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discussion, held that, on the facts in the case, the father had the right to direct as to the study of geography by his son. no occasion for differing with the court in that case. In the course of the opinion it is said, “it is not proposed to throw any obstacle in the way of the performance of their duties” by the school board. Again, “ we do not propose to lay down any rulo which will interfere with any reasonable regulation adopted for the management and government of the public schools, or which will operate against their efficiency and usefulness. Certain studies are required to be taught in the public schools by statute. The rights of one pupil must be so exercised undoubtedly as not to prejudlice the equal rights of others. But the parent has the right to make a reasonable selection from the prescribed studies for his child to pursue, and this cannot possibly conflict with the equal rights of other pupils. In the present case the parent did not insist that his child should take any study outside of the prescribed course. "And how it can result disastrously to the proper discipline, efficiency and well-being of the common schools to concede the paramount right to make a reasonable choice from the studies in the prescribed course which his child shall pursue, is a proposition we cannot understand.” And this, as well as all that was said by the judge, is to be taken as said in a case where there was no rule as to the study of geography by the boy, except the personal arbitrary command upon him of the teacher. Ilow this court would decide in a case involving the question of superiority of authority between the parent and the school board, as to the pursuit of a study required by the established rule of the board, we have now no occasion to announce or intimate. Nor had that court any such question before it.
In this connection it is interesting to refer to the case of Spiller v. Woburn, 12 Allen 127, in which a girl, by direction of her father, refused to bow her head during prayer at the opening of the school, and where the father refused to request that she might not be required to, the rule on that subject providing that scholars would not be required to, whose parents should request that they might not be so required. Ch. J. BIGELOW delivered the opinion of the court, which held that it was lawful for the committee to expel her from the school for such disobedience to the rule. And further in the same connection, the case of Spear v. Cummings, 23 Pick. 22+, is worthy of attention, in which Ch. J. Shaw says, The law provides that every town shall choose a school committee, who shall have the general charge and superintendence of all the public schools in such towns;" that “this includes the power of determining what pupils shall be received and what pupils rejected. The committee may, for good cause, determine that some shall not be received, as, for instance, if infected with any contagious disease, or if the pupil or parents shall refuse to comply with regulations necessary to the discipline and good management of the school."
These cases show the judicial views that have been held on the subject under consideration, and suffice for the present.
Recurring now to what is stated in the answer, as to the manner in which the rule has been administered, it is proper to remark, that the lawfulness and propriety of the rule are not to be tested or adjudged, upon the presumption that the penal part of it will be unjustly or 'unwarrantably enforced. The presumption is the other way, viz. : that it will be administered justly, and upon, and with reference to, warrantable occasion. If a case should arise in which it should appear that the penalty had been inflicted outside of, or beyond the fair scope and reason of the rule, it would be both the province and the duty of the courts to accord proper remedy. But, as before demonstrated, this is not such a case; and this leads to the further remark, that the remedy is not sought in this case as against the refusal of leave to be absent on the 4th of June; but as against the imposing, as the condition of remitting the penalty, a promise that absence for a similar cause should not be repeated that term. Such promise being refused, the penalty of exclusion was not remitted, and the children did not return to the schools. And hence the position assumed by the orators—the same as already stated—that the committee had not the lawful right to exclude scholars who should be absent by the direction of their parents, contrary to the established rule of the school.
As before intimated, this position takes no account of any difference of occasion or reason for such direction of parents, whether it be religious service, or secular employment, or amusement, but is on the ground only of the right of the parent as against the rule of the school. In reference to that position, in explicit statement, as the result of the discussion, it is held, that scholars of a school are amenable to the school authorities as to their conduct as scholars affecting the school, notwithstanding the prerogative of their parents in respect to them.
This, however, does not innply that committees or teachers are the ultimate judges whether their measures, either by prescribed rule, or extemporized, expedient or impulsive act, are lawfully requisite or proper in a given case. The statute, in imposing the duty of adopting all requisite measures, &c., does not confer ultimate jurisdiction on committees of the question whether a particular measure is requisite or not, within the sense and intent of the statute. When such question of lawfulness under the statute is made between a party, against whom the measure operates, and the committee or teacher, that question is open before the courts for consideration and decision, in view of all that appertains to the subject of it. The rule in question in this case, and the enforcement of it, are subject to the judgment of the courts as between the parties to the suit. It is easy to suppose cases in which such enforcement would be beyond the lawful right of the committee. The rule itself, in terms and intent, contemplates exclusion as a penalty only where permission to be absent is withheld for want of reasonable cause shown. In case of casual sickness of the scholar -of sickness or death in the family of the scholar—of some impediment, like fire or flood—in case of various incidents of current life, giving occasion for temporary absence, the enforcement of the penalty of exclusion would, under circumstances, be adjudged to be unauthorized under the statutes and law by which the subject is governed.
It is not intended by this to be held that there may not be cases in which the decision and action of the committee or teacher would not be deemed judicial and final. That subject has been involved in many of the decided cases, under peculiar statutes, especially in Maine and Massachusetts. We have no occasion to pronounce upon it further in this case.
Upon the facts shown, we are unable to find any warrant of law for maintaining the bill.
The decree dismissing it is affirmed.
The following seem to be the leading penalty of continued exclusion from facts upon which the case rests :
school. 1. There is a distinct refusal of the 2. This is confirmed by the comteachers to allow the Catholic children mittee, and what is said about the short to absent themselves from the school, in or imperfect notice is clearly waived by order to attend the service of their persisting in the claim. church on holy days, and a persistent 3. There can be no doubt the 4th of claim to demand the contrary, upon June was a high festival in the Roman
church, and that the teachers knew the conscience in the free cxercise of religious day before that this church so regarded worship.” We have emphasizeil thesc it, and desired their children to attend words because they seem to us, peculiarly the services.
expressive of a settled determination 4. There can be no question both the in those who ordained them, as the perparents and the priest desired, and re- petual basis of religious freedom in quired, the children to attend service in the state, to leave no ground for mischurch on that day, and that this was understanding or evasion, If these sufficiently made known both to the words do not place the rights of conteachers and the committee.
science in regard to freedom of reli5. There can be no question also gious worship, above legislative control, that, with all this knowledge, both then it seems to us difficult, if not imteachers and committee concurred in possible, to conceive of any which refusing permission.
would have that effect. And the history 6. It seems equally clear that they of these provisions in the other also concurred in refusing such children American state constitutions, and the as attended the service, permission to
motives which induced them, as fully return to the school, except upon their set forth in the opinion, would not allow assurance that it woulil not be repeated, us to suppose the framers of these conthus clearly trcating them as being in stitutional provisions meant anything the wrong for attending such service, less than their words import. and that they might rightfully be pun
And when we come to look into the ished for the same.
laws of this state in regard to schools, These facts being established, two we find no provisions calculated to questions scem fairly involved in the justify the exercise of any such inter
(1.) Whether in case of conflict ference with religious worship as was the conductors of the school may lawfully here attempted. Every town is reinsist upon their rules and regulations, quired to maintain setting aside those of the church where schools for the instruction of the young, the children receive religious education ;' in orthography, reading, writing, Enin other words, how far school education glish grammar, geography, arithmetic, may interfere with or supersede reli- history, and Constitution of the United gious education ? (2.) Ilow for the States, and good behavior." We school laws or regulations will control
should be somewhat at a loss to conjecthe right of the parents to direct the ture upon what ground any governor attendance of their children upon reli
of the schools, under these provisions, gious services, and expose the children could assert any such stringent disci. to punishment for obeying their parents pline as was attempted in this case. It in this respect ?
is pretty certain that compelling the The answer to these questions will children to disobey their parents, or depend upon the laws of the state. The punishing them for refusing to do so, provision of the Constitution will, of would not, ordinarily, be regarded as course, override all legislation upon the the natural mode of teaching “ good subject in conflict with such provision. behavior” to them, or it surely would The clause bearing directly upon this not have been so regarded when that point, as stated in the opinion, is : provision in the statute was first incor“ That no authority can or ought to be porated into the school laws of the vested in, or assumed by any power whet- state And we cannot suppose any «rer, that shall in any case interfere with, one would believe any such stringency or in any manner contro? the rights of of discipline indispensable for the suc
cessful teaching of any or all the wonld wish to train up his children in branches of study required by the so irregular a manner ? We think this statute. But if we may suppose that matter is not fully comprehended by to have been the fact in this case, it most of the Protestants. They have will not conclude the rights of those no daily service and no great festivals. who compose the school, since no Their week-day meetings are held school regulations can possess authority mostly in the crenings, and it does not superior to the statute, and no statute occur to then why the Catholic church of that character could override an ex- may not do the same. But that church press constitutional provision to the con- is bound to have daily morning service trary. We must conclude, therefore, throughout the year, and on festivals, that the defendants were not justified in high mass, and all before 12 o'clock what they did, because the Constitution noon. So that it will require them to of the state guarantees entire immunity begin at midnight, as it were, certainly from all interference with religious at a very inconvenient hour, at some worship to all its inhabitants.
seasons of the year in this high latitude, It scarcely seems necessary to allude in order to finish before school hours. to the suggestion, whether there can be And then, the children would be in no any question of conscience involved in condition to perform their school duties celebrating “ Corpus Christi” in the after so protracted a service in church. Roman church. It is confessedly one of It is evident that those who argue for its high festivals, and has been so for such an accommodation must do it under hundreds of years.
But there seems to some misapprehension of the facts. have been some idea thrown out, that
And what is said about these parents it might be celebrated at an hour not or priests, not considering the day too interfering with the schools. But this holy for their children to play in the suggestion probably proceeds from want streets in the afternoon, must cqually of knowledge of the requirements of proceed from similar misapprehension. that church. Such a festival can only
That church never considers it any debe properly celebrated by high mass, parture from the strictest observance of where the church have the musical ap- its festivals to recrcate in the afternoon. pliances for such masses, and this must
Even their fasts are not observed so be celebrated before 12 o'clock, noon, much by long-facedness as by bona fide and must therefore begin as early as 9 abstinence and self-denial. No branch o'clock, A. M.; and all will feel the ab- of the Catholic church ever regarded surdity of requiring it to begin at 6 A. Sunday any more sacred than its other M., in order to finish before school festivals, but less so than many others; hours This is, in fact, never done in that is wholly a Protestant idea and that church, if it be allowable even, mainly Puritan. which we question. At all events, if
Possibly Protestants would comprethe rights of worship are made by the hend this question more fully, if we organic law of the state, superior to supposed the laws of the state to require legislative control even, it would seem the scholars in the common schools to little less than absurd to have rules of attend some moral or philosophic lecschool attendance attempt to overrule ture, in some grand hall, on Sunday the canons of the church, which have morning from 9 o'clock to 12 o'clock. been observed for hundreds of years. And there is nothing to hinder the Any such untimely celebration of the legislature doing this, except this same day would not be, to the devout wor. Art. III., guarintying freedom of relishipper, a celebration at all. And who gious worship, which does indeed also