141; Griffin v. State,109 Tenn. 17. The assignments of error which challenge the sufficiency of the indictment and the certainty 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 to 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, 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, p. 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 constitutent 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, 60 L.Ed., 207. 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 eighty percent thereof of qualfied electors or native born citizens of the United States was held invalid. Truax v. Raich, 239 U.S. 33, 60 L.Ed., 131.

These two cases from the Supreme Court make plain the differing tests to be applied to a Statute regulating the State's own affairs and a Statute regulating the affairs of private individuals and corporations.

A leading case is Atkin v. Kansas, 191 U.S. 207, 48 L.Ed., 148. The court there considered and upheld a Kansas Statute making it a criminal offense for a contractor for a public work to permit or require an employee to perform labor upon that work in excess of eight hours each day. In that case it was laid down:

". . . For whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the State to declare that no one undertaking work for it or for one of its municipal agencies should permit or require an employee on such work to labor in excess of eight hours each day, and to inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard to the wishes of the State. On the contrary, it belongs to the State, as the guardian and trustee for its people, and having control of its affairs, to prescribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipalities. No court has authority to review its action in that respect. Regulations on this subject suggest only considerations of public policy. And with such considerations the courts have no concern."

In Ellis v. United States, 206 U.S. 246, 51 L.Ed., 1047,Atkin v. Kansas, was followed and an Act of Congress sustained which prohibited, under penalty of fine or imprisonment, except in case of extraordinary emergency, the requiring or permitting laborers or mechanics employed upon any of the public works of the United States or of the District of Columbia to work more than eight hours each day.

These cases make it obvious that the State or Government, as an incident to its power to authorize and enforce contracts for public service, "may require that they shall be carried out only in a way consistent with its views of public policy and punish a departure from that way." Ellis v. United States, supra.

To the same general effect is Waugh v. Board of Trustees,237 U.S. 589, 59 L.Ed., 1131, in which a Mississippi Statute was sanctioned that prohibited the existence of Greek letter fraternities and similar societies in the State's educational institutions, and deprived members of such societies of the right to receive or compete for diplomas, class honors, etc.

This court has indicated a like view in Leeper v. TheState, 103 Tenn. 500, in which the constitutionality of chapter 205 of the Acts of 1899, known as the "Uniform Text Book Law," was sustained. In the opinion in that case, Judge WILKES observed "If the authority to regulate and control schools in legislative, then it must have an unrestricted right to prescribe methods, and the courts cannot interfere with it unless some scheme is devised which is contrary to other provisions of the Constitution. . . ."

In Marshall Bruce Co. v. City of Nashville, 109 Tenn. 459, the charter of the City of Nashville required that all contracts for goods and supplies furnished the city, amounting to over $50, must be let out at competitive biddings to the lowest responsible bidder. In the face of such a charter provision, an ordinance of the city, which provided that all city printing should bear the union label, was held unauthorized. Necessarily so. The lowest bidder, provided he was responsible, was entitled to such a contract, whether he employed union labor, and was empowered to affix the union label to his work, or not. Other things said in that case were not necessary to the decision.

Truax v. Raich, supra; Meyer v. Nebraska,262 U.S. 390; Pierce v. Society of Sisters of the Holy Name,268 U.S. 510, and other decisions of the Supreme Court of the United States, pressed upon us by counsel for plaintiff in error deal with Statutes affecting individuals, corporations and private institutions, and we do not regard these cases as in point.

Since the State may prescribe the character and the hours of labor of the employees on its works, just as freely may it say what kind of work shall be performed in its service — what shall be taught in its schools, so far at least as section 8 of article 1 of the Tennessee Constitution, and the Fourteenth Amendment to the Constitution of the United States are concerned.

But it is urged that chapter 27 of the Acts of 1925 conflicts with section 12 of article 11, the Education clause, and section 3 of article 1, the Religious Preference clause of the Tennessee Constitution. It is to be doubted if the plaintiff in error, before us only as the State's employee, is sufficiently protected by these constitutional provisions to justify him in raising such questions. Nevertheless as the State appears to concede that these objections are properly here made, the court will consider them.

The relevant portion of section 12 of article 11 of the Constitution is in these words:

". . . It shall be the duty of the General Assembly in all future periods of this government to cherish Literature and Science."

The argument is that the theory of the descent of man from a lower order of animals is now established by the preponderance of scientific thought and that the prohibition of the teaching of such theory is a violation of the legislative duty to cherish Science.

While this clause of the Constitution has been mentioned in several of our cases, these references have been casual, and no Act of the Legislature has ever been held inoperative by reason of such provision. In one of the opinions in Green v. Allen, 24 Tenn. (5 Humph.), 170, the provision was said to be directory. Although this court is loath to say that any language of the Constitution is merely directory, State v. Burrow, 119 Tenn. 376; Webb v. Carter, 129 Tenn. 182, we are driven to the conclusion that this particular admonition must be so treated. It is too vague to be enforced by any court. To cherish Science means to nourish, to encourage, to foster Science.

In no case can the court directly compel the Legislature to perform its duty. In a plain case the court can prevent the Legislature from transgressing its duty under the Constitution by declaring ineffective such a legislative Act. The case, however, must be plain and the legislative Act is always given the benefit of any doubt.

If a bequest were made to a private trustee with the avails of which he should cherish Science and there was nothing more, such a bequest would be void for uncertainty. Green v. Allen, 24 Tenn. (5 Humph.), 17[*]; Ewell v. Sneed, 136 Tenn. 602, and cases cited. It could not be enforced as a charitable use in the absence of prerogative power in this respect which the courts of Tennessee do not possess. A bequest in such terms would be so indefinite that our courts could not direct a proper application of the trust fund nor prevent its misapplication. The objects of such a trust could not be ascertained.

If then the courts of Tennessee are without power to direct the administration of such a trust by an individual, how can they supervise the administration of such a trust by the Legislature? It is a matter of far more delicacy to undertake the restriction of a co-ordinate branch of government to the terms of a trust imposed by the Constitution than to confine an individual trustee to the terms of the instrument under which he functions. If language be so indefinite as to preclude judicial restraint of an individual, such language could not possibly excuse judicial restraint of the General Assembly.

If the Legislature thinks that by reason of popular prejudice, the cause of education and the study of Science generally will be promoted for forbidding the teaching of evolution in the schools of the State, we can conceive of no ground to justify the courts' interference. The courts cannot sit in judgment on such Acts of the Legislature or its agents and determine whether, or not, the omission or addition of a particular course of study tends "to cherish Science."

The last serious criticism made of the Act is that it contravenes the provision of section 3 of article 1 of the Constitution, "that no preference shall ever be given by law to any religious establishment or mode of worship."

The language quoted is a part of our Bill of Rights, was contained in the first Constitution of the State adopted in 1796, and has been brought down into the present Constitution.

At the time of the adoption of our first Constitution, this government had recently been established and the recollection of previous conditions was fresh. England and Scotland maintained State churches as did some of the Colonies, and it was intended by this clause of the Constitution to prevent any such undertaking in Tennessee.

We are not able to see how the prohibition of teaching the theory that man has descended from a lower order of animals gives preference to any religious establishment or mode of worship. So far as we know there is no religious establishment or organized body that has its creed or confession of faith any article denying or affirming such a theory. So far as we know the denial or affirmation of such a theory does not enter into any recognized mode of worship. Since this cause has been pending in this court, we have been favored, in addition to briefs of counsel and various amici curiae, with a multitude of resolutions, addresses and communications from scientific bodies, religious factions, and individuals giving us the benefit of their views upon the theory of evoluton. Examination of these contributions indicates that Protestants, Catholics, and Jews are divided among themselves in their beliefs, and that there is no unanimity among the members of any religious establishment as to this subject. Belief or unbelief in the theory of evolution is no more a characteristic of any religious establishment or mode of worship than is belief or unbelief in the wisdom of the prohibition laws. It would appear that members of the same churches quite generally disagree as to these things.

Furthermore, chapter 27 of the Acts of 1925 requires the teaching of nothing. It only forbids the teaching of the evolution of man from a lower order of animals. Chapter 102 of the Acts of 1915 requires that ten verses from the Bible be read each day at the opening of every public school, without comment and provided the teacher does not read the same verses more than twice during any session. It is also provided in this Act that pupils may be excused from the Bible readings upon the written request of their parents.

As the law thus stands, while the theory of evolution of man may not be taught in the schools of the State, nothing contrary to that theory is required to be taught. It could scarcely be said that the statutory scriptural reading just mentioned would amount to the teaching of a contrary theory.

Our school authorities are, therefore, quite free to determine how they shall act in this state of the law. Those in charge of the educational affairs of the State are men and women of discernment and culture. If they believe that the teaching of the Science of Biology has been so hampered by chapter 27 of the Acts of 1925 as to render such an effort no longer desirable, this course of study may be entirely omitted from the curriculum of our schools. If this be regarded as a misfortune, it must be charged to the Legislature. It should be repeated that the Act of 1925 deals with nothing but the evolution of man from a lower order of animals.

It is not necessary now to determine the exact scope of the Religious Preference clause of the Constitution and other language of that section. The situation does not call for such an attempt. Section 3 of article 1 is binding alike on the Legislature, and the school authorities. So far, we are clear that the Legislature has not crossed these constitutional limitations. If hereafter, the school authorities should go beyond such limits, a case can then be brought to the courts.

Much has been said in argument about the motives of the Legislature in passing this Act. But the validity of a Statute must be determined by its natural and legal effect, rather than proclaimed motives. Lochner v. New York, 198 U.S. 45;Grainger v. Douglas Park Jockey Club, 148 Fed. 513; 6 R.C.L. 111, 81.

Some other questions are made but in our opinion they do not merit discussion, and the assignments of error raising such questions are overruled.

This record discloses that the jury found the defendant below guilty but did not assess the fine. The trial judge himself undertook to impose the minimum fine of $100 authorized by the Statute. This was error. Under section 14 of article 6 of the Constitution of Tennessee, a fine in excess of $50 must be assessed by a jury. The Statute before us does not permit the imposition of a smaller fine than $100.

Since a jury alone can impose the penalty this Act requires and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine and we are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. The State, 153 Tenn. 198.

The court is informed that the plaintiff in error is no longer in the service of the State. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary we think the peace and dignity of the State, which all criminal prosecutions are brought to redress, will be the better conserved by the entry of a nolle prosequi herein. Such a course is suggested to the Attorney-General.

Mr. Justice SWIGGART took no part in the decision. He came on this bench upon the death of Mr. Justice HALL, after the argument and submission hereof.