Page:The World's Most Famous Court Trial - 1925.djvu/68

 aid, to comfort. Cherish means to protect, comfort, aid and so forth. So that it could not be any more than directory. It shall be the duty of the legislature to cherish literature and also to cherish science.

The Court—That would be a question of policy addressing itself to the legislature?

Gen. Stewart—If your Honor pleases, just as in the question where the question has been raised that the spirit of the constitution has been violated by a certain act they hold that this is a matter which addresses itself purely to the legislature. They have a right to say in their acts what is the spirit and what is not the spirit of the constitution. The question cannot be raised that the legislature violates the spirit of the constitution in any act. The spirit of the unwritten law or the unwritten part of he constitution.

As has been said only the express words of the constitution can be violated; but in determining that question the supreme court has said what the spirit of the constitution is, and in that addresses itself to the legislature. But, likewise this as Judge White says is merely a direction to the legislature. They are not bound by it, and it is left for them to interpret, and there is nothing binding about it at all.

Supposing then there should come within the minds of the people a conflict between literature and science? Then what would the legislature do? Wouldn't they have to interpret? It would go to the act, speaking to us through the statute book. Wouldn't they have to interpret their construction of this conflict which one should be recognized as higher or more in the public schools? Where there would be a conflict between literature and science? It is merely directory. And as he states, eloquently to me, that it merely expresses the policy or the feeling of the people at the time.

The Court—You say they cited Judge White approvingly in some other cases?

Gen. Stewart—Not stating it to be approved, your honor, but it is cited, and the presumption would be where it is cited in some of these cases that I can cite to your honor, in this brief, it would, of course, approve it. Now on that same proposition of cherishing science and literature, the case reported in 103 Tennessee, Page 209, which is to my mind the controlingcontrolling [sic] case, on the proposition, and we reach the last question—and the greatest question we might discuss on this, the case of Leeper versus the State of Tennessee, where the uniform textbook law was attacked and numerous questions raised, and in a very lengthy opinion by the supreme court they placed within the legislature the absolute power to control the public school system.

In this case, if your honor please, I want to read from it. In construeing Article 11, Section 12, the same article we are reading from here, cherishing literature and science they say: "We are of the opinion that the legislature under the constitutional provisions, may as well establish a uniform system of schools and taxation and a uniform system of criminal law and, of course, to execute them."

Now, I think this dictum announced in this dissenting opinion is to cherish literature and science. What else could it mean? What else could the constitution mean, if they had meant for the legislature to recognize literature and science, for instance, over and above the Bible in so many words? If they had intended that the legislature recognize science over literature, they would have said so. If they had intended that the legislature should pass laws recognizing science they would have said so affirmatively. They merely say it shall be the duty of the legislature to cherish literature and science. And who, who in the last analysis, if the court pleases, has the right to say whether they have or not? It is merely directory to the legislature.

The Court—Do you think that would be a question of public policy, addressing itself to the legislature?

Gen. Stewart—It might be.