
    STATE, Respondent, v. DAVIS et al., Appellants
    (10 N. W.2d 288.)
    (File No. 8532.
    Opinion filed July 3, 1943.)
    N. B. Bartlett, of Lennox, and Hayden C. Covington, of Brooklyn, N. Y., for Appellants.
    Leo A. Texnmey, Atty. Gen., and Sigurd Anderson, Asst. Atty. Gen., and M. E. Miller, State’s Atty., of Lake Andes, for Respondent.
   PER CURIAM.

The appellants belong to the sect known as Jehovah’s Witnesses. Appellants are the parents of a son, Donald Davis, who is also a member of the sect and who at the times here involved, was a pupil in the 6th grade of the Geddes Public • Schools. Donald refused to comply with a school regulation which required all pupils at certain times to salute the American Flag. The ceremony wherein the salute is required is substantially as follows; The children are required to repeat the following: “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for' all.” While giving the pledge each child is required to extend his right hand forward, palm upward, as a salute to the flag. The basis for Donald’s refusal to join in this commonly -accepted saluate to the flag, is the religious belief entertained by Jehovah’s Witnesses. These Witnesses are taught and believe that the flag is an image within the meaning of Exodus, Chap. 20, verses 4 and 5, which says: “Thou shalt not make unto thee, any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: Thou shalt not bow down thyself to them, nor serve them: * * .

Following Donald’s refusal to salute the flag he was dismissed from school by the school authorities and remained absent for an extended' period. Appellants were thereupon arrested, charged with the violation óf SDC 15.3201 and 15.9915. Appellants were found guilty by jury and have appealed from the judgment of the court entered upon such verdict.

The issue presented by this appeal has been before many courts within the past months and the decisions are not in harmony. However, the Supreme Court of the United States on June 14th, 1943, handed down its opinion in the case of West Virginia State Board of Education v. Barnette et al., 319 U. S. 624 S. Ct. 1178, 1187, 87 L. Ed. 1628, in which it is held that, when applied to the sect of Jehovah’s Witnesses,. “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” This holding of the Supreme Court of the United States disposes of the decisive issue now before us. Under this holding it was without the authority of the officers and teachers of the Geddes school to require Donald to participate in the salute to the flag and Donald’s dismissal from school for his failure to participate in the ceremony was unjustified. The appellants’ failure to cause Donald to attend school, was due solely to their religious-beliefs, which the Supreme Court has now held were unconstitutionally impinged by the-flag salute requirement, and it follows that the conviction cannot be sustained.

The judgment appealed from is reversed.

All the Judges concur.  