*1 HAMILTON et THE UNIVER- v. REGENTS OF al.
SITY OF CALIFORNIA et al. Argued 55. 17, 18, No. October 1934. Decided December *2 Beardsley
Mr. John appellants. *4 Calkins, Jr., with whom U. Mr. Mr. John Frederic W. brief, appellees. on the Hall was *5 opinion the Court. delivered Butler Mr. Justice (a), Code, under Judicial appeal § This is an (a), judgment highest court C., § 344 a U. S. requires a law that stu- sustaining state California university to a course science military at its take dents tactics, validity appellants which was by and to the Constitution laws challenged repugnant and the United States. are and the appellants the above-named minors, guardian as his ad litem individually. each and
fathers and taxpayers are citizens the United States They regents Appellees are the constituting of California. created the State to administer the uni- corporation provost. its and its president, Appellants applied versity, for supreme court a writ of mandate state com- university to admit the minors into the appellees pelling they So far as are material to the questions as students. allegations of the here, petition are: presented each October, 1933, of these minors registered, In be- the university fully a student conformed came than that requirements other compelling him to all its military science tactics in course Re- take Corps, which Training they Officers assert to an serve military establishment of part integral the United way not connected with the States militia establishment State. The primary object establishing units of. the training of there corps is appointment students qualify Officers Reserve *6 The in are Corps. military pre- courses those by Department. regents require the War scribed male enrollment and of able-bodied stu- participation dents who are citizens of United States. These include instruction in marksmanship, courses rifle scout- patrolling, command, drill and ing musketry, and combat and use of principles, Arms, automatic rifles. equipment and uniforms for use of students in such courses are fur- Department the War nished United States Government. minors are
These members the Methodist Episcopal and the Epworth Church re- League connected ligious societies organizations. For their many years fathers have been ordained ministers of that church. The Southern California Conference at its 1931 session adopted a resolution: “ appreciation With full heroic of all sacrifices those have conscientiously who unselfishly served in country their of war, times but with the that belief the time come has unfolding light day the new for the settlement of human means, conflicts pacific we and because as Christians our owe first supreme allegiance to Jesus Christ. Because Epis- the Methodist Church her copal General Conference 1928 has de- ‘We renounce clared: war as an instrument of national our nation led policy.’ Because the nations of the world Paris Peace signing Pact, and the Constitution of States, Article 6, the United Section 2, provides that: ‘ and the Constitution laws of This the United States be made pursuance shall which thereof and all treaties authority of under made United States shall of the Land.’ Law Supreme Thus making the Pact Paris law of the land supreme which declares: ‘The high agree that contracting parties the settlement of all dis- conflict —shall never be sought putes except by pacific means.’ (cid:127) Conference, California Southern we, the Therefore convenes which General Conference
memorialize States the United 1932; City petition in May, Atlantic service exemption grant Government ,are Methodist Episco- members of the who such citizens conscientiously participation believe Church, as pal to Jesus allegiance supreme denial of their in war ais *7 Christ.” of that Church Conference 1932 the General
And discipline: a of its tenets and adopted part as as having hold our is benefited “We country that of unswervingly follow the dictates those who citizens it to be . . we believe Furthermore, their consciences . to to those duty give support of the churches moral the partic- scruples against who hold individuals conscientious training military military peti- service. We ipation to grant of the United States to government tion the bemay Methodist Church who Episcopal of the members from objectors exemption to war the same conscientious of long granted has been military service as members Society religious of Friends and other similar organiza- the we all Similarly petition educational institutions tions. military training to excuse from train- require such which belonging Episcopal Methodist ing any student against who has conscientious it. We scruples Church of government the United States to earnestly petition financially all military training civil support cease institutions.” educational California Conference at
And the Southern its following: adopted the session Training Officers’ Corps Recalling “Reserve the ac- — asking General Conference for exemption of the tion from those members of our service for military church to whom a for war is violation preparation and of war conscience, of our authorities State request we Universities at and Berkeley, Angeles Tucson, Los exempt Methodist from R. O. T. C. on grounds of students conscien- and we objection, hereby pledge tious and moral of- seeking ficial this backing Conference, such exemption, it provided that be understood that no conscientious ob- jector financial shall participate profits war. is copies Conference asked to send Secretary to the paragraph governing this boards these institutions.” accept as of that
Appellants, members and church, and morally, religiously conscientiously feel themselves expressed bound its tenets and as discipline each a quoted resolutions; conference follower of the accepts of Jesus each teachings Christ; guide His teachings and those the Bible holds as a part and his religious war, training and conscientious belief for war, are immoral, wrong con- His trary spirit teaching to the letter religion. Christian precepts students,
Therefore these at the fall beginning of in 1933, university exemption term petitioned *8 training and in military the participation activities upon ground the their training religious of and con- corps, to objection military to war and training. scientious through Their was denied. petition Thereupon, that in they their fathers bishop California, peti- church’s and regents that be military training optional tioned the made religious objectors in order and to that conscientious war, training might war be training military for and not con- necessity violating foreswearing fronted with the of and being right their denied the of the beliefs education to which are state these minors entitled under university and laws of the State of and the constitution California of the United States. military optional refused to make regents training
The their re- exempt Then, or to these students. because of objections, to they conscientious declined take ligious and course, solely upon the and that the prescribed ground regents suspended formal notification from them the to apply with
university, any but leave readmission at upon ability willingness their and time, conditioned regulations all of applicable university with the comply matriculation and attendance of governing students. university opportunity affords for education as The such at California, not be had other institution may a these greater at cost which minors are except not able at they, appellees And as the time of their pay. sus- knew, willing are to take as a well substitute for pension may such other courses as prescribed be university. allegations petition Other need not be stated they merely go grounds upon show which appel- sought the state practice lants under writ of mandate. grant is a land An university college. act Con- approved July 2, 1862, Act (Morrill 503; Stat. gress 301-308) public donated C., lands to 7 U. S. the several §§ upon in order conditions specified all States from the sale of such lands or derived moneys issued under the act scrip land should be invested sale fund perpetual constitute interest which and inviolably appropriated by each State accept- should the act to the endowment, the benefits support, ing least one college where at the leading maintenance and excluding other be, without shall scientific and object including studies, military tactics, to teach classical learning as are related to agriculture branches such manner such as the arts, legislatures of mechanic respectively prescribe, order may promote States education the industrial practical classes liberal professions in life.” pursuits several *9 1 language, 4, has been twice reenacted. quoted See Act of § The April 13, 1926, Act of 1883, 22 484. 44 3, Stat. Stat. 247. March colleges given been grant have land federal Act aid under Morrill 1887, 2, 440; 24 Stat. following August 30, March 1890, acts: 26 the 63; 16, 1906, 4, 34 1907, 1256, Stat. March 417; 34 Stat. March Stat.
255 1868, legislature of 23, March California passed “ creating university an act in order to devote to of largest purposes education benefaction made ” by State the Morrill Act. Stats. 1867-8, p. 248. This State, of the law called the organic act, provides that “ any California, of of the age years resident of fourteen or of moral upwards, approved character, shall have the right to enter himself in the University as a student at large, receive tuition any branch or of branches at the instruction time given when same are in their course, on such regular as the Regents terms Board 3. It may prescribe.” declared that the college ag- § established, should first 4; riculture be that the college § next of mechanic arts should be established, 5, § requirements fulfill the order to Act said all Congress, able-bodied male students of the University, full or pursuing partial whether courses in any college, at large, as shall receive students instruction and disci- tactics in pline such manner and to such ex- Regents prescribe, tent as the shall requisite arms for shall be furnished which State.” § 6. Article 9,§ state constitution as IX, amended November “The 5, 1918, University declares: of California shall trust, public be constitute administered the exist- ‘ known corporation Regents ing of the Univer- California,’ full with sity powers organization and subject only to such government, legislative control as to insure necessary may compliance with the terms of endowments university of its security . provided, . . that all moneys funds derived from the lands public donated this sale State by act of Con- July 2,1862 (and gress approved the several acts amenda- 1914, 372; May 8, February Stat. 1281; 24,1925,43 970; May Stat. 1928, 45 711. And Stat. see Acts of February 23, 1917, 39 Stat. Stat, 7, 1924, 653; 929; February 9, Stat. June *10 as provided be invested said acts thereof), shall tory moneys shall income said be Congress and the endowment, inviolably support and appropriated college agriculture, of at least one where maintenance (without excluding shall be other sci- objects leading and studies, including military tac- entific and classical learning as are related to such branches tics) to teach arts, in agriculture and mechanic practical scientific and requirements and conditions said with accordance to the September pursuant Congress.” acts of constitution, act and the regents organic of the provisions following order: promulgated University student of the of Cali- Every able-bodied his at matriculation the Uni- the time who, fornia at twenty-four a age years and under versity, is and who has not attained full United States citizen a in the junior University student standing as academic and the course science not completed and has sophomore and students at to freshmen offered tactics required a hereby shall and condi- as University a to enroll in com- as student to his attendance tion than less one and one-half units of of not a course plete military science tactics each semester of instruction he until as shall such time have received attendance his shall of such instruction or have at- of six units a total standing junior as full academic student.” tained appellants assailed the court below In the laws repugnant to specified referred provi- above as order California and political code. constitution, sions challenged validity adequately the state they And regents’ order, act far constitution, organic so require construed to regents these stu- they were course military prescribed science and to take dents Constitution and laws of repugnant tactics, as States. United court,
The state announcing without an denied opinion, *11 petition the for a writ of applied mandate. Appellants for a rehearing. The court, the denying application, handed down an opinion IX, in which it held that Art. 9,§ reposes full regents powers organization of and of government university to subject legislative con- trol respect by § of its endowments and that 6 funds; organic of the act Art. military § and tactics IX, is expressly required to be included among subjects which shall be taught at the and that it is the university duty regents the nature and prescribe extent of the courses to be and to determine given what students them, required pursue suspension shall be that of the students because of their refusal petitioning military in- pursue compulsory courses in volved no violation of their under the rights Constitution United States.
By assignment their appellants upon call this errors, to decide whether the challenged provisions court of the constitution, organic state act and regents’ order, so they impose compulsory military far training, as are re- privileges to the pugnant immunities of the clause Fourteenth the due process clause of Amendment, that treaty or the amendment that generally is called the Briand-Kellogg Peace Pact. 46 Stat. 2343. contend that this Appellees court jurisdiction has no “
because,
they say,
regents’
order is
a
not
statute of
within the
meaning
§
state”
237
Judicial
(a),
But
California constitution
are,
Code.
the regents
not material
exceptions
here,
with
fully empowered
organization
government
respect
of the uni-
as it
which,
has been
is a
versity,
held,
constitutional
function
state
department
government.
v. Wheeler
(1913)
Williams
23 Cal.
App. 619, 623; 138
Wallace v.
Regents
Pac.
(1925)
App.
Cal.
rule
prescribes
assailed order
The
277; to the belonging all students applies conduct violation its it because of And was class. defined these students. suspended by resolution regents ” to acts is limited any state not statute of meaning of every legis act include It legislatures. state used.to no gives sanction, which State character to lative legisla of the state made between acts being distinction law-making power. of the state and other exertions ture Ry. 100. Sultan Augusta, 277 U. S. Co. Co. King Mfg. v. Labor, that the order S. 135. It follows Dept. U. v. is a statute of the compulsory instruction making §of 237 meaning (a). within the *12 State that should dis- appellees appeal And the insist this be a question. of substantial federal want missed sustained; cannot be for we are that contention But every question that appellants that say unable to have is clearly so not here for decision debatable and brought require as lacking in merit dismissal utterly for want substance.2 petition not allegations
The
of the
do
mean
Cali-
that
any part
power
itself
its
fornia has divested
solely
military training
what
shall be
to determine
offered university. While, by
acceptance
at
required
of 1862
the Morrill Act
and the
creation of
benefits
appropriately
comply
order
with
university
the terms
State became bound to
grant,
of the
offer students in
university instruction
military tactics,
that
it remains
by federal enactment
entirely
untrammeled
free
2
Williams,
to determine for itself the branches of military training provided, to be the content of the instruction be given objectives attained. That State —as did each other States the Union —for dis- proper obligations of its charge grant of the made beneficiary in military the course instruction stu- compulsory upon Recently dents. Wisconsin and Minnesota have it made The question elective.3 whether the State has bound require itself to students to take is not here of the order validity challenged involved. The does not depend upon grant. terms the land is not to be petition understood as showing that required by regents’ students order to take the pre- thereby course serve in the or in scribed army any sense of the part military establishment of become the United allegation Nor is the States. courses are pre- by the War Department scribed to be literally. taken We judicial the long-established take notice of co- voluntary between federal and state authorities operation respect given grant instruction the land col- empowered The War has not leges.4 Department been grant college; State has a land Massachusetts has In Each two. Laws, 1923, made the course elective. Wis. 1923 Wisconsin c. 226. argument appellants’ of this case On the counsel stated that Minne *13 recently made the course elective. 126, Preliminary sota has Circular Colleges Universities, Report, 1933, Land-Grant and Department of Interior, Office of Education. 4 of National Defense Act 40-47 3, 1916, June 166, 39 Stat. §§ and 191-2, 4, amended 33 34 of Act of 1920, June 41 §§ Stat. 759, 776, 777, 5, 1920, 41 948, 967, Act of June Stat. May and Act of 1928, G, 12, 45 501. 10 U. Army Regulations Stat. S. 381-390. §§ II, pars. 11. 145-10, No. 10 and § July 28, 1866, 332, 14 336, Cf. Acts of Stat. May and of 4, 1870, 373; 1225, July 16 R. as amended 5,1884, Stat. S. 23 107, 108; § Stat. 26, 491; 1888, January September 25 Stat. 13, 1891, 716; 26 Stat. 7; 1893, 3, February 26, 28 Stat. 1901, November 31 810; April Stat. 225; 1904, 3, 1916, June 21, 33 39 Stat. Stat. 166, 197; 4, June 1920, 759, 41 780. Stat. 260 military prescribe manner to the any inor determine
to
of offi-
furnishing
institutions.
in these
instruction
upon
giving equipment conditioned
the
men and
cers,
of discipline
appro-
deemed
imposing
and
courses
by the
approved
Department
does
recommended
priate,
is not exclu-
training
suggestion that
not
support
given
and
under
authority
of the
sively prescribed
in the safety
The States are interested
of the
State.
States,
strength
military
its
forces and its
United
in war
against
them
every
to defend
readiness
attack
Minnesota,
enemies. Gilbert
v.
261 (1879) Ill. 1 People, 120, 94 129. Kent’s Commentaries Cf. Presser 265, Illinois, 389. v. U. S. 252. The of the Fourteenth clauses Amendment invoked by “ No
appellants declare: State shall make or enforce any abridge law which shall the privileges or immunities of States; the United shall citizens nor any deprive State life, person liberty without property, due proc ess law.” Appellants’ contentions are that the en order prescribing forcement instruction mili tary science and tactics some im abridges privilege or the first munity by covered clause deprives of lib erty safeguarded by the second. The “privileges and ” protected only immunities are that those to citi belong United as distinguished zens States from citizens of the States —those that arise the Constitution and laws the United States as with contrasted those that Slaughter-House Cases, from other spring sources. 72-74, Blacker, 77-80. McPherson v. 36, Wall. 146 U. S. Missouri, 1, 38. Duncan 152 U. 377, v. S. 382. Twining Jersey, 211 97. U. S. Bugbee, New Maxwell v. v. Cheek, 525, 538. Prudential Ins. Co. v.
U. S. 259 U. S. Appellants unquestionably good assert — war, all preparation war, faith —that and the required by university, repugnant are to the tenets their discipline church, their religion and to “ ” The privilege their consciences. of attending the uni versity as a student comes not from federal sources but State. It is given is not within the asserted pro “ ” only immunity tection. claimed by these stu rule, freedom from obligation dents comply with the “ ” prescribing military training. But immunity regarded as not within, cannot be or as distinguishable ” liberty from, of which they claim to have been de enforcement prived of the regents’ order. If the regents’ order is not repugnant due process to.the clause, then does it not violate the privileges and immunities
262 only Therefore we need decide by clause. whether state “ ” liberty infringed. of these has been
action students need be no to enumerate attempt compre There “ ” liberty to is hensively pro define what included process it does Undoubtedly the due clause. by tected beliefs, to entertain the to adhere to right include the and to teach the doctrines on which these stu principles objections the order mili prescribing dents base to their training. Meyer tary Nebraska, 262 390, v. U. S. 399. Sisters, Stromberg Society U. S. 510. v. Pierce v. Minnesota, California, 359, 283 U. S. 368-369. Near v. able they pay 283 U. 707. The fact that are to S. university any but not in other institu way their this significance upon in California without consti tion here involved. California has question tutional or other the university. them to attend not drafted or called the State and at seeking education offered They are be insisting they time excluded from the same religious upon grounds their solely course prescribed war, objections preparation to and conscientious beliefs Taken education. on basis military for war and petition, appellants' in the contentions alleged the facts process an assertion that the due no more than to amount safeguard of Fourteenth Amendment as a clause ” “ right to be students the state confers liberty obligation to take free from university of attendance. the conditions one of light of our decisions that proposition in the Viewed aside as untenable. put at once must state, each its own sphere federal Government, jurisdiction its pre- within people duty to owes strength peace maintain adequate itself serve just enforcement law. assure And order duty, according to reciprocal his owes citizen every government against and defend all support capacity, enemies. Selective Cases, Law supra, p. Draft 378. Minor v. Happersett, Wall.
United States
Schwimmer,
v.
279 U. S. 644, involved a
petition for
naturalization
one opposed to bearing arms
in defense
country.
Holding the applicant not entitled
to citizenship, we said (p. 650):
That
it is the duty of
*16
citizens
force of
to
arms
our government
defend
against all enemies whenever
is
necessity arises
a funda
mental principle of the Constitution.
. . . Whatever
tends to lessen
willingness
of citizens
discharge
to
duty
their
to bear
country’s
arms
defense detracts
strength
from the
and
of
safety
the Government.”-
In United
Macintosh,
States v.
Plainly there under order, requiring able-bodied male students regents’ twenty-four as a age condition of their enrollment prescribed to take instruction science tactics, transgresses any right by constitutional asserted these appellants.
The contention that order is regents’ repugnant Briand-Kellogg requires Peace Pact little considera- In instrument tion. that the United States and other contracting high parties they declare that re- condemn course to war for the solution ‘of international contro- and renounce it versies an as instrument national pol- in their relations icy with one another and that the agree settlement solution of disputes all or conflicts which may among shall arise them never be sought by except means. pacific Clearly there is no conflict between order regents’ provisions of this treaty. Affirmed.
Me. Justice Caedozo. in the I Concurring opinion an wish extra say word. I assume for present purposes liberty that religious protected by the against by First Amendment invasion by' the nation protected Fourteenth Amendment by against invasion the states. I Accepting premise, cannot find the respond- an ordinance by
ents’ obstruction state the free ” religion phrase exercise was understood nation, the founders the generations that have followed. Davis v. 133 U. Beason, S.
There is no occasion at this time mark the limits governmental the exaction power of military service *18 peace.* when the nation is at The petitioners have not to bear arms for required any been hostile offen purpose, or or defensive, either now in the sive future. They have duty * As of the able-bodied to the citizen aid suppressing to in Babington Yellow Taxi crime, Corp., v. 14, see 250 N. 16; Y. the authorities there 726, and assembled. N. E. required any in absolute or peremptory
not even been that will fit them to join in of instruction way courses an institution If to resort to they arms. bear elect then moneys, maintained with the state’s higher education to follow they commanded courses only then are its welfare. by instruction state be vital believed illiberal This as unwise or may by be condemned some conscientious scruples, or unfair there violence to when is More must be shown merely either or ethical. religious In of this naught. to set the ordinance at controversies matters of order do not concern themselves with courts se- or legislative unrelated liberties privileges policy, if Amendment, First it law. The by organic cured makes invalid state law be read into the Fourteenth, or religion prohibiting an establishment respecting military in Instruction science free thereof.” exercise religion. in the a practice instruction tenets is not indirectly government nor establish- directly is Neither upon training. it such religion when insists ing a state unaccompanied here military science, Instruction not an interference military service, any pledge religion exercise of the lib- the free when the state with light are read of a century of the constitution erties history during days peace half and war. meaning striking of those liberties has illustration that enacted in colonial times and were later. statutes in the opinion found collected will be lower They Macintosh, in United F. (2d) States v. court 605, 632, and more fully S. 283 U. briefs of 848; beginnings of our Quakers From the history counsel. objectors have been conscientious exempted other service, but the of grace exemption, an act coupled has been with a condition, least granted, at when they instances, supply the many army with a hire, money necessary to or with one. substitute This
267 1782 Virginia (5 done in 1738 and 11 Hening 16; was id. 8 10 id. id. 18; 242, 261, cf. 243; 262; 334, 335); Massachusetts, (Acts 1758, 159; vol. Resolves, 4, p. 4 id. in North 24 193); Carolina 1759, State Rec- (1781, 156); (Colonial New York 1755, ords Laws, vol. 3, 1068, 1069). A like pp. practice has been continued in many See, the constitutions of of the states. Con- e.'g., Alabama, (F. stitution 1867 1819, 1865, Thorpe, N. Federal and State Constitutions, Colonial Charters and Organic Laws, 1, pp. 105, 119, Other vol. 147); Arkansas, 1868 1, p-. 325); Colorado, vol. 1876 (Thorpe, (Thorpe, Idaho, 2, 1889 1, p. 507); (Thorpe, vol. vol. p. 943); Illi- 1819, (Thorpe, 1870 vol. nois, 2, pp. 980, 1044); Indiana, Iowa, (Thorpe, 2, p. 1067); 1816 vol. 1857 1846, (Thorpe, 1132, 1148); Kansas, 1855, 2, pp. vol. 1859 1857, (Thorpe, 1190, 2, pp. 1214, 1253); Kentucky, vol. 1792, 1799, 1850, 1271, 1283, (Thorpe, 3, pp. 1890 vol. 1307, 1350); Louisi- 3, ana, 1879, (Thorpe, 1898 vol. pp. 1501, Michi- 1587); 1850 vol. gan, (Thorpe, p. 1966); 4, Mississippi, 4, Missouri, vol. (Thorpe, p. 2041); 1820, 1875 (Thorpe, 4, 2164, 2268; vol. New pp. Hampshire, 1794, 1902 4, 2472, vol. (Thorpe, pp. 2495); York, New 1821, 1846 5, pp. vol. 2648, 2671); Pennsylvania, (Thorpe, 1790, (Thorpe, pp. 3099, vol. 3111); Vermont, 1793 For 3763). vol. (Thorpe, p. opposed one force, greater affront conscience must be in furnishing men wage money wherewith pending contest than in military science without studying duty or the pledge our history Never in has the service. notion been ac- believed, even, or it is cepted, advanced, that acts thus related to service indirectly camp field are so practice religion to be exempt, tied in law or morals, regulation by state. On the contrary, willing who were very lawmakers to give release from thought they had no acts were doing warlike any- *20 objector, moral of an claims with thing inconsistent coupling immunities, constitutional still less with his collateral conditions. with these exemption carry different would us Manifestly a doctrine con- yet dreamed of. The have never been lengths that ex- if his liberties were to be thus objector, scientious taxes in furtherance tended, might refuse contribute defense, or in war, whether for attack or for fur- of a end his conscience other condemned therance right private judgment or immoral. The irreligious powers never exalted above and the yet has been so government. One who is compulsion agencies martyr may a turn in the a out end principle —which or an not prove delusion error —does his mar- tyrdom kept that he has within the law.
I am to state that Mr. Justice authorized Brandéis join Justice Stone this opinion. Mr. INDIANA FARMER'S CO. v. GUIDE PUBLISHING
PRAIRIE FARMER PUBLISHING CO. et al. Argued November 1934. Decided December 1934. No.