GABRIELLI v. KNICKERBOCKER (1937)

In consideration of this cause, the respondent will be referred to as “Petitioner,” and the respondents in the trial court will be referred to as “Appellants.”

The cause is before us upon an appeal from a judgment of the superior court of the state of California, in and for the county of Sacramento, in favor of the petitioner, and against the appellants, awarding the petitioner a writ of mandate, as theretofore prayed for. The facts of the case are substantially as follows:

The petitioner and her father were and are American citizens, resident of the Sacramento City School District. Prior to the action complained of the petitioner was a student at Fremont School in said district. Because of religious objections thereto the petitioner refused to conform to a custom imposed by certain of the appellants on all of the students in said school, requiring the students thereof to salute the flag and to pledge allegiance thereto. By reason of such refusal petitioner was suspended and expelled by the appellants. The salute to the flag and the pledge of allegiance we understand to be in the following language: “I hereby pledge allegiance to the flag of the United States, and to the Republic for which it stands, one Nation, indivisible, with liberty and justice to all.”

After the suspension and expulsion of the petitioner an application was filed in the superior court above named, asking for a writ of mandate ordering the petitioner's readmission to said school. As stated, the writ was granted directing the admission of said petitioner, according to the terms contained in said writ of mandate.

It appears from the record that the petitioner and her father are both members of a certain religious denomination known as and called “Jehovah's Witnessess”; that the tenets and teachings of said denomination forbid the pledging to, or the taking of the oath of allegiance in any form, to any other power or banner than that of God, and cite for our consideration, among other passages of the Bible, the third, fourth, and fifth paragraphs of the twentieth chapter of Exodus, and especially, the third verse thereof, which reads: “Thou shalt have no other gods before me.” Reference is then made to the fifth verse where prescribed penalties are to be inflicted. Our attention is also called to the tenth verse of the sixty–second chapter of Isaiah, enjoining the setting up of the banners of God's salvation.

We need not follow further the allegations of the petition as to the religious convictions of the petitioner, and of the members of the church known as “Jehovah's Witnesses,” further than to state that the conscientious convictions of the petitioner appear to have been upheld by the trial court.

In addition, however, to arguing the correctness of the trial court's conclusion as set forth in the writ of mandate, the petitioner also contends that the action of the appellants was arbitrary, and that no rule or regulation governing the school in question was ever adopted requiring the saluation to the flag and the pledging of allegiance to the republic; that it was only a custom followed in said school, and which custom is not universally followed in the schools of the county of Sacramento.

The contention of the appellants is in substance that the saluation to the flag and the pledge of allegiance to the republic is in no sense a religious rite or ceremony; and cite a number of cases which we will mention hereafter in support of such contention. Section 4, of article 1, Declaration of Rights, relating to religious freedom, reads as follows: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this state; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.”

The stipulation of facts set forth in the transcript show that the petitioner was in all respects an exemplary pupil; that, while the salute was being given to the flag and the pledge of allegiance repeated, she simply stood silently. The only offense attributable to the petitioner, if such it may be called, is and was her failure to join in the salute and the repetition of the pledge of allegiance.

A similar question has been before the courts of Massachusetts, New Jersey, and Georgia. The decisions in the above–named courts were that the salute to the flag is in no sense a religious rite, and expulsion of pupils who are members of the church of Jehovah's Witnesses was upheld. In all of these states, however, there appears to have been legislative acts enjoining the salute of the flag and the pledge of allegiance by pupils of public schools.

The cases relied upon by the appellants are as follows, to wit: Carleton B. Nicholls v. Mayor and School Committee of Lynn (Mass.) 7 N.E.2d 577, 110 A.L.R. 377. This appears to be the leading case on the subject, and the question of the religious or nonreligious character of the salute to the flag and the pledge of allegiance considered very fully, and it is there held that the salute to the flag and the pledge of allegiance is in no sense a religious rite. This case, however, does not reach the crucial point mentioned in section 4 of article 1 of the Declaration of Rights, governing religious matters in the state of California, in that it is not a question whether the salute to the flag and the pledge of allegiance is or is not a religious rite, but whether it constitutes an infringement upon the liberty of conscience of the person affected. This statement is likewise true as shown by a consideration of the case of Hering v. State Board of Education, 117 N.J.L. 455, 189 A. 629, where the Supreme Court of New Jersey likewise held the salute to the flag and the pledge of allegiance not to be a religious rite, but made no mention of whether such a ceremony would infringe the liberty of conscience which is granted by section 4 of article 1 of our State Constitution.

In the case of Leoles v. Landers, 192 S.E. 218, the Supreme Court of Georgia followed the line of reasoning adopted by the Supreme Court of Massachusetts, holding simply that the salute to the flag and the pledge of allegiance was not a religious rite, but went no further and did not consider the question as to whether such a ceremony would or would not constitute an infringement of one's liberty of conscience. Those cases relate practically only to professions and form of worship. The profession of one's religion is, as we understand, to be giving voice to one's beliefs, the form of worship to that which is outlined or specified in the rules or tenets governing the organization to which one belongs. Liberty of conscience goes much further, and under our Constitution, so long as it does not interfere with the morals, peace, and the health of the public, it would appear to be controlling. However, whether the ceremony of saluting the flag and pledging allegiance to the republic for which it stands does tend, or reasonably tend, to infringe upon one's liberty of conscience, is not necessary for us to decide.

Section 1.30 of article 4 of the School Code of California reads as follows: “Boards of school trustees and city boards of education shall have the power, and it shall be their duty to suspend or expel pupils for misconduct when other means of correction have failed to bring about proper conduct.” The record before us fails to show any compliance with the provisions of this section. It does, however, clearly appear that the only action taken by the appellants in this case was that of suspension or expulsion, which clearly indicates that the appellants acted without legal right, and in the suspension or expulsion of the petitioner exceeded their jurisdictional powers.

In Piper v. Big Pine School District, 193 Cal. 664, 226 P. 926, 929, the Supreme Court, in speaking of the right of a pupil to attend a public school of this state as being fundamental, used the following language: “The advantage or benefit thereby vouchsafed to each child, of attending a public school is, therefore, one derived and secured to it under the highest sanction of positive law. It is, therefore, a right––a legal right––as distinctively so as the vested right in property owned is a legal right, and as such it is protected, and entitled to be protected by all the guaranties by which other legal rights are protected and secured to the possessor.” Preceding the above quotation the court had referred to the statutes and Constitution of this state.

It is almost needless to say that, where one has been deprived of a property right, or, as stated in the above quotation, a vested right, it is necessary for the one who makes the deprivation to follow the procedure substantially, and to show that such procedure has been substantially followed.

While the rules and regulations of the district are to be liberally construed, when it comes to the deprivation of a constitutional right it must be shown that the legal procedure in making the deprivation has been substantially followed. In the case at bar there is no showing whatever that the section of the School Code which we have quoted has been either strictly, or even substantially, followed, or that any attempt was, or has been made to substantially follow the same.

That the right to attend a public school is fundamental we may further cite, 23 Cal.Jur. p. 141, § 104, where it is said: “But the right to be admitted to a public school is a valuable right which may be enforced in an appropriate proceeding. It is a privilege granted by the State Constitution, and is a legal right as much as a vested right in property.”

Not having followed the procedure set forth in section 1.30 of article 4 of the School Code, it follows that the suspension and expulsion of the petitioner was arbitrary and unwarranted. While, as we have stated, it is within the province of school trustees to promulgate all reasonable rules and regulations for the government of schools under their charge, those rules, regulations, and acts must be reasonable and not arbitrary.

In 24 Ruling Case Law, page 575, paragraph 24, it is stated that the courts will not interfere with the exercise of discretion by school trustees, and that the presumption is always in favor of the reasonableness and propriety of a rule and regulation duly made. The reasonableness of regulations is a question of law for the courts. This rule is affirmed in 56 C.J. p. 853, § 1091. See, also, the case of C. C. McLeod v. State of Mississippi, etc., 154 Miss. 468, 122 So. 737, 63 A.L.R. 1161. Note to Jones v. Day, 18 A.L.R. 649.

In addition to section 1.30 of article 4 of the School Code we may cite section 1.35, as added by St.1931, p. 2584, which reads: “No pupil shall be suspended from school for more than two consecutive weeks.” There appears to be no limit to the order of suspension or expulsion in the case at bar.

By reason of the mandatory provisions of section 1.30, supra, it is unnecessary for us to review the sections of the School Code relative to the powers of boards of directors in punishing pupils for infractions of the rules adopted, nor is it necessary for us to consider what constitutes compliance with section 5.544 of the same Code relative to instruction being given calculated to inculcate a spirit of loyalty to the government of the United States, and a willingness to uphold all that the Constitution of the United States and the Constitution of the state of California represent.

The record before us presents no question of morality; no question of peace; no question of health; no question of disobedience or improper conduct on the part of the petitioner; just a simple question of standing mute while other pupils saluted the flag and repeated the pledge of allegiance. This obviates any necessity for a further consideration of the questions involved or a reference to the rather exhaustive and learned briefs submitted by counsel.

The judgment of the trial court is affirmed.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.