Page:The World's Most Famous Court Trial - 1925.djvu/75

 of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Now, on that assignment, if the court please, comes the discussion of the exercise of police powers, and that assignment, I think, is the only one your honor which might be seriously considered. In the consideration of this assignment, I have made careful search of authorities, and while I have found much law in favor of the state's position, there are particularly two or three cases from which we shall quote, and largely, these are derterminativedeterminative [sic] of the issues here. The case of Meyer vs. The State of Nebraska, which is reported in the supreme court reports, lawyers' edition, is a case recently decided by the supreme court of the United States, and in that we have an act of that state—Nebraska—which prohibited the teaching in any of the schools of that state—not just the public schools, but all schools—any language other than the English language to any pupil under the eighth grade. The supreme court held that act unconstitutional. They said that it contravened that it was an abridgement of the right—that it invaded the right of property, that it was unconstitutional on account of the Fourteenth Amendment. They hold in substance that the school teacher was deprived of the right to pursue his lawful occupation to teach German in the private and parochial schools of that state. And here is in part what they said.

The Court—Have you a copy of the opinion?

Gen. Stewart—Yes, sir; I have the book at the office. Further in deciding the case the court said, in part:

"The problem for our determination is whether the statute is construed to apply and unreasonably infringes the liberty granted by the Fourteenth Amendment." They pass directly upon this question. "While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, and some of the included things has been definitely stated. Without doubt it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life. Plaintiff in error taught this language in school as a part of his occupation—his right to thus teach and the right of parents to engage him, we think are within the liberty of the amendment."

Thus the line is drawn and in deciding the case, the supreme court held that this law was unconstitutional, but we call the court's especial attention that the court held it was unconstitutional because it affected all the schools—not only the public schools, but the private schools and in this connection we call the court's special attention to the comment of the supreme court in this opinion at the conclusion of the same, and just before decision. "The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instruction in English is not questioned. Nor has challenge been made of the state's power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy."

That is theythe [sic] very crux of this lawsuit. That is absolutely the question involved here, if Your Honor please. And the case of Leeper against the state of Tennessee—on this case, and the case of Leeper against the state of Tennessee we are willing to risk our rights.

The Court—That is the Nebraska case?