162 Wis. 482 | Wis. | 1916
It is fortunate that the present hapless controversy is of a genus that seldom makes its appearance in this court. Our population is made up of many people divided into many religious sects, as well as many people who belong to no sect, all of whom contribute to the maintenance of our state school system in proportion to their ability to pay. The number of our people who do not believe in the existence of a Supreme Being and in Life Hereafter is almost negligible. Of the vast majority who do, some think Eternal Bliss can be most safely insured by pursuing one route and others by pursuing other routes, and hence the number of sects into which we are divided.'' There is no subject on which people are more touchy than on that of religion. We may think that there is small reason for such a state of mind, but it is a “condition and not a theory” which confronts us. It may well be said that the grievance here complained of is trifling, but human nature is much the same whether the individual be Catholic or Protestant. Reverse conditions and let a Catholic school board select a church or building devoted to Catholic services in which to hold graduating exercises and engage a Catholic clergyman to deliver a nonsectarian prayer or invocation, and the devout Lutheran, Presbyterian, Methodist, Baptist, or other member of a Protestant communion would be just as likely to take
Turning aside from ethical considerations and taking up the legal questions involved, it is clear that if the plaintiffs have a cause of action they did not pursue the proper remedy. It was here sought to use the writ of mandamus to compel the school board to do away with the practices complained of at the graduation exercises to be held for that year. The writ is not granted to take effect prospectively. 2 Spelling, Injunctions, § 1385; High, Extr. Leg. Rem. (3d ed.) §§ 12, 36; Tapping, Mandamus, 10 (74 Law Lib. 63); Wood, Mandamus (2d ed.) 51. In State ex rel. Board of Ed. v. Hunter, 111 Wis. 582, 588, 87 N. W. 485, this court said:
“The general principle is frequently stated that mandamus will not lie to compel performance of an act by a public officer unless the act be one that is actually due from the officer at the time of the application. Until the time arrives when the duty should be performed, there is no default of duty; and mere threats not to "perform the duty will not take the place of default.”
Oounsel on both sides expressed the desire that the court should take up the case on the merits and dispose of it if possible. The request is a commendable one. If the plaintiffs have a cause of action but have mistaken their remedy, it is a better administration of justice to permit them to amend their pleading than it is to turn them out of court and compel them to begin anew. Ample power has been conferred on the court to pursue such practice by sec. 2836A Stats. 1915 (ch. 219, Laws 1915), if such power did not exist independently of statute.
The plaintiffs’ contentions are twofold: (1) that the acts complained of violate the constitutional rights guaranteed to them by sec. 3 .of art. X of our constitution, and (2) that they violate the rights guaranteed by sec. 18 of art. I of that instrument.
The provision first referred to reads as follows:
“The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein.”
Sec. 18 of art. I provides:
“The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury*490 for the benefit of religions societies, or religions or theological seminaries.”
The two things complained of are the use of a church building in which to hold graduation exercises and the delivery of an invocation or prayer thereat by a denominational clergyman. The holding of graduation exercises in a church is not in itself the giving of sectarian instruction, within the meaning of sec. 3 of art. X above quoted. This is obvious, and presently eliminates from consideration the constitutional provision first quoted. Neither is it shown that the taxpayers were called upon to pay for the use of the churches in which the exercises were held, nor that the clergymen who gave the invocations were paid for doing so. Such being the case, no one has been called upon against his will to erect or support any place of worship or maintain any ministry, nor has any money been -drawn from the treasury for the benefit of a religious society. A man may feel constrained to enter a house of worship belonging to a different sect from the one with which he affiliates, but if no sectarian services are carried on he is not compelled to worship God contrary to the dictates of his conscience and is not obliged to do so at all. The only clauses of sec. 18 of art. I that are at all applicable to the question under discussion are those which provide that no person shall be compelled to attend any place of worship, against his consent and which forbid interference with the rights of conscience. Obviously graduation exercises are a part of the school curriculum and are under the direction and control of school boards. They may be dispensed with, but so long as they are not, school boards cannot escape responsibility for them. Parents and pupils of all denominations have a right to attend such exercises without their legal rights being invaded. It would be far-fetched, however, to say that by so doing they are compelled to attend a place of worship. True, the building is one ordinarily used for conducting religious services. Other buildings that are not churches are often used for like purposes. So are our pub-
The fact that certain persons desire to' attend graduation ■exercises with their children, and that they say that being compelled to enter a church of a different denomination from that to which they belong is violative of their assured rights of conscience, does not make it so. If it is clear that the thing complained of does not violate any right guaranteed by the constitution, then the courts cannot interfere in their behalf, because the final decision on this question must necessarily rest with the courts and not with the individual. The individual must decide for himself whether his conscience tells him that he must not frequent a certain place. If it does, he should punctiliously regard its behests and stay away. But the court cannot turn casuist further than to de
To the lay mind there is very little difference in principle between the case before us and Dorner v. School Dist. 137 Wis. 147, 118 N. W. 353. There a Catholic parochial school was built adjacent to a Catholic church and some of the school rooms were rented and used for the purposes of a public school'. The Catholic school children attended church services before school hours in the morning, and prayers were recited and hymhs were sung during school hours in the portion of the school building used for parochial school purposes and in rooms either adjoining or adjacent to those rented by the public school authorities. The parochial school was taught by Sisters clad in the conventional garb of the order to which they belonged. The lower court found that the public school conducted in the parochial school building had at times been pervaded and characterized by sectarian instruction, and very properly enjoined the continuance of such practices. It held, however, that the school board was acting within its legal rights in renting and using a part of the
A somewhat different question is raised by the complaint about prayers being offered at graduation exercises by denominational clergymen. A prayer may be either sectarian or nonsectarian in character. The sessions of our national Congress, of our state legislature, and of our great party conventions are customarily opened with prayer. These prayers are almost invariably nonsectarian in character, so much so that a person reading them or listening to them would be entirely at a loss to discover to what denomination the clergyman belonged. The enthusiast who places his desire to mate proselytes to the faith he professes above his sense of propriety may occasionally “slop over,” but it is only just to say that our clergy rarely offend in this regard. To be sure, offense may be very adroitly given if the clergyman is so minded, but there is no claim that any such thing has occurred in this case.
“The term ‘sectarian instruction,’ in the constitution, manifestly refers exclusively to instruction in religious doctrines, and the prohibition is only aimed at such instruction as is sectarian; that is to say, instruction in religious doctrines which are believed by some religious sects and rejected by others. Hence, to teach the existence of a Supreme Being, of infinite wisdom, power, and goodness, and that it is the highest duty of all men to adore, obey, and love Him, is not sectarian, because all religious sects so believe and teach. The instruction becomes sectarian when it goes further, and inculcates doctrine or dogma concerning which the religious sects are in conflict. This we understand to be the meaning of the constitutional prohibition.” State ex rel. Weiss v. District Board, 76 Wis. 177, 193, 194, 44 N. W. 967.
In the case before us it appears from the allegations of the petition that both Catholic priests and Protestant ministers had at different times been selected to deliver the invocation at graduation exercises. There is no claim that on any of these occasions any unseemly hint -or suggestion was made by any of the reverend gentlemen who were so honored. In fact the contrary appears by inference at least. So it is clear that no showing was made that sectarian instruction was given as that term is defined in the case last cited. Had it appeared that the invocations given were sectarian in character and that the school board threatened to continue or permit such practices in the future, we do not wish to be understood as intimating that a court of equity would not enjoin the continuance of such practice.
We think it would be difficult to pick out any clause of sec. 18, art. I, of the constitution which by any fair or reasonable construction could be said to be violated by the delivery of a nonsectarian prayer at a graduation exercise. No man is compelled to worship, nor compelled to attend a place of worship, nor does he, as before stated, attend such a place ex
By the Court. — Judgment afi&rmed.