296 F. 928 | D. Or. | 1924
(after stating the facts as above).
“The act undertakes to operate directly upon the employment of aliens, and if enforced would compel the employer to discharge a sufficient number of his employees to bring the alien quota within the prescribed limit. It sufficiently appears that the discharge of the complainant will be solely for the purpose of meeting the requirements of the act and avoiding threatened prosecution under its provisions. It is therefore idle to call the injury indirect or remote.”
The pertinency of the court’s .conclusion is the more manifest in view of its previous declaration, as a premise, that the—
“employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion, and, by the weight of authority, the unjustified interference of third persons is actionable, although the employment is at will.”
Likewise, in Terrace et al. v. Thompson, Attorney General of the State of Washington, supra, which was a suit to enjoin the enforcement of the anti-alien land law of that state, it appears that the Terraces and one Nakatsuka, a Japanese and an alien, were desirous of entering into a lease of realty belonging to the former. Against the contention of the Attorney General that the parties had an adequate remedy at law, the court replied among other things:
“The owners have an interest in the freedom of the alien, and he has an interest in their freedom, to make the lease. The state act purports to operate directly upon the consummation of the proposed transaction between them, and the threat and purpose of the Attorney General to enforce the punishments and forfeiture prescribed prevents each from dealing with the other.”
The same principle is directly involved, though not discussed, in the case of Nebraska District of Evangelical Lutheran Synod v. McKelvie et al., 262 U. S. 404, 43 Sup. Ct. 628, 67 L. Ed.-, read in connection with Meyer v. Nebraska, 262 U. S. 390, 43 Sup. Ct. 625, 67 L. Ed. 1042.
It can scarcely be contended that complainants’' right to carry on their schools, whether parochial or private, is not a property right, and the right of parents and guardians to send their children and wards to such schools as they may desire, if not in conflict with lawful requirements, is a privilege they inherently are entitled to enjoy. Meyer v. Nebraska, supra, and Nebraska District of Evangelical Lutheran Synod v. McKelvie et al., supra, seem to affirm the propositions. See, also, C., M. & St. Paul R. R. Co. v. Wisconsin, 238 U. S. 491, 35 Sup. Ct. 869, 59 L. Ed. 1423, L. R. A. 1916A, 1133; Adkins et al. v. Children’s Hospital and Adkins et al. v. Lyons (Nos. 795, 796) 261 U. S. 525, 43 Sun. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238.
It is at once obvious that, in the very nature of the upbuilding and maintenance of parochial and private schools, when the attendance, prospective as well as acquired, is taken away or rendered unlawful, it will destroy the pursuit or occupation. If school buildings have been constructed, and equipment purchased and provided, without school attendance such property must lapse into disuse, and become of no value for the purposes for which it was designed, and, of course, an irreparable loss will ensue — the paramount loss of school attendance, and a damage and practical destruction, especially for school purposes, of the school property. '
Now, although the time at which the act is to become effective is somewhat remote, it is quite apparent, from the allegations of the bills, the work of destruction of complainants’ occupation has already set in. They are losing their patronage, traceable directly to the fact that the act is a statute duly adopted and promulgated. Parents are looking to the future, and are laying their plans to meet the exigencies to arise.
Nor is it an answer to the dilemma that the act may be repealed before it becomes operative, or that ample opportunity is afforded for the people or the Legislature to amend it, so as to present a radically different question from that now involved. In all probability its provisions will remain as they now are until they become operative and the damage is done, for it is not usual to amend or repeal statutes, at least until their effect has been tested. The very purpose of placing the effective date so far' ahead was to give ample time for the párochial and private schools to adjust themselves to the new conditions, which is really a confession on the part of the law givers that such schools are going to be hurt, and that seriously, if not irreparably. It must be true, as expressed by Mr. Justice Brewer while sitting in the Circuit Court of Nebraska :
“That the powers of .a court of equity are as vast, and its processes and procedure as elastic, as all the changing emergencies of increasingly complex business relations and the protection of rights can demand” — quoted in Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 746, 751, 19 L. R. A. 395.
“rather upon the necessities of mankind, and the gjceat principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages, and all people.” Dodge v. Cole,, 97 Ill. 338, 364 (37 Am. Rep. 111).
“Courts may amplify remedies and apply rules and general principles for the advancement of substantial justice.” 32 Corpus Juris, p. 34, § 13.
“But it is one of the most valuable features of equity jurisdiction, to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable. The exercise of such jurisdiction is for the benefit of both*935 parties; in disclosing to the defendant that he is proceeding without warrant of law, and in protecting the complainant from injuries which, if inflicted, would be wholly destructive of his rights.”
See, further, Detroit Creamery Co. v. Kinnane (D. C.) 264 Fed. 845, affirmed 255 U. S. 102, 41 Sup. Ct. 304, 65 L. Ed. 531.
The case of Terrace v. Thompson, supra, is one where, though the act was effective, there was no violation thereof by the parties concerned. Yet a suit to enjoin its enforcement was sustained, on the ground that a violation of the act would subject the offenders to the penalty subjoined. Nor are we without precedent for the application of injunctive relief, even prior to thfe time when the statute becomes effective. Palatka Waterworks v. City of Palatka (C. C.) 127 Fed. 161. And Davenport v. Kleinschmidt, 6 Mont. 502, 13 Pac. 249, seems to be of like character.
However, considering that injunctive relief is appropriate to prevent threatened or impending irreparable injury and damage to one’s property rights, it can hardly be further urged that it is inapplicable here because the suits were prematurely instituted. The present bills of complaint show, not only a threat to enforce the act when it becomes effective, but that complainants are suffering irremediable injury now, which will continue with increasing detriment and damage until their principal occupations are destroyed and they are deprived of their ^property and property rights. We think the suits were not prematurely brought.
In elaboration of the principle, the courts may not, however, because of ythe mere fact that they differ from the Legislature in its views of
There are certain known callings and occupations that the state may, under and in pursuance of its police powers, regulate by reasonable interposition; but it cannot prohibit their exercise, where to do so will infringe the guaranties of the Fourteenth Amendment. Thus employment agencies may be regulated, but not prohibited. Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973. The right of the individual to work and earn a livelihood may not be prohibited, though the workman be an alien. Truax v. Raich, supra.
The right to contract in relation to one’s business is a liberty that may.not be inhibited without entrenchment upon rights guaranteed by the Fourteenth Amendment. Lochner v. New York, suprá; Adkins et al. v. Children’s Hospital, supra. The right to engage in a useful, legitimate business, not harmful or vicious, is protected under the amendment, and cannot be abrogated. Murphy v. California, 225 U. S. 623, 32 Sup. Ct. 697, 56 L. Ed. 1229, 41 L. R. A. (N. S.) 153. And the right to teach German along with the grammar school grades may not be impinged upon under the guise of legislative regulation. Meyer v. Nebraska, supra.
No one questions the proposition that our public schools are subject to a reasonable supervision of the state through its Legislature, in the exercise of its police powers, for safeguarding the health, morals, and general weal of the public. Nor is it disputed that, while parents possess a natural and inherent right to the nurture, control, and tutorship of their offspring, that they may be brought up according to the parents’ conception of what is right and just, decent, and respectable, and manly and noble in life, the state yet stands in the position of parens patriae to, and may exercise its just powers “in preparing the child, in future life, to support itself, to serve the state and in all the relations and duties of adult life to perform well and capably its part.” People v. Ewer, 141 N. Y. 129, 133, 36 N. E. 4, 25 L. R. A. 794, 38 Am. St. Rep. 788; State v. Shorey, 48 Or. 396, 399, 86 Pac. 881, 24 L. R. A. (N. S.) 1121.
The test here is not as to these primordial and long-established principles, and they are referred to only for ¡clarifying the atmosphere, so that we may proceed intelligently to a discussion of the very crux of the cases at bar. The real test is: Has the state, through its legislative functions, the power, under the guise of police regulation, to deprive parochial and private school organizations of the liberty and right to carry on their schools for teaching in the grammar grades?
The act could not be more. effective for utterly destroying the business and occupation of complainants’ schools, except, perhaps, the college and higher preparatory grades, if it had been entitled “An act to prevent parochial and private schools from teaching the grammar grades.” This serves to emphasize the seriousness of the controversy. Indeed, the simile is no stronger than the argument for the adoption
It cannot be successfully combated that parochial and private schools have existed almost from time immemorial — so long, at least, that their privilege and right to teach the grammar grades must be regarded as natural and inherent, as much so as the privilege and right of a tutor to teach the German language with the grammar grades, as was held in Meyer v. Nebraska, supra. The absolute right of these schools to teach in the grammar grades (paraphrasing somewhat the language of the court in the case just cited), and the right of the parents to engage them to instruct them children, we think, is within the liberty of the Fourteenth Amendment.
The right of the state to establish as its school policy compulsory education within its boundaries is conceded. Practically all the states in the Union have adopted such a policy, and no one disputes its utility for reducing illiteracy and raising the standard of citizenship. But no state has ventured so far as to eliminate parochial and private schools from participating in the promotion of the policy.
Compulsory education being the paramount policy of the state, can it be said, with reason and justice, that the right and privilege of parochial and private schools to teach in the common school grades is inimical or detrimental to, or destructive of, that policy ? Such schools and their pations have the same interest in fostering primary education as the state, and appropriate regulation will place them under supervision of school, authorities so they will not escape the duty of proper primary instruction. No one has advanced the argument that teaching by these schools is harmful, or that their existence with the privilege of teaching in the grammar grades is a menace, or of vicious potency, to the state or the community at large, and there appears no plausible or sound reason why they should be eliminated, from taking part in the. primary education of the youth. It would seem that the act in question is neither necessary nor essential for the proper enforcement of the state’s school policy.
The court in the Meyer Case, in stating some things that are without doubt included by the term “liberty” as guaranteed by the Constitution, concludes:
“And generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
And further on the court says (allusion to which has been previously made):
“Plaintiff in error taught this [German] language‘in school as part of his occupation. His right thus to teach, and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment.”
These declarations, although they speak of the individual, are applicable here, notwithstanding complainants are bodies corporate. Their right and privilege to teach the grammar school grades, and the privilege of parents to employ them, are the same as though the individual were
The melting pot idea, applied to the common schools of the state, as am incentive for the adoption of the act, is an extravagance in simile. A careful analysis of the attendance of children of school age, foreign-born and of foreign-born parentage, at private schools, as compared with the whole attendance at schools, public and private, would undoubtedly show that the number is negligible, and the assimilation problem could afford no reasonable basis for the adoption of the measure. But if it be that the incentive is political, and arises out of war exigencies and conditions following thereupon, then the assimilation idea is pointedly answered by the opinion rendered in the Meyer Case:
“The desire of the Legislature to foster a homogeneous people, with American ideals, prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every' character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, .exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error.”
So it is here, in our opinion, the state, acting in its legislative capacity, has, in the means adopted, exceeded the limitations of its power — its purpose being to take utterly away from complainants their constitutional right and privilege to teach in the grammar grades — and has and will deprive them of their property without due process of law.
Other questions have been presented, but, their decision not being necessary to a determination of the controversy involved, they are not considered. '
The motions to dismiss will be denied, and preliminary injunctions will issue, restraining the defendants from threatening or attempting to enforce the act complained against.