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fundamental principles of which the religious sects do not disagree. * No teacher in said schools is required. by law to give instructions from the last said book, except such as is absolutely necessary for the use of the same as a supplemental text-book on reading, and no teacher is by said board allowed to make note or comment upon anything in said book contained; and, further, said book is used as a supplemental text-book on reading, as aforesaid, and not otherwise. * * It has never been the purpose nor intention of said board to require of the pupils of the grammar grades in said schools to listen to the readings from said book, but, on the contrary, such readings take place at the close of the sessions of said schools, and any and all pupils, by the order of said board, are excused therefrom upon the applications of either their parents or guardians; and, further, said superintendent is not vested with, nor is he authorized to exercise, any discretion whatever in the matter, but is required, under and by the rules of said board, to excuse any and all pupils from being present at such readings whenever an application therefor is made by the parents or guardians of such pupil or pupils.”

The contention of relator is that the action of the board is forbidden by the Constitution of the State. The provisions touching this question are as follows (article 4):

"SEC. 39. The legislature shall pass no law to prevent any person from worshiping Almighty God according to the dictates of his own conscience, or to compel any person to attend, erect, or support any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion.

"SEC. 40. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the State be appropriated for any such purposes.

"SEC. 41. The legislature shall not diminish or enlarge the civil or political rights, privileges, and capacities of any person on account of his opinion or belief concerning matters of religion."

The precise question is not whether the pupil can be compelled to attend religious exercises, nor necessarily whether the reading of the Bible, or an extract from it, constitutes religious worship; but whether such reading of

extracts from the Bible, at which reading pupils whose faith or scruples are shocked by hearing the passages read are not required to attend, constitutes the teacher a teacher of religion, or amounts to a restriction of the civil or political rights or privileges of such students as do not attend upon the exercises.

Is the reading of extracts taken from the Bible a violation of the provision of the Constitution which inhibits the diminishing or enlargement of the civil or political rights, privileges, and capacities of the individual on account of his opinion or belief concerning matters of religion? We do not think it can be maintained that this section has any application to this subject. The primary purpose of this provision was to exclude religious tests, and to place all citizens on an equality before the law as to the exercise of the franchise of voting or holding office. The language is inapt to be applied as restricting the use of school-rooms or school funds. It might be said that many of the students in our schools are not in position to avail themselves of the opportunity to study the dead languages. Is it therefore an unjust discrimination to provide for instruction in Latin and Greek for such pupils as are able to devote their time to those studies? Does it harm one who does not, for conscientious reasons, care to listen to readings from the Bible, that others are given the opportunity to do so? Is it not intolerant for one not required to attend to object to such readings? It may be said, of course, that the services of the teacher while engaged in these exercises are paid out of the fund in which all are entitled to share; but the same is true of the time which the teacher devotes to the languages, or instruction in higher mathematics. Does it follow that the civil rights or privileges of the students who do not accept teaching in those branches, or those who do, have been, on the one hand, diminished, or, on the other, enlarged? I do not think it should be so held.

Nor has section 40 any more appropriate application. This section has a very plain meaning, which is that the

public money may not be turned over to a religious sect to maintain churches or seminaries; and unless the readings from the Bible, or selections from the Bible, constitute the public school a religious or theological seminary, this section has not, in my judgment, any application.

As is stated in the opinion of the learned circuit judge, the most significant provision is section 39; and the meritorious question is whether any student or any taxpayer has been compelled to attend, erect, or support a place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion. In determining this question, we should endeavor to place ourselves in the position of the framers of the Constitution, and ascertain what was meant at the time; for, if we are successful in doing this, we have solved the question of its meaning for all time. It could not mean one thing at the time of its adoption, and another thing today, when public sentiments have undergone a change. McPherson v. Secretary of State, 92 Mich. 377 (16 L. R. A. 475, 31 Am. St. Rep. 587). It is therefore essential that we determine the intent of this provision by reference to the state of the law or custom previously existing, and by the contemporaneous construction, rather than attempt to test its meaning by the socalled advanced or liberal views obtaining among a large class of the community at the present day.

A similar provision was introduced into the convention of 1835. The provision was as follows:

"Every person has a right to worship Almighty God according to the dictates of his own conscience; and no person can of right be compelled to attend, erect, or support, against his will, any place of religious worship, or pay any tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion." Const. 1835, art. 1, § 4.

As is pointed out in the brief of the learned counsel for the respondent (to whom we are much indebted for a most laborious and careful research into the historical

origin of this provision), the provision was doubtless taken from the Virginia constitution of 1830. It is clearly shown by that research that the inhabitants of that commonwealth were by statute compelled to attend upon divine service. Ministers were, in public statutes, referred to as "teachers of religion." In 1784 a statute making provision for the support of ministers of the established church was introducea under the title of "A bill to establish a provision for teachers of the Christian religion." This statute was repealed by a general statute adopted in 1786, entitled "An act for establishing religious freedom," the preamble of which clearly shows that the term "teacher of religion" was used as synonymous with "minister." The constitution of 1830 was but an embodiment of this enactment in the organic law of the State. Can it be said that the adoption of this provision into our constitution of 1835 was intended to have a wider scope? I think not. It is significant that this constitution was adopted in pursuance of authority conferred by article 5 of the articles of compact contained in the ordinance of 1787 (Scott v. Detroit Young Men's Society, 1 Doug. 119), which gave to the people of the territory a right to form a constitution in conformity with the principles contained in the articles. The ordinance of 1787 declared that religion, morality, and knowledge were necessary to good government and the happiness of mankind, and provided that, for these purposes, schools and the means of education should forever be encouraged. It is not to be inferred that, in forming a constitution under the authority of this ordinance, the convention intended to prohibit in the public schools all mention of a subject. which the ordinance, in effect, declared that schools were to be established to foster,-particularly as the provision, when traced to its historie origin, is shown to have been aimed at quite another evil. In my opinion, this provision, when incorporated into our organic law, meant simply that the inhabitants of the State should not be required to attend upon those church services which the

people of Virginia had been by this same enactment relieved from, and that no one should be compelled to pay tithes or other rates for the support of ministers. If this meaning attached at that time, it has not been changed since.

I do not wish to be understood as assenting to the proposition that the ordinance of 1787 makes it imperative that religion shall be taught in the public schools. It was doubtless the opinion of the framers of that great document that public schools would of necessity tend to foster religion. But the extent to which I go is to say that the language of this instrument, when read in the light of the fact that this was at that date a Christian nation, is such as to preclude the idea that the framers of the constitution, "in conformity with the principles contained in the ordinance," intended, in the absence of a clear expression to that effect, to exclude wholly from the schools all reference to the Bible. I should certainly mistrust my judgment if it led me to a different conclusion, and on the best of grounds. The return in this case shows that since the admission of this State into the Union, a period of more than half a century, the practice has obtained in all the State institutions of learning of not only reading from the Bible in the presence of students, but of offering prayer; that the text-books used in the public schools of the State have contained extracts from the Bible, and numerous references to Almighty God and His attributes; and all this without objection from any source. These usages we

may also take judicial notice of. In a doubtful case, involving any other question than one which appeals so strongly to the prejudices of men, would not this universal usage, extending over so long a period, be deemed decisive by every one as a practical construction made by the administrative branch of government? Judge COOLEY, in his Constitutional Limitations (page 82, 6th Ed.), says:

"Where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution,