
    The Board of Education of the City of Cincinnati v. John D. Minor et al.
    1. The constitution of the state does not enjoin or require religious instruction, or the reading of religious books, in the public schools of the state.
    2. The legislature having placed the management of the public schools under the exclusive control of directors, trustees, and boards of education, the- courts have no rightful authority to interfere by directing what instruction shall be given, or what books shall be read therein.
    Error to the Superior Court of Cincinnati.
    The defendants in error are tax-payers of the city of 'Cincinnati, and the city solicitor having refused to institute any proceeding for that purpose, they brought their action in the Superior Court of Cincinnati to enjoin the plaintiffs in error, the board of education and certain of its members and officers, from carrying into effect, or enforcing, two resolutions then lately adopted by the board. These resolutions are as follows:
    “ Resolved, That religious instruction and the reading of religious books, including the Holy Bible, are prohibited in the common schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the common-school fund.
    “ Resoloed, That so much.of the regulations on the course of study and the text-books in the intermediate and district schools (page 213, annual report), as reads as follows, 'The opening exercises in every department shall commence by reading a portion of the Bible by or under the direction of the teacher, and appropriate singing by the pupils,’ be repealed.”
    The entire rule thus quoted from is in the following words : “ The opening exercises in every department shall commence by reading a portion of the Bible by or under the direction of the teacher, and appropriate singing by the pupils. The pupils of the common schools may read such-version of the Sacred Scriptures as their parents or guardians may prefer, provided that such preference of any version, except the one now in use, be communicated by the parents and guardians to the principal teachers, and that no notes or marginal readings be allowed in the schools, or comments made by the teachers on the text of any version that is or may be introduced.”
    The plaintiffs below allege in their petition, that the rule last above quoted was adopted in 1852, and has ever since that time been in full force and effect, as one of the rules for the conduct of the schools of the city, and that the version of the Holy Bible generally used in said schools, and referred to in the rule above quoted as “ the one now in use,” is that published by the “American Bible Society,” and commonly known as King James’ version. They further say, “that the reading of the Holy Bible, without note or comment, has been one of the daily exercises of said schools from the time of their first establishment under the general school laws of Ohio, to wit, from about the year 1829-' till now, and that instruction in the elemental truths and principles of religion has always been given in said schools, but no sectarian teaching, nor any interference with the rights of conscience, has at any time been permitted.”
    They further say, “ that a large number of the textbooks used in said schools contain selections and passages from the Holy Bible, and from other books and writings-which inculcate religious truths; that this is especially true as to the readers in common use in said schools ; . . . . and that the enforcement of the rule proposed by said board of education will exclude from the schools large numbers of valuable text-books, which have been recently purchased by parents or guardians for the use of children attending said schools in compliance with the requirements of said board of education.”
    They further say, “that a large majority of the children in said city who receive any education are educated in said schools, and of said children large numbers receive no religious instruction or knowledge of the Holy Bible, except that communicated as aforesaid in said schools, and that the enforcement of the resolutions first aforesaid will result in leaving such children without any religious instruction whatever. And the plaintiffs allege that such instruction is necessary and indispensable to fit said children to be good citizens of the State of Ohio and of the United States, and is required by the third article of the act passed by the Congress of the United States, July 13, 1787, entitled ‘ an ordinance for the government of the territory of the United States northwest of the river Ohio,’ to be forever encouraged.”
    By their answer the defendants, among other things, say: . . . “ It is true that there are books other than the Bible, now in use in the common schools of Cincinnati, which contain passages and selections from the Bible, and from writings inculcating truths, which, by many persons are designated as religious truths, but that such books are not religious books, and are not used for the purpose of eon-veying religious instruction ; that these defendants believe it to be true that a number of children, who are educated in the common schools, receive no religious instruction or knowledge of the Bible except that communicated in said schools; that while the defendants do not deny that religious instruction is necessary and indispensable to fit said children to be good citizens of the State of Ohio and of the United States, they deny that such instruction can or ought to be imparted in the schools established by the state.”
    And the defendants further say, “that the citizens of Cincinnati, who are taxed for the support of the schools under the management of said board of education, and all of whom are equally entitled to the benefits thereof by having their children instructed therein, are very much divided in opinion and practice upon matters connected with religious belief, worship, and education; that aeonsiderable number thereof are Israelites who reject the Christian religion altogether, and believe only in the inspired truth of what is known as the Old Testament, and this only in the original Hebrew tongue, and such other religious truths and worship as are perpetuated in their body by tradition ; that, also, many of said citizens do not believe the writings embraced in the Bible to be entitled to be considered as containing an authoritative declaration, of religious truth; that a still greater number of said citizens, together with their children, are members of the Roman Catholic Church, and conscientiously believe in its doctrines, faith, and forms of worship, and'that by said church the version of the Scriptures referred to in the petition, is taught and believed to be incorrect as a translation and incomplete ; . . . . and furthermore, inasmuch as said church has divine authority as the only infallible teacher and interpreter of the same, that the reading of the same= without note or comment, and without being properly expounded by the only authorized teachers and interpreters-thereof, is not only not beneficial to the children in said schools, but likely to lead to the adoption of dangerous errors, and that by reason thereof the practice, of reading the King James’ version of the Bible, commonly and only received as inspired and true by the Protestant religious sects, in the presence and hearing of Roman Catholic children, is regarded by the members of the Roman Catholic Church as contrary to their rights of conscience ; . . . that there are other religious sects and denominations and bodies of citizens who either do not regard the Bible as the authoritative source of religious truth, or who regard themselves as possessed of the only true sense thereof; that furthermore, a large number of persons in this community who are ready and qualified to act as teachers in-said public schools, object to the reading of the Bible in the version in use (or, indeed, in any version without note or comment) on conscientious grounds, and are thereby precluded from employment as teachers in said schools; that in consideration of these facts, said board of education has concluded that it was not possible for it to take upon itself any instruction in religion, and that it is neither right nor expedient to continue in use in said public schools the reading of any version of the Bible as a religious exercise, or any other religious exercise whatever, and therefore has passed the resolutions now complained of by the plaintiffs.”
    No reply was filed, and the cause was submitted to the court, substantially, upon the facts thus appearing in the petition and answer. A bill of exceptions setting forth the evidence forms part of the record, but it does not substantially vary the case thus made in the pleadings.
    Upon hearing, the court gave judgment for the plaintiff,, and granted a perpetual injunction against the enforcement of the resolutions in question, or of either of them. And now, to reverse this judgment, the defendants file their petition in error here, assigning for error that the court should have rendered a judgment for them, and not for the plaintiffs below.
    
      J. B. Walker, city solicitor, Stallo & Kittredge, Stanley Matthews, and George Hoadly, for plaintiffs in error:
    I. The board of education acted as a lawful public body in the passage of the said resolutions. Disney’s Laws and Ordinances of Cincinnati, edition of 1866, p. 775; 51 Ohio Local Laws, 508; Disney’s Supplement to do., edition of 1869, p. 163; 65 Ohio Local Laws, 276; 82 Ohio Local Laws, 256; Blanchard v. Bissell, 11 Ohio St. 96; City v. Cincinnati Gas Co., 18 Ib. 262.
    II. The resolutions of the board being an act of legislation, forbidding action of public officers, the remedy by injunction is not proper, unless it can be shown that raaudamus would lie to compel such action. If the reading of the Holy Bible with appropriate singing, at the opening of the schools, and the reading of religious books and religious-instruction, are corporate duties, the performance of which may be enforced by mandamus, the resolution to discontinue-such performance may be enjoined, hot otherwise. Understand us: we do not complain of the plaintiffs’ resort to the remedy of injunctiou; we waive any technical objection; but we assert that before they could properly have obtained this remedy, they should have shown that the action, the cessation and discontinuance of which in the schools they desire to prevent, was required as a public duty by law, so that, had there never before been any religious instruction, or reading of the Bible in the schools, they could have been enforced by mandamus. For in this case, though the plaintiffs’ remedy is in a negative form, its effect is affirmative. It compels the reading of Scripture, and religious instruction, though contrary to the convictions and expressed judgment of the majority of the people of Cincinnati; indeed, although it should be contrary to the wishes of all.
    III. The board had the same authority to repeal the rule adopted in 1852 that their predecessors of that date had'to pass it. Donahue v. Richards, 38 Maine, 401.
    IV. The board have power (Disney, ed. of 1866, p. 775, 51 Ohio Laws, 503), “ to make such regulations for the govern raent and instruction of the children therein, as to them shall appear proper and expedient.” If we assume that the first resolution was unwarranted, and that religious instruction and the reading of selections from the Bible and other books of religion from MeGuffey’s readers and others,ought to continue, it by no means follows that the constitution and laws impose upon the schools the necessity of daily religious services at the opening hour. The case is in this singular position : the real grmamen of the plaintiffs’ complaint is the discontinuance of this openiug exercise, consisting of Bible reading and psalm singing, and yet the argument is all directed to the other resolution. Had not the first resolution passed, the plaintiff's would have wanted even a plausible excuse for their petition. For what could be more clearly within the powers conferred by law upon the board, than to fix the time, place, and circumstance of such religious instruction ? Why might not the board rightfully determine that such instruction is sufficiently imparted by the use of the readers, aud other means of culture employed in the hours after the schools are opened ? Even if the plaintiffs were right in their premises, the injunction restraining the second resolution, therefore, unwarrantably interferes with the discretion confided by law to the board, and for this reason the judgment of the Superior Court should be modified, so as to except this resolution.
    V. The opening exercise of Bible reading and singing is a “form of worship,” “maintained against the consent” of large numbers of the people, by the compulsion of public authority. It is, therefore,' within the inhibition of article 1, section 7, of the constitution.
    VI. The first resolution was also within the authority of the board for the following reasons:
    “ The state is, in Ohio, forbidden to interfere with, or exorcise the office of the church. ‘Religious instruction and the reading of religious books, including the Holy Bible,’ nan not be prosecuted in schools supported by’ the taxation of men of all religious opinions, without the violation of section 7, article 1, and section 2, article 6, of the constitution.
    “Neither Christianity nor any other system of religion is a part of the law of this state. Bloom v. Richards, 2 Ohio St. 387; Thurman, J., in McGatrick v. Wason, 4 Ohio St. 571; article 11 of the treaty with Tripoli, concluded by the administration of George Washington, November 4, 1796, 8 U. S. Stat. at Large, 155.”
    VII. The argument of the plaintiffs, founded on the following passage in section 7, article 1, of the constitution, -“Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction,” fails, because, first, the provision is directory to the general assembly, who have invested the board with unqualified discretion to make “ such regulations for the government and instruction of the children therein, as to them shall seem proper and expedient.” Miller and Gib
      son v. The State, 3 Ohio St. 475; Hill v. Higdon, 5 Ohio St. 245, 248; Pim. v. Nicholson, 6 Ohio St. 176; Maloy v. Marietta, 11 Ohio St. 636; Lehman v. McBride, 15 Ohio St. 573; Gillenwater v. Railroad Co., 13 Ill. 1; Groces v. Slaughter, 15 Pet. 449.
    
      Secondly. It is to be read distributively, the projection-of religions denominations being the appropriate method of securing religious and moral progress, and the function of schools, that of imparting “knowledge;” and thirdly, the clause can not be read so as to require religion to be taught in the schools, but is a direction to the legislature to encourage schools and the means of instruction, because-of the effect culture has in promoting religion, not religion in advancing culture. It is a pure non-sequitur to deduce from these words an injunction to teach religion in the schools.
    VIII. Otherwise, and if religion is to be taught in the public schools, it should be correctly and exhaustively taught. In such case, the state can not be said to perform its whole duty by an opening exercise of Bible reading with a few minutes’ singing, and the reading of passages from McGuffey’s readers. At least as much time should be given to it, and as much pains taken to secure the full and thorough comprehension of its vital truths by the scholars, as is bestowed in the study of arithmetic, geography, grammar, or history. "We ask your honors whether, if the state must teach religion in the schools, it can be excused if it do not inculcate it with saving effect?
    Superficial teaching should, be shunned most of all in this department, for this concerns, not the poor and temporary affairs of the body, but the etermal welfare of the soul; and especially so, because, as the petition shows, and the answer admits,'there are children who will receive no religious culture, unless in the public schools. If the constitution requires religious instruction, this must be full and true. But full and true religious instruction, to a Catholic, is the teaching of Catholicism; to a Methodist, of Methodism; to a Presbyterian, of Presbyterianism; in the sense of Spinoza, of Pantheiam ; and that of Hume, of Deism; to the Baptist mind, it involves immersion, etc. Religious men differ at all points, except, perhaps, as to the being of God. Honest differences prevail even as to what books should be included within the meaning of the words “Holy Bible.” Witness the Jew, who regards the Old Testament as alone inspired; the Catholic, who adds the Apocrypha and New Testament; and the Protestant, who repudiates the Apocrypha. And the shades of difference as to the true sense and correct meaning of the Bible are-endless. Now, we ask your honors, whether, if any one of you should undertake to teach your own children religion,, as, it is said, the state must teach all the children of Ohio, you would not be as thorough as if you were teaching Latin or philosophy ? And if so, could you be otherwise than sectarian in your instruction ? Would you not do what, by article 6., section 2, the state is not allowed to do, viz: manage your school in the interests of a sect ? With what propriety, if the state is to teach religion, are the teachers forbidden to comment on the “ text of any version that is or may be introduced?” And even if the state is allowed to teach religion, the plaintiffs must fail, for their injunction can only be sustained by showing that the state .is required to teach religion.
    IX. The construction of the first resolution, giving it the force of a requisition that the passages quoted in the record from MeGuffey’s readers be expunged, etc., is a misconstruction or perversion.
    X. If the teaching of religion is required by the constitution, at what age shall the instruction cease, on what days shall it be practiced, and how may parents and children be prevented from evading the duty of receiving it? The same argument that justifies its introduction into the common school would sustain a system of Suud ry-schools supported by the state, and- the compulsory attendance of all children, irrespective of conscientious scruples of them or their parents. It would also sustain the religions education of adults by the compulsion of the state. The constitution does not limit the school age. If, because religion is essential to good government, religion must be taught in the schools, the older the pupil the more important this branch of instruction, for the’closer is his connection with, and the greater his influence upon, the government. Most important of all is it after he becomes a voter and shares directly in the functions of government. And if it be conceded that the state may teach the theory of religion, how can her right to enforce its precepts, according to her understanding of them (that is, the understanding of the majority), be denied? The theory which commits to the state any office in the religious instruciion of the citizen, juvenile or adult, logically results in the close alliance of church and state.
    It is a principle of Catholicism that religion should not be taught by the state, but by the church only; and so far as in Catholic countries,-by concordat and otherwise, the state has been allowed to interfere with religious instruction, it is in strict subordination to the church.
    The plaintiffs thus seek to maintain sectarianism, though it is the sectarianism of more than one sect, and is just as much within the prohibition of the constitution, as, if the Catholics should obtain power; they should open the schools with passages from the Vulgate, read by an ordained priest, and the singing of Stabat Mater, and should teach therein papal infallibility. The decision of the Superior Court, if sustained here, should the Catholics ever secure the numerical majority, will be a precedent for the use of the Catholic catechism as a book of instruction in the common schools. If, because religion is essential to good government, it should be taught in the schools, what is to prevent a Catholic legislature, the members of'which are sincerely convinced that Catholicism and nothing else is religion, from requiring instruction in Catholicism in the schools of the state?
    XII. If it be said that the religion spoken of in the constituiion means that which is common to all religious persons — Catholic, Protestant, and Jew — then we say that even upon the supposition that this, but no more, must be taught#in the schools, the Superior Court erred: first, in enjoining the enforcement of the second resolution ; secondly, in not qualifying its injunction of the first resolution, so as to leave that resolution in force as to all other than this general religious teaching. The school board had a right, upon this theory, to forbid the teaching of any special religious views, and the continuance of particular religious practices other than those which the universal religious mind approves. The injunction should have-merely forbidden the board to do away with the teaching of religion in this general sense, leaving the resolution in full force for its beneficent purpose of preventing the use of the schools as means of teaching, under the sacred name of religion, at the expense of the tax-payers, that which many religious men, devoted priests, learned rabbis, servants of God of as pure and self-sacrificing religious-lives as any of their fellow-men, condemn and religiously abhor.
    XIII. Finally, as the very best method of advancing the cause of religion, of that religion which is essential to good government, we ask the court to refuse its aid to this attempt to make it the creature of the state. The Superior Court has imposed upon an unwilling people the duty of supporting religion out of the public treasury. In the-contest, whoever gains, religion loses. The principle of the-severance of church and state, in the interest of both, which has been everywhere advancing for centuries, and was supposed to be protected and fully secured by the constitution, is now committed to your honors’ charge, in whose-hands we hope it will receive no detriment.
    
      Sage & Hinkle, Wm. M. Ramsey, and King & Thompson, for defendants in error:
    The board of education is not an independent body; it is a branch of the municipality. 51 Ohio L. 503, sec. 1. Erom its first establishment, in 1829, it has been a part of' the corporation; quite subordinate, at first, to the city council, and still, in some of its functions, subject to the control of that body — secs. 4, 6, 8, and 15. It possesses no rights or immunities higher than the other branches of the city government. It has power to regulate the government and instruction of the children, but it is subject to law.
    The jurisdiction of the court over the exercise of its powers is full and complete.
    The resolutions adopted by the board of education are an abuse of its powers, because they were passed without warrant or authority in law, and in violation of article 1, section 7, of the constitution of Ohio.
    These resolutions, expelling all religious instruction from the schools of Cincinnati, are equally subversive of article 6, section 2, of the constitution.
    “ Sec. 2. . . No religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.”
    This section was first introduced in the constitution of 1851; the other (article 1, section 7) was taken from the •constitution of 1802, where it will be found in article 8, section 3, in these words:
    “ Sec. 3. -That all men have a natural and indefeasible right to worship Almighty God according to the dictates of conscience; that no human authority can, in any case whatever, control or inter/ere with the rights of conscience; that no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; and that no preference shall ever be given by law to any religious society or mode of worship, and no religious test shall be required as a qualification to any office of trust or profit. But religion, morality, and knowledge, being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall be forever encouraged by legislative provision, not inconsistent with the rights of conscience.”
    The latter clause was adopted from the ordinance of 1787, where it is declared to be one of “the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected. And a,s testimony to the soundness of this foundation, we quote from Emilio Castelar, in the constitutional assembly of Spain, March 12, 1870, Harper’s Monthly, July, 1872, p. 220 :
    “ The French democracy has a glorious lineage of ideas —the science of Descartes, the criticism of Yoltaire, the pen of Rousseau, the monumental encyclopedia; and the Anglo-Saxon democracy has for its only lineage a book of a primitive society — the Bible. The French democracy is the product of all modern philosophy, is the brilliant crystal condensed in the alembic of science; and the Anglo-Saxon democracy is the product of a severe theology learned by the few Christian fugitives in the gloomy cities of Holland and of Switzerland, where the morose shade of Calvin still wanders....... Nevertheless, the French democracy, that legion of immortals, has passed like an orgie of the human spirit drunken with-ideas — like a Homeric battle, where all the combatants, crowned with laurels, have died on their chiseled shields; while the Anglo-Saxon democracy, that .legion of workers, remains serenely in its grandeur, forming the most dignified, most moral, most enlightened and richest portion of the human race.”
    The following is one of the articles which is declared to be a “ compact, and forever unalterable, unless by common consent:”
    “Art. 3. Religion, morality, and knowdedge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
    The ordinance of 1787 was re-adopted by Congress, August 7, 1789. 1 U. S. Stat. at Large, 50. The act of Congress, April 30, 1802, for the admission of Ohio into the Onion, sets forth, as a proviso to section 5, that the constitution and the state government shall not be repugnant to the ordinance. Decisions concerning its provisions will be-found in 5 Ohio, 410; 9 Ohio, 52; 17 Ohio, 409, 425.
    The common schools of Ohio are derived, therefore, from the ordinance of 1787, as perpetuated in the constitution of 3802. The first laws establishing a general system were the act, of February 5, 1825 (2 Chase’s Stat. 1466), and the act, of February 10, 1829 (3 Chase’s Stat. 1632). In the preamble of both, the general assembly declared, as their intent and motive in enacting them, that “ it is provided by the constitution of Ohio that schools and the means of instruction shall forever be encouraged by the legislature.” A still clearer insight of the motive actuating them is given by the published report of the committee who drafted the act of 1825, from which we take these brief extracts:
    “A wise legislature will endeavor to prevent the commission of crimes, not by the number and rigor of its penal statutes, but by affording the whole rising generation the moans of a moral and virtuous education, by extending-its benign influence to all the paths of private life and social intercourse, and by strengthening the ties of moral duty.....
    “Accordingly, we find it provided in most or all of the constitutions of the several states, that schools shall be established at the public expense. The constitution of our own state, in particular, declares that ‘ virtue, religion, morality, and knowledge, being essentially necessary to good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision.’ ”
    The clause quoted from article 8, section 3, was the only authority, under the constitution of 1802, for establishing common schools. Under this they arose.
    Besides 'the legislative construction thus given, as to the purpose of the common schools, the petition in this case shows that from the first establishment of such schools in Cincinnati, which was by the city charter, enacted February 12, 1829 (27 Ohio L. 33), “instruction in the elemental truths and principles of religion has always been given in said schools, but no sectarian teaching, nor any interference with the rights of conscience has, at any time, been permitted.” Such contemporary exposition, even of the constitution, practiced and acquiesced in for a period of years,, it has been held, fixes the construction, and the court will not shake or control it. Stuart v. Laird, 1 Cranch, 299. Exposito contemporanea fortissima in lege. 1 Kent’s Com. 464.
    II. It is attempted, in various ways, to avoid the application of section 7 of article 1.
    The .distributive argument, by which the protection of religious denominations in their worship, is set off against “ religion,” and “ knowledge ” is allotted as the province-of the schools, is unfortunate. It not only fails as to-“morality,” but is defeated by the clear terms of the ordinance and the constitution of 1802, which was not intended to be altered or qualified by the present constitution, the original text not being affected by the new matter inserted.
    It is also contended throughout the argument for plaintiffs, that religion and religious instruction mean nothing-but sectarianism and the charge of souls, and that, this-clause of section 7 is therefore impracticable. This is not true to the obvious meaning and object of the precept of the constitution, and belittles the men who founded our-government. It undertakes to substitute strange doctrines, alien to the soil and institutions of this country, in place of old and fundamental principles. It stultifies the entire-section. Who, that reads it, can suppose that “ religion,” as there expressed, was intended to bear a signification necessarily impluging upon all _the rights and immunities, secured to the citizen by the same section ?
    There is a religion and morality, and no doubt it was-intended by the framers of this law, which is easily defined, and which, for forty years, neither the people, nor school board, nor courts of Cincinnati, had any difficulty in understanding. Dr. Johnson defines it to be “ virtue,, as founded upon reverence of God, and expectation of future reward and punishment.” Dr. Webster explains it, distinct from theology, as being “ godliness or real piety in practice, consisting in the performance of the duties we owe to God, from a principle of obedience to his will.” And he quotes from George Washington these words. “ Let us with caution indulge the supposition that morality can be maintained without religion.”
    We quote the continuation of this passage, as found in Washington’s Farewell Address : “ Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religions principles.”
    This forced construction, by which it is sought to nullify the clause in question, can not be sustained. The terms used, and the object declared, as well as the other provisions with which it is associated, and the well-known sentiments of the patriots and statesmen from whom it originated, all prove that instruction in religion and morality, as enjoined in the constitution, has no reference to theology or spirituals. What it seeks by its system of public education is, to teach the duty of man in this life.
    Nor does it give any warrant for interpreting it as meaning, not religion, but culture. It uses plain and solid words, denoting that it is not that sort of invertebrate morality, which dresses itself in Protean names, and changes, at will, with fashion or opinion, but the robust and practical morality which grows from religion. The only code of morals which has ever made a mark upon the world is that which placed God at the head of all moral and social order. Centuries before Plato or Cicero, this morality founded a .system, by its ten commandments, in which conscience and duty were made supreme by the hope of immortality. The grand philosophy and sentiments of those gifted men, their beautiful pictures of virtue, fell like seed upon the desert and perished, because they had neither root, nor strength, nor trust. It was virtue without obligation.
    That the founders of our government intended the intermingling of a religious morality with the intellectual education of the young is incontrovertible, not only from the language of the law they handed down to us, and the sense put upon it by the legislature, but from the history of the country. The energy and permanence of principles and habits thus acquired, are so powerful in directing human conduct and public opinion, that all states, whose policy is to seek enduring order and security, have embraced the means afforded by public schools. Thus the constitution seeks to attain the highest condition of society. A people of high intelligence and no principle is not its design.
    One of the relations of education to the state is strikingly depicted in the report of the United States Commissioner of Education for the year 1871, p. 548. It is shown that it is in the very quarters where neither the help of the. .church nor the family can avail, that vice and immorality and ignorance are most successfully reached and combated by the public school. It is vain, therefore, to refer the state to the family for its renovation.
    Concerning these, it is admitted in the answer, “to be true that a number of children who are educated in the common schools, receive no religious instruction or knowledge of the Bible, except that which is communicated in said schoolsand while it also admits “that religious instruction is necessary and indispensable to fit said children to be good citizens of the S'-ate of Ohio and of the United States,” yet deuies that “such instruction can or ought to be imparted in the schools established by the state.” This, we say, is answered by the constitution.
    By the same construction, it is argued that if religion be taught, then it must be thorough and with saving effect. But this, as already shown, mistakes the sense and object of the law. The schools are not established for the charge of souls, nor yet for the private benefit and purposes of the citizen. They are for the good of the state and the furtherance of order.
    III. The plea of conscience is met by the same answer. If state necessity demands that the religious and moral sense of the people be .educated, there can be no right of conscience superior to this prerogative, if not abused. It could as well be insisted that capital punishment, or the-appropriation of private property to public uses, are unlawful. Conscientious and excellent men are aggrieved by both. The fundamental error of the whole argument against religious instruction, is in assuming that it is for the benefit of sectarianism, and that any citizen has rights-higher than the state.
    No preference of any sect, or violation of any right, can result from the religious and moral teaching which the-constitution requires.
    In this controversy we are not to shut our eyes to the fact, that the rights of conscience, the severance of church and state, the prohibition of religious tests, and the immunity of the citizen from attending or supporting any place or form of worship, all depend upon the same section of the constitution, which requires religion, and morality, and knowledge, to be encouraged as essential to government; and that, upon a fair reading and balancing of the different provisions of that section, it is undeniable that if any conflict or inequality is created by the terms — if any one,, more than others, is made paramount, it is the concluding clause, where the rights given to the citizen are made subject to the greater right of the state.
    But if conscience and equality are to be considered, what defense can be made of these resolutions, which profess, on their face, to be intended “ to allow the children of parents of all sects and opinious, in matters of faith and worship, to enjoy alike the benefit of the common-school fund,” when, in fact, they ostracize all who, in conscience, with the constitution supporting them, believe that religion and morality are essential in educating the young ? How are these uncompromising, anti-religion resolutions to be reconciled with that injunction of the constitution, article 6, section 2, that “no religious or other sect shall ever have any exclusive right or control of any part of the school fund of the state ?”
    It is obvious that this is not “ neutrality.” It is invidious and oppressive, because it destroys the fair and unexceptionable compromise which had lasted without complaint through a long period of years, and because it gives no quarter to the excluded. Atheism and infidelity could seek no better hold than the total banishment of religion, which these resolutions order and compel the teachers of the schools of Cincinnati, at their peril, to enforce. Exclusion of all religious instruction or reading is the propagation of irreligión, as certainly'as darkness reigns where the sun never shines. Thus, conscience and equality, we are to understand, are the right of those only who oppose religious instruction in schools. The religious can not, but “ other sects,” at their pleasure, may convert the school fund wholly to their own views, irrespective of the prophetic provision made in article 6, section 2. And the climax so clearly put upon the last clause in article 1, section-7, by the word “however,” and the word “but” in the constitution of 1802, is not only reversed, but the -clause itself read out of the instrument.
    If religious instruction was not intended by the first article of the constitution to be impressed upon the common schools, what need was there for providing in the sixth article that no religious sect should have “ exclusive ” control ?
    In this connection it is important to note that the convention which framed the constitution refused to add to section 2 of article 6 the words, “ Nor shall the rights of conscience be in any case interfered with.” 2 Debates Ohio Convention, 710, 711, 821, 843. That the construction we .claim for section 7 of article 1 was their construction; and, 2. That in framing the sixth article they contemplated religious and moral instruction. Hence having had the subject three times under consideration, they rejected the words above quoted, refusing to clog the article with a provision which might be used to lefcat theif intention.
    IV. But supposing the constitution does intend that religious instruction is necessary, as the answer admits, “to-fit children to be good citizens,” it is contended that the clause in question does not execute itself, but leaves all to legislation ; and thus the general assembly having delegated the entire regulation of the schools to the board of education, without requiring such instruction to be given, the’ board has discretion, therefore, not only not to require it, but to absolutely forbid the teachers to communicate such instruction.
    We admit the mandate in article 1, section 7, of the-constitution, does not execute itself, that is to say, it does’ not of itself establish schools. But the general assembly, in direct obedience to the mandate, as they declared, did, by suitable laws, establish schools. That is all that was delegated. Being thus established, the argument is that because they have not in the act establishing the schools of Cincinnati, or in any other acts on that subject, required the board of education to give the instruction for which the constitution creates them, this is to be taken as an-authentic and binding construction,’ leaving no room for’ argument that the board has this full power and discretion, not only not to give such instruction, but to forbid it altogether.
    If this is good construction, it is needless to say that it renders all the mandatory or declaratory parts of the constitution very precarious. Why should the school laws require the boards of education to conduct their schools for the dissemination of religion and morality, as well as secular instruction, when the constitution so clearly marks out their work? Trustees and teachers are supposed to know the essential purposes for which the schools are established-The legislature has always so understood it, and in none of the school laws have made any specific requirements as to the studies to be pursued. See Zanesville v. Richards, 5 Ohio St. 589.
    
      The declaration of the constitution is, that religion, morality, and knowledge are essential to the government, and that the general assembly “shall pass suitable laws” to-encourage the schools and the means of instruction. Suitable for what? Manifestly for the ends and purposes pro-pm-ed : to supply the public need declared, the instruction so essential to the state.
    Another governing principle, equally applicable, has-been declared, with regard to the use of public and municipal powers, in the case of The State v. Cincinnati Gas Co., 18 Ohio St. 262, namely, that the broad control and power which the laws give to the city council over the streets, is nevertheless to be taken with the implied qualification, always, that the council can not change the character of the public right and use for which they were dedicated.
    None of the cases cited by council for plaintiffs conflict or differ from these decisions, as to the proper construction and effect of legislation, in pursuance or furtherance of constitutional principles.
    Admitting that the legislature had power to determine the mode and measure of the religious and moral instruction to be given in the common schools, it is still obligatory upon them, if they exercised that power, to provide for it in some schools, and more especially in the schools for the whole people. But here it is claimed that the board of education has a power, which the legislature itself does not possess, of excluding it absolutely from all. Not a school in Cincinnati can respond to the governing principle of the constitution under these resolutions.
    "We deny, in toto, the conclusion that the silence of the legislature is to be construed as a license to the board of education to pervert the schools of Cincinnati away from their legitimate ends. The all-compelling dictate of the-constitution is not to be so avoided or defeated.
    V. It can not be necessary to argue the point, that the judgment in the Superior Court is an injunction to teach religion ; that it removes from the board of education the-power of regulating the books and studies, and compela them to convert the schools into propaganda of sectarianism. The judgment and record do not justify these exaggerated conclusions.
    It is assumed, also, that the action of public functionaries can not be enjoined, except in cases where mandamus will lie to compel it. No authority is adduced, and the proposition is in conflict with the unquestionable power now given by the municipal code, even if it were doubtful before, to interfere, if the board is departing from the power vested in them, or assuming to themselves authority which the law does not give, and a fortiori, if violating the purposes for which they were established.
    But this provision of-the municipal code, which is a reenactment of the former law (1 S. & C. 1559), is but the same broad restraining power which the courts of chancery always possessed. Scofield v. Eighth District, 27 Conn. 499; Freeman v. School Directors, 37 Penn. St. 385; Attorney-General v. Corporation of Poole, 4 Mylne & C. 17; Frewin v. Lewis, Ib. 249; 2 Humph. (Tenn.) 428; 24 Iowa, 266; 1 Duer, 451; 5 Seld. 263; 14 Ves. 245.
    The proceeding is not in the. nature of a mandamus, nor to compel performance of any act. It is wholly preventive and negative, as in Lumley v. Wagner, 1 De Gex, M. & G. 604, where the distinction between an interference to compel or command what the defendant shall do, and to say what he shall not do, is well illustrated. The board is simply commanded to abstain from enforcing or acting upon the resolutions, which were declared to be an abuse of its powers, and therefore void. By color of their oflice, the plaintiffs in error were exercising their power and control over the teachers of the schools in a matter not within the sphere of their discretion and authority, and distinctly in violation of the constitution. If wo admit that they can not be specifically compelled to teach religion and morality, their discretion goes no further. If they will not exercise the power which the constitution clearly gives, they must at least be passive or neutral. They must not become aggressive, and set it at defiance. The law under which they rvere acting, clothed them with no such discretion. Their action was void ; “ as clearly void,” as said in 1 Ohio St. 77, “ as though expressly forbidden, because it was not fairly within the scope of their legislative authority.”
    The practical difference between compelling them to teach religion, and restraining them from suppressing it, by. an unlawful stretch'of their office, is immense. The principal factor in education, after all, is the teacher, and -he maybe faithful to his trust, even if his superiors in office are derelict.. His is the silent agency which molds and works out the results.
    The gravamen of these resolutions, and main cause of the action, is the total banishment of religious instruction .and books from the public schools. It is alleged, however, that even if this were illegal; still the Superior Court erred in not discriminating between the two resolutions; and a modification of the judgment, in this respect, is asked. But they can not be separated.
    The second resolution, which rescinds the rule that the Bible shall be-read daily, as an opening exercise, is only a repetition of the prohibition in the first, by which all religious books, “including the Bible,” are put out of the schools. If the first resolution was illegal, in attempting a total proscription of religious instruction and books, the court was not only justified, but bound to annul and enjoin both the resolutions. They were really but one act; and if there was illegality and abuse in the main object, that part which might, under other circumstances, have been -claimed to be right and proper, is made equally void w.ith the rest. The illegality vitiated the whole proceeding. Widoe v. Webb, 20 Ohio St. 431.
    VI. The phantoms of church and state, and of a religious establishment, are also evoked against the judgment of the court. A treaty with “Tripoli,” and certain -observations by Judge Thurman, in the case of Bloom v. Richards, 2 Ohio St. 387, and McGatrick v. Wason, 4 Ohio St. 571, are cited to show that Christianity is not law in Ohio, and that the state is forbidden to exercise the offices', of the church; in which we concur, not. admitting the authority, either of the dictum in the treaty, or of the extrajudicial remarks quoted of Judge Thurman :
    “ Counsel for plaintiffs in error quote from article 11 of the treaty with Tripoli, concluded November 4, 1796. (8 U. S. Stat. at Large, 155.) ‘As the government of the United States is not in any sense founded on the Christian religion,’ etc. If they will turn over the leaf to the next, treaty, with Tunis (8 U. S. Stat. at Large, 157), they will find the opening sentence, ‘God is infinite;’ and in the' third paragraph, that the treaty was made with ‘ the most distinguished and honored President of the Congress of the United States of America, the most distinguished among those who profess the religion of the Messiah, of whom may the end be happy.’ And see treaties passim, 8 U. S. Stat. at Large.”
    
      ~We respectfully submit that Judge Thurman’s remarks' were wholly extraneous. The decision in both cases turned’ upon the construction of the act which forbids “common labor” on Sunday, except works of charity and necessity. The court decided in the first case, that a contract, made on Sunday, to sell land, is not “ common labor;” and in the other, that loading a'vessel on Sunday, navigation being on the verge of closing, is a “work of necessity.” Nothing more was to be decided. The only point in either case was, whether the statute applied upon the facts. No question was made as to Christianity or religion; no doubt was raised either as to the constitutionality, the motive,.or the policy of the statute. Indeed, it would not be difficult to show that the denial that the act has any religious mo-rive, is at variance, not only with its previsions, but with its-title. The exemption from the observance of Sunday, which is extended to those “who do conscientiously observe the seventh day of the week as the Sabbath,” is too-significant to be overlooked — saying nothing of the remarkable recognition contained in the fourth section.
    But for the exposition of the true relations between religion and the state, in all aspects, and in cases where exposition was really called out by the exigency, we refer to-the decisions by Chief Justice Parsons, in Barnes v. First Parish, 6 Mass. 401; Chancellor Kent, then chief justice, in The People v. Ruggles, 8 Johns. 201; Chief Justices Tilghman and Gibson, with Duncan, J., in Updegraff v. Commonwealth, 11 S. & R. 394; Chief Justice Shaw, in Commonwealth v. Kneeland, 20 Pick 206; Judge Story, in Vida v. Girard’s Ex’rs, 2 How. 127; and — by no means uneqna. to these great authorities — Chief Justice Clayton’s masterly-review of the whole matter, in The State v. Chandler, 2 Harrington, 553. See also Story on the Constitution Abr. sec. 986, original sec. 1865, aud Lindenmuller v. The People, 33 Barb. 548.
    The conclusion of Judge Cooley, in his work on Constitutional Limitations, that the support of religious instruction by taxation, or otherwise, is not lawful under any of the American constitutions, is too broad. It is sufficient to say that he can not have examined the constitution of Ohio. The decisions in Donahoe v. Richards, 38 Maine, 401, and Barnes v. First Parish, 6 Mass. 401, are directly against him.
    VII. The modified sense in which the court is now urged to accept these resolutions, is not their real meaning. They were not aimed at “.special teaching,” or “formal books” of religion, because no such expressions were used, and because there had been no such teaching, or books, in the schools. They'- have a wide meaning, and its extent must be judged from the force which they can have in the hand of the “ other sects,” mentioned in article 6, section 2, of the constitution.
    They are simply revolutionary. Upon no complaint, without occasion, they cast aside the policy, to which the board had steadily adhered, from 1829 until then, of combining religion and moral instruction, with perfect toleration, and without sectarianism. Notwithstanding the protestations by which it is sought, in argument, to identify the Catholics and Israelites as among the beneficiaries of these resolutions, the truth is, that a leading Israelite (Mr. Mack) voted against them. And the Catholics, who had rejected all overtures, and denounced the common schools as “godless,” before this exclusion of religious instruction and books, will accept no such invitation now.
    "We refer to the pleadings and exhibits for the history .and outline of the system pursued by this board, so successfully, down to the year 1869. About the year 1856, the Israelites of Cincinnati having carefully investigated it, broke up their separate schools, and their children have ever since attended the public schools. One of their rabbis for many years sat in the board of education without any of that sense of injury which is now felt by counsel.
    To suppose that the Roman Catholic clergy and people will sanction the common schools, under the omen of these resolutions, is absurd. Before they were adopted Archbishop Purcell had announced : “ We, as Catholics, can not approve that system of education for youth which is apart from instruction in the Catholic faith, and the teaching of the church.” And, by a recent pastoral, he has charged his 'reverend clergy “ that no boy or girl be admitted to first communion who will not have attended a Catholic school for two years ’before,” etc. The first comments of the leading and official newspaper organs of that church, upon this action of the board of education, will be found in Bible in the Public Schools, 318, 314. They demand the division of the school fund for the support of denominational schools, or that the tax must cease. And they use these resolutions as the reason why Protestants, if sincere, must join with them now in making that issue.
    The unwilling majority, therefore, who are supposed by counsel to support the board, are really looking to the destruction of public schools, and the substitution of a very different mode, for allowing “’all sects and opinions to enjoy alike'the benefit of the common-school fund,” from that which was offered them in these short-sighted resolutions.
    VIII. If section 7 of the bill of rights authorizes religious instruction, it is obvious that an exercise, consisting in tha “ reading of the Bible ” and “ appropriate singing,” can not be a “ form of worship” within the meaning of that section. The place of worship, and the form of worship,, which are there signified, are a church, and divine honor and rites to the Supreme Being, which Dr. Webster, in his-definition of worship, describes as consisting in adoration, confession, prayer, and' the like. This immunity, under the constitution, was never supposed to be violated, even by the prayers with which Congress, our legislatures, our' public bodies, are accustomed to be opened.
    IX. The result of the whole matter is, that without religious and moral instruction in free public schools, there-is a mass of society for whom there is no other chance, and who are to be reached in no other mode; and that our-overgrowing, cities are frightfully multiplying the extent and danger of this mass; not only the hot-bed of vice and crime, but the easy tools of political corruption. But, not as to these only, the times are pregnant with proof of the-absolute necessity for a constant and powerful reinforcement, by some means, of the moral fiber of the country.. In blotting out of the constitution the potent religious and moral energies which it intended the public schools shall wield, the court are asked to take a wide step backward.
    The organic institutions and maxims by which a people-have risen to greatness are never forsaken or compromised with impunity. Our safety is to adhere to our native principles and characteristics, and transmit them unimpaired-to the latest ages.
    X. Finally, with great deference to the zeal expressed by the counsel of the plaintiffs in error for the advance of the-cause of religion, we apprehend that it is misplaced. The cause of religion has very little at stake in this controversy, and nothing to lose. The true point of interest, here and now, is the public right and public good, which these resolutions, in their anxiety for the school fund, have left out of view.
    Law and right, as well as conscience, will be maintained' best, we submit, by the system of toleration which they strike down, and by repelling this attempt to convert the .schools to the interest of those who are opposed to religion. Whatever has been urged for the rights and conscience of those opposed to that compromise, which so long prevailed, applies with double force against a measure so obnoxious not only to equality and fairness, but subversive of a primary law and long-settled construction. Under that compromise, religion and moral instruction in the common schools has proved to be perfectly practicable. Those who will neither profit by it themselves, nor permit others who would, if by any means they can prevent them, ought, at any rate, to be consistent, and abdicate the name of Liberals.
   Welch, J.

The arguments in this case have taken a wide range, and counsel have elaborately discussed questions of state policy, morality, and religion, which, in our judgment, do not belong to the case. We are not called upon as a court, nor are we authorized to say whether the Christian religion is the best and only true religion. There is no question before us of the wisdom or unwisdom of having “the Bible in the schools,” or of withdrawing it therefrom. Nor can we, without usurping legislative functions, undertake to decide what religious doctrines, if any, ought to be taught, or where, when, by whom, or to whom it would be best they should be taught. These are questions which belong to the people and to other departments of the government.

The case, as we view it, presents merely or mainly a question of the courts’ rightful authority to interfere in the management and control of the public schools of the state. In other words, the real question is, has the court jurisdiction to interfere in the management and control of such schools, to the extent of enforcing religious instructions, or .the reading of religious books therein ?

Before proceeding to consider this question, however, it should be observed, that if the power be conceded, it would seem only to justify the court in suppressing the first of the .two resolutions in question. The only ground on which counsel attempt to sustain the court in suppressing the second resolution is, that the two resolutions are' so connected and interdependent that they must stand or fall together. But this is by no means true. By suppressing the first resolution, the court simply commands that there shall be some religions instruction, or religions reading in the schools, leaving it entirely to the discretion of the board to say how much and what kind of religious instruction shall be given, and what religious books shall be read, and when read, and whether they shall be read with or without “ appropriate singing.” In perfect consistency with this, the second resolution might be left to stand. That resolution merely repeals the rule requiring stated morning readings, with appropriate singing, at the opening of the schools. On the other hand, if the second resolution is also suppressed, all discretion of the board will be taken away, the rule for morning exercises will be made perpetual, and any board, or member of a board, who should hereafter attempt to modiiy or repeal that rule would be guilty of a contempt of court. As the case stands now, with both resolutions suppressed by the injunction, the board are, in effect., commanded or enjoined, jtirsf, not to withdraw all religious reading and instruction from the schools; and secondly, not to withdraw or discontinue the set morning reading of the Bible with singing. It is easy to see that obedience to the second command or injunction would be obedience to both, because as long as this morning exercise is continued, all religious reading .and instruction is not withdrawn. So far, therefore, from its being true that it is impracticable to enjoin the going into effect of the first resolution, and leave the second resolution in force, the truth is, that it is not only practicable, but that such is the very result that ought to be reached, if we admit the power of the court to interfere in the matter at all. The power of interference is only claimed to the extent of preventing an abuse of the board’s discretion, and not for the purpose of taking away that diseretion, and thus, so far as concerns religious instruction,, placing the schools under the exclusive and absolute control and supervision of the court. On the theory, therefore, of the court’s rightful authority to interfere to the extent claimed, it seems to us it must be admitted that its injunction suppressing the second resolution, operating, as-it must, to restore and make perpetual the rule requiring the stated morning exercises, is erroneous, and that for this reason the judgment must be reversed.

But.a reversal of the judgment on this ground alone-would by no means end the case. It would still remain,, either for this court, proceeding to render such judgment as the court below should have rendered, or for the court below, upon the cause being remanded, to decide, what I have said was the real question involved, namely, whether the court below had any jurisdiction in the matter. Do the laws of Ohio clothe its courts with power to interfere, either by injunction or mandate, to compel religious instructions and the reading of religious books in the public-schools of the state ?

If this power exists, it must be found in our state or federal constitution, or in statutes of the state enacted in conformity therewith. We know of no law enforceable by courts of the state above or beyond these.

We are referred to no provision of the federal constitution, nor to any enactment of the state legislature, conferring such a power.

Counsel for the. defendants in error, as we understand them, claim to derive this authority of the court from the last clause in section 7, article 1, in connection with section 2, article 6, of the state constitution, which are as follows:

Sec. 7. “All men have a natural and indefeasible right to-worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be-given, by law,'to any religious society ; nor shall any interference with the rights of conscience be permitted. No-religious test shall be required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, hoioever, being essential to-good government, it shall be the duty of the general assembly to• pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and' to encourage schools and the means of instruction.”
“ Sec. 2. The general assembly shall make such provisions., by taxation or otherwise, as, with the income arising from the-school trust fund, will secure a thorough and efficient system of common schools throughout the state; but do religious or other-sect or sects shall ever have any exclusive right to, or control of, any part of the school funds of this state.”

If we rightly comprehend the arguments, it is claimed on-behalf of the defendants in error, (1) that these provisions, in the constitution require and enjoin religious instructions,, or the teaching of religious doctrines in the public schools, irrespective of the wishes of the people concerned therein and (2) that this requirement and injunction rests, not upon-the legislature alone, but, in the absence of legislative action for that purpose, is a law of the state, proprio vigore, binding upon the courts and people.

If it is not conceded, it must be conceded that the legislature have never passed any law enjoining or requiring-religious instructions in the public schools, or giving the courts power in any manner, or to any extent, to direct or-determine the particular branches of learning to be taught therein, or to enforce instructions in any particular branch or branches. The extent of legislative action, either under the present constitution, or under that of 1802, -which contained a provision quite similar to the present, has been,‘to establish and maintain a general system of common schools-for the state, and to place their management and control exclusively in the hands of directors, trustees, or boards of education, other than the courts of the state. The laws/ establishing this system date back to 1825, and form an important part of the legislation of the state They have from time to time been changed, amended, repealed, and re-enacted. While these law's do refer to other branches of learning in the schools, they nowhere enjoin or speak of religious instruction therein. They speak of the “morals” and “good conduct” of the pupils, and of the “moral character” of the teachers, but they nowhere require the pupil to be taught religion, or the teacher to be religious. Much less do they require this to be done against the will of the people interested.

The special laws governing the public schools of the city of Cincinnati are not dissimilar, in this respect, to those of a general nature regulating the common schools of the state. The act of January, 1853 (Disney’s Stat. and Ord. 775), under which the board were acting at the time they .passed the resolutions in question, among other things, provides:

“ That the said trustees and visitors ” (afterward changed -to “ board of education ”) “ shall have the superintendence of "the schools in said city, organized and established under this act, and from time to time shall make such regulations for the government and instruction of'the children therein, as to them shall appear proper and expedient,”..... “and generally do and perform all matters and things pertaining to the duties of their said office, which may be necessary and proper to promote the education, morals, and good conduct of the children instructed in said schools.”

This act requires of teachers in the schools of the city the same certificate that is required by the general law relating to public schools, namely, a certificate of “ competency and good moral character.”

If the clause of the state constitution in question do enjoin the teaching of religious doctrines in the schools, either the law-making power of the state, during the legislation of nearly half a century, have failed so to interpret it, or they have acted in apparent disregard of its requirements. Under the old constitution,.which in fact contained a more stringent provision on the subject, no legislative action was had for twenty-three years, to enforce instruction in public schools, in any branch of learning; and at no time since has any law been passed to enforce religious instruction therein.

There is a total absence, therefore, of any legislation looking to the enforcement of religious instruction, or the reading of religious books in the public schools; and we are brought back to the question, what is the true meaning and effect of these constitutional provisions on this subject? Do they enjoin religious instructions in the schools? and does this injunction bind the courts, in the absence of' legislation ? "We are unanimous in the opinion that both these questions must be answered in the negative.

The clause relied upon as enjoining religious instructions in the schools declares three things to be essential to good government, and for that reason requires the legislature to encourage “means of instruction” generally, and among other means, that of “schools.” The three things so declared to be essential to good government are “religion, morality, and knowledge.” These three words stand in the same category, and in the same relation to the context; and if one of them is used in its generic or unlimited .sense, so are all three. That the word “ knowledge ” and the word “ morality ” are used in that sense, is very plain. The meaning is, that true religion, true morality, and true knowledge shall be promoted, by encouraging schools and means of instruction. The last named of these three words, “knowledge,” comprehends in itself all that is comprehended in the other two words, “religion” and “ morality,” and which can be the subject of human “ instruction.” True religion includes true morality. All that is comprehended in the word “ religion,” or in the words “religion and morality,” and that can be the subject of human “instructions,” must be included under the general term “knowledge.” Nothing is enjoined, therefore, but the encouragement of means of instruction in general “ knowledge” — the knowledge of truth. The fair interpretation seems to be, that true “religion” and “morality” are aided and promoted by the increase and diffusion of “knowledge,” on the theory that “knowledge is the hand-maid of virtue,” and that all three — religion,, morality, and knowledge — are essential to good government. But there is no direction given as to what system of general knowledge, or of religion or morals, shall be taught; nor as to what particular branches of suck system or systems shall be introduced into the “schools;” nor is any direction given as to what other “means of instruction” shall be employed, To enjoin “instructions”' in “ knowledge,” the knowledge of truth in all its branches — - religious, moral, or otherwise — is one thing; and to declare-what is truth — truth in any one, or in all departments of human knowledge — and to enjoin the teaching of that, as truth, is quite another thing. To enjoin the latter, would be to declare that human knowledge had reached its ultimatum. This the constitution does not undertake to do, neither as to “religion,” “morality,” nor any other branch or department of human “ knowledge.” And even had it so declared what was to be received and taught as religious-truth, to the exclusion of all else, it would still be necessary,, in order to make the case here claimed, to go further, and show what branches embraced in the injunction are required» to be taught in the schools, and that those to be so taught include the subject of religion.

The truth is that these are matters left to legislative discretion, subject to the limitations on legislative power, regarding religious freedom, contained in the bill of rights; and subject also to the injunction that laws shall be passed, such as in the judgment of the legislature are “suitable” to encourage general means of instruction, including, among other means,, a system of common schools.

Equally plain is it to us, that if the supposed injunction to provide for religious instructions is to be found in the clauses of the constitution in question, it is one that rests-exclusively upon the legislature. In both sections the duty is expressly imposed upon the “ general assembly.” The’ injunction is, to “ pass suitable laws.” Until these “ laws” •are passed, it is quite clear to us that the courts have no power to interpose. The courts can only execute the laws when passed-. They can not compel the general assembly "to pass them.

This opinion might well end here. Were the subject of controversy any other branch of instructions in the schools than religion, I have no doubt it might safely end here, and the unanimous opinion of the court thus rendered be satisfactory to all. The caséis of peculiar importance, however, in the fact that it touches our religious convictions rand prejudices, and threatens to disturb the harmonious working of the state government, and particularly of the public schools of the state. I deem it not improper, therefore, to consider briefly some of the points and matters so ably and elaborately argued by counsel, although really lying outside of the case proper, or only bearing on it remotely.

The real claim here is, that, by “ religion,” in this clause of the constitution, is meant “ Christian religion,” and that by “ religious denomination ” in the same clause is meant “Christian denomination.” If this claim is well founded, I do not see how we can consistently avoid giving a like meaning to the same words and their cognates, “ worship,” “religious society,” “sect,” “conscience,” “religious belief,” throughout the entire section. To do so, it will readily be seen, would be to withdraw from every person not of Christian belief the guaranties therein vouchsafed, and to withdraw many of them from Christians themselves. In that sense the clause of section 7 in question would read .as follows:

“Christianity, morality, and knowledge, however, being essential to good government, it shall be the duty of the .general assembly to pass suitable laws to protect every Christian denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.”

Nor can I see why, in order to be consistent, the concluding clause of section 2, article 6, should not read as follows: .... “ But no Christian, or other sect or sects, shall ever have any exclusive right to or control of any part of the school funds of the state; but Christians, as a body, including all their sects, may have control of the whole of said funds.”

I do not say that such a reading of the sections in question is literally contended for; and yet I see no fair escape from it, if, the word “ Christianity,” or the words “ Christian religion,” or “ the religion of the Bible,” are to be interpolated, or substituted for the word “religion,” at the place indicated.

If, by this generic word “ religion,” was really meant “ the Christian religion,” or “ Bible religion,” why was it not plainly so written ? Surely the subject was of importance enough to justify the pains, and surely it was of interest enough to exclude the supposition that it was-written in haste, or thoughtlessly slurred over. At the time of adopting our present constitution, this word “ religion ” had had a place in our old constitution for half a century, which was surely ample time for studying its meaning and effect, in order to make the necessary correction or alteration, so as to render it's true meaning definite and certain. The same word “religion,” and in much the same connection, is found in the constitution of the United States. The latter constitution, at least, if not our own also, in a sense, speaks to mankind, and speaks of the rights of man. Neither the word “ Christianity,” “ Christian,” nor “ Bible,” is to be found in either. When they speak of “ religion,” they must mean the religion of man, and not the religion of any class of men. When they speak of “all men” having certain rights, they can not mean merely “all Christian men.” Some of the very men who helped to frame these constitutions wore themselves not Christian men.

We are told that this word “ religion ” must mean “ Christian religion,” because “ Christianity is a part of the-common law of this country,” lying behind and above its constitutions. Those who make this assertion can hardly be serious, and intend the real import of their language. If Christianity is a law of the state, like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in» this country, or, I might almost say, in this age of the world. The only foundation — rather, the only excuse — for the proposition, that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people. And is not the very fact that those laws do not attempt to enforce Christianity, or to place it upon exceptional or vantage ground, itself a strong evidence that they are the. laws of a Christian people, and that their religion is the best and purest of religions? It is strong evidence that their religion is indeed a religion “without partiality,” and therefore a religion “ without hypocrisy.” True Christianity asks no aid from the sword of civil authority. It began, without the sword, and wherever it has taken the sword it has perished by the sword. , To depend on civil authority for its enforcement is to acknowledge its own weakness, which it can never afford to'do. It is able to fight its own battles. Its weapons are moral and spiritual, and not carnal. Armed with these, and these alone, it is not afraid nor “ashamed” to be compared with other religions, and to withstand them single-handed. And the very reason, why it is not so afraid or “ ashamed ” is, that it is not the “ power of man,” but “ the power of God,” on which it depends. True Christianity never shields itself behind majorities. Nero, and the other persecuting Roman emperors,, were amply supported by majorities; and yet the pure and peaceable religion of Christ in the end triumphed over them all; and it was only when it attempted itself to enforce religion by the arm of authority, that it began to wane. A form of religion that can not live under equal and impartial laws ought to die, and sooner or later must die.

Legal Christianity-is a solecism, a contradiction of terms. "When Christianity asks the aid of government beyond mere impartial protection, it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, religion never rises above the merest superstition ; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.

Religion is not — much less is Christianity or any other particular system of religion — named in the preamble to the constitution of the United States as one of the declared objects of government; nor is it mentioned in the clause in question, in our own constitution, as being essential to anything beyond mere human government. Religion is “ essential ” to much more than human government. It is essential to man’s spiritual interests, which rise infinitely above, and are to outlive, all human governments. It would have been easy to declare this great truth in the constitution ; hut its framers would have been quite out of their proper sphere in making the declaration. They contented themselves with declaring that religion is essential to good government; providing for the protection of all in its enjoyment,-each in his own way, and providing means for the diffusion of general knowledge among the people. The declaration is, not that government is essential to good (religion, but that religion is essential to good government. Both propositions are true, but they are true in quite different senses. Good government is essential to religion for the purpose declared elsewhere in the same section of the constitution, namely, for the purpose of mere protection. But religion, morality, and knowledge are essential to .government, in the sense that they have the instrumentalities for producing and perfecting a good form of government. On the other hand, no government is at all adapted for producing, perfecting, or propagating a good religion. Religion, in its widest and best sense, has most, if not all, the instrumentalities for producing the best form of government. Religion is the parent, and not the offspring, of good government. Its kingdom is to be first sought, and good government is one of those things which will be added thereto. True religion is the sun which gives to government all its true lights, while the latter merely acts upon religion by reflection.

Properly speaking, there is no such thing as “ religion of state.” What we mean by that phrase is, the religion -of some individual, or set of individuals, taught and enforced by the state. The state can have no religious opinions; and if it undertakes to enforce the teaching of such opinions, they must be the opinions of some natural person, or class of persons. If it embarks in this business, whose opinion shall it adopt ? If it adopts the opinions of more than one man, or one class of men, to what extent may it group together conflicting opinions ? or may it group together the opinions of all ? And where this conflict exists, how thorough will_ the teaching be ? Will it be exhaustive and exact, as it is in elementary literature and in the sciences usually taught to children ? and, if not, which of the doctrines or truths claimed by each, will be blurred over, and which taught in preference to those in conflict? These are difficulties which we do not have to encounter when teaching the ordinary branches of learning. It is only when we come to teach what lies “ beyond the scope of sense and reason ” — what from its very nature can only be the object of faith — that we encounter these difficulties. Especially is this so when our pupils are children, to whom we are compelled to assume a dogmatical method and manner, and whose faith at last is more a faith in us than in anything else. Suppose the state should undertake to teach Christianity in-the broad sense in which counsel apply the term, or the “ religion of the Bible,” so as also to include the Jewish faith, — where would it begin? .how far. would it go ? and what points of disagreement; would be omitted ?

If it be true that our law enjoins- the teaching of the Christian religion in the schools, surely, then, all its teachers should be Christians. Were I such a teacher, while 1 should instruct the pupils that the Christian religion was true and all other religions false, I should tell them that the law itself was an unchristian law. One of my first lessons to the pupils -would show it to be unchristian. That lesson would be: “ Whatsoever ye would that men should do to’ you, do ye even so to them; for this is the law and the-prophets.” I could not look the veriest infidel or heathen in the face, and say that such a law was just, or that it was a fair specimen of Christian republicanism. I should have-to tell him that it was an outgrowth of false Christianity, and not one of the “ lights ” which Christians are commanded to shed upon an unbelieving world. I should feel bound to acknowledge to him, moreover, that it violates-the spirit of our constitutional guaranties, and is a state religion in embryo; that if we have no right to tax him to-support “ worship,” we have no right to tax him to support religious instructions; that.to tax a man to put down his-own religion is of the very essence of tyranny; that however small the tax, it is a first step in the direction of an “ establishment of religion;” and I should add, that the-.first step in that direction is the fatal step, because it logically involves the last step.

But it will be asked, how can religion, in this general sense, be essential to good government ? Is atheism, is the-religion of Buddha, of Zoroaster, of Lao-tse, conducive to-good government ? Does not the best government require-the best religion ? Certainly the best government requires-the best religion. It is the child of true religion, or of truth on the subject of religion, as well as on all other subjects. But the real question here is, not what is the best, religion, but how shall this best religion be secured ? I answer, it can best be secured by adopting the doctrine of this 7th section in our own bill of rights, and which I summarize in two words, by calling it the doctrine of “ hands-off.” Let the state not only keep its own hands off, but let it also see to it that religious sects keep their hands off’ each-other. Let religious doctrines have a fair field, and a free, intellectual, moral, and spiritual conflict. The weakest — that is, the intellectually, morally, and spiritually weakest — will go to the wall, and the best will triumph in the-end. This is the golden truth which it has taken the world eighteen centuries to learn, and which has at last solved the terrible enigma of “ church and state.” Among the-many forms of stating this truth, as a principle of government, to my mind it is nowhere more fairly and beautifully-set forth than in our own constitution. "Were it in my power, I would not alter a syllable of the form in which it is there put down. It is the true republican doctrine. It is simple and easily understood. It means a free conflict, of opinions as to things divine; and it means masterly inactivity on the part of the state, except for the purpose of keeping the conflict free, and preventing the violation of private rights or of the public peace. Meantime, the state will impartially aid all parties in their struggles after religious truth, by providing means for the increase of general knowlege, which is the handmaid of good government, as well as of true religion and morality. It means that a man’s right to his own religious convictions, and to impart them to his own children, and his and their right to engage, in conformity thereto, in harmless acts of worship toward the Almighty, are as sacred in the eye of the law as his rights of person or property, and that although in the minority, he shall be protected in the full and unrestricted enjoyment thereof. The “ protection ” guarantied by the section in question, means protection to the minority. The majority can protect itself. Constitutions are enacted for the very purpose of protecting the weak against the strong; the few against the many.

As with individuals, so with governments, the most valuable truths are often discovered late in life; and when discovered, their simplicity and beauty make us wonder that we had not known them before. Such is the character and history of the truth here spoken of. At first sight it seems to lie deep ; but on close examination we find it to be only a new phase or application of a doctrine with which true religion everywhere abounds. It is simply the doctrine of conquering an enemy by kindness. Let religious sects adopt it toward each other. If you desire people to fall in love with your religion, make it lovely. If you wish to put down a false religion, put it down by kindness, thus heaping coals of fire on its head. You can’t put it down by force ; that has been tried. To make the attempt, is to put down your own religion, or to abandon it. . Moral and spiritual conflicts can not be profitably waged with carnal weapons. When so carried on, the enemy of truth and right is too apt to triumph. Even heathen writers have learned and taught this golden truth. Buddha says : “ Let a man overcome anger by love, evil by good, the greedy by liberality, and the slanderer by a true and upright life.” Christianity is full of this truth, and, as a moral code, might be said to rest upon it. It is in hoc signo, by the use of such weapons, that Christianity must rule, if it rules at all.

We are all subject to prejudices, deeper and more fixed on the subject of religion than on any other. Each is, of course, unaware of his own prejudices. A change of circumstances often opens our eyes. No Protestant in Spain, and no Catholic in this country, will be found insisting that the government of his residence shall support and teach its own religion to the exclusion of all others, and tax all alike for its support. If it is right for one government to do so, then it is right for all. Were Christians in the minority here, I apprehend no such a policy would be thought of by them. This is the existing policy of most governments in the world. Christian countries, however, are fast departing from it — witness Italy, Prussia, Spain, England. The true doctrine on the subject is the doctrine of peaceful disagreement, of charitable forbearance, and perfect impartiality. Three men — say, a Christian, an infidel, and a Jew — ought to be able to carry on a government for their common benefit, and yet leave the religious doctrines and worship of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his searches after truth. If they are sensible and fair men,, they will so carry on their government, and carry it on successfully, and for the benefit of all. If they are not sensible and fair men, they will he apt to quarrel about religion, and, in the end, have a bad government and bad religion, if they do not destroy both. Surely, they could well and safely carry on any other business, as that of banking, without involving their religious opinions, or any acts of religious worship. Government is an organization for particular purposes. It is not almighty, and we are not to look to it for everything. The great bulk of human affairs and human interests is’left by any free government to individual" enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government.

Counsel say that to withdraw all religious instruction-from the schools would' be to put them under the control of “ infidel sects.” This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing; and to give no instructions on the-subject is quite another thing. The only fair and impartial - method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the state-schools, where of necessity all are to meet; and to put disputed doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely he taught elsewhere. Our charitable, punitive, and disciplinary institutions stand on an-entirely different footing. There the state takes the place of the parent, and may well act the part of a parent or guardian in directing what religious instructions shall be given.

The principles here expressed are not new. They are the same, so far as applicable, enunciated by this court in Bloom v. Richards, 2 Ohio St. 387, and in McGatrick v. Wason, 4 Ib. 566. They are as old as Madison, and were his favorite opinions. Madison, who had more to do with framing the constitution of the United States than any other man, and - whose purity of life and orthodoxy of religious belief no one questions, himself says :

“ Religion is not within the purview of human government.” And again he says: “ Religion is essentially distinct from human government, and exempt from its cognizance. A connection between them is injurious to both. There are causes in the human breast which insure the perpetuity of religion without the aid of law.”

In his letter to Governor Livingston, July 10, 1822, he says: “ I .observe with particular pleasure the view you have taken of the immunity of religion from civil government, in every case where it does not trespass on private rights or the public peace. This has always been a favorite •doctrine with me.”

I have made this opinion exceptionally and laboriously long. I have done so in the hope that I might thereby aid in bringing about a harmony of views and a fraternity of feeling between different classes of society, who have a common interest in a great public institution of the state, which, if managed as sensible men ought to manage it, I have no doubt, will be a principal instrumentality in working out for us what all desire — the best form of government .and the purest system of religion.

I ought to observe that, in our construction of the first named of the two resolutions in question, especially in the light of the answer of the board, we do not understand that .any of the “ readers,” so called, or other books used as mere lesson-books, are excluded from the schools, or that any inconvenience from the necessity of procuring new books will be occasioned by the enforcement of the resolutions.

It follows that the judgment of the Superior Court will be reversed, and the original petition dismissed.

Judgment accordingly.  