Page:The World's Most Famous Court Trial - 1925.djvu/112

 see, the supreme court of Tennessee said that "The state may establish a uniform series of books to be taught in the school which it provides and controls seems to be a proposition as evident as that it may provide a uniform system of schools, which we take it is not now an open question."

In deciding the Leeper case the court referred to, with approval, the case of the State vs. Hayworth, 122 Indiana, 462, thusly: The reasoning of the court in the case of State vs. Hayworth is so satisfactory and conclusive that we cannot, perhaps, do better than give a synopsis of it. It was held that such an act does not infringe in the slightest degree upon the right of local self-government; that essentially and inferentially the schools in which are educated and trained the children that are to become the rulers of the commonwealth are matters of state, and not local, jurisdiction; that in such matters the state is a unit and the legislature the source of power; that the establishment and control of public schools is a function of the general assembly, both under the constitution, and because it is a matter of state concern. Being a matter of legislative control, the legislature may abandon one plan and try another, if it sees proper, and the courts cannot interfere. It is further pertinently said, that it is impossible to conceive the existence of a uniform system of public schools without powers lodged somewhere to make them uniform, and in the absence of express constitutional provisions the power must necessarily reside in the legislature, and hence it has the power to prescribe a course of study as well as the books to be used, and how they shall be obtained and distributed, and its discretion as to methods cannot be controlled by the courts. We find neither reason nor authority that suggests a doubt as to the power of the legislature to require a designated series of books to be used in school.

The rule prevailing in Tennessee by which the courts are governed in passing upon the constitutionality of statutes is this: The rule of construction that every intendment and presumption is in favor of the constitutionality of the statute and that every doubt must be solved so as to sustain it; and where it is subject to two constructions, that which will sustain its constitutionality must be adopted.

Under the holdings in the Oregon case and in the Nebraska case, and in the Leeper-Tennessee case, the court is satisfied that the act involved in the case at bar does not violate the Fourteenth amendment to the constitution of the United States, and is, therefore, pleased to overrule this ground.

The court, having passed on each ground chronologically, and given the reasons therefor, is now pleased to overrule the whole motion, and require the defendant to plead further.

(Following the reading by the court of the opinion on motion to quash the indictment).

Mr. McElwee—Your honor, we desire to enter an exception to your honor's ruling in overruling our motion to quash the indictment and in holding the act under which Mr. Scopes is being prosecuted meets the requirements and is not in conflict with the constitution of Tennessee, or of the constitution of the United States. We do this out of abundance of precaution and to keep the record straight in event that a record may be made in this case ultimately.

Mr. Neal—May it please your honor, I would like to remind your honor that at this moment we would like to have considered filed our demurrer, which is absolutely the same as the motion to quash, and I assume that your honor will probably take the same action.

The Court—To be frank, Judge Neal, you handed me a copy of the demurrer, but I have had such great responsibilities that I have not seen it.

Mr. Neal—Well, we assure your honor that it is simply for the purpose of procedure and the record; the demurrer is exactly the same as the motion to quash.