Page:The World's Most Famous Court Trial - 1925.djvu/77

 somewhere, and where is a better place to lodge it than in the general assembly, composed of men from the different counties of the state, men who represent a certain standard in their legislative and senatorial district; men who are responsible to their constituency, to the citizens of Tennessee for the acts that they commit.

Here is a uniform system of public schools in the state of Tennessee. Who has the right to control it? If the legislature should not have the right to control them, then who ought to have the right to control them. Who may say what books shall be taught or what books shall not be taught; who has that right? The legislature has that right. If they don't have it, who could have it? Where could the power be lodged? Where in the state of Tennessee could you lodge a central power to control the uniform system, if the court please? I think the case of Leeper vs. State settled that question beyond peradventure of a doubt, and that it settles it definitely. I think it says that case construed with the case of the U. S.—I have forgotten the style of it—

The Court—Nebraska?

Gen. Stewart—Nebraska case, construed with that case, Your Honor. I think it is as plain as it can be possibly made that in the exercise of its police power the state legislature has the right to execute a uniform law regarding the uniform system of public schools. Who then has a right to control, who then has the right to control the management of these public schools, and they have a right to name the curriculum for each and every one of these public schools, because they have a right to control the system.

They do it in the exercise of their police power and the court will not refute this except as to where it is shown that there is an abuse of this power. It must be a reasonable use, and the reason is the one test, the only test that can be applied to it. And reason is the test we would want to apply to it, and we are willing that the test of reason be applied to it.

This, if the court please, the constitutionality of this act—the question is important that they have no right, that it is an abridgement of rights.

Your Honor, just a few more words.

The Police Officer—No, no talking in the courtroom.

Gen. Stewart—Your Honor, just a few more words and I am through.

Attack is made upon the right of the legislature to pass such an act. The question has been made that it abridges the right of religious liberty; that it is an intervention of that section of the constitution. Much more might be said about it. I could make, in a very short time, a speech about it, but that is unnecessary and perhaps foolish; it would be sufficient to say that I believe, Your Honor, that this is important upon a construction of the constitution as to whether or not the state was, in the exercise of its police power, as to the right to control the curriculum in the public schools. The question on the invasion of religious liberty is not even raised in the case of the State vs. Marbury, the Nebraska case, where they passed a law you could not teach except in the English language. There is no question there in the violation of that part of the constitution. No question was made in that case. No question was made in the Leeper case it is an invasion if the court please, of any religious liberty, and they inject it into this case only because the Bible is mentioned.

Now, what is the difference? If the state has a right in the exercise of its police power to say you cannot teach Wentworth's arithmetic or Fry's geography, it has the same right to say you cannot teach any theory that denies the divine creation of man. This is true because the legislature is the judge of what shall be taught in the public schools and that is the reason it is true. Police power, the exercise of po-