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FARRINGTON v. T. TOKUSHIGE, 273 U.S. 284 (1927)

U.S. Supreme Court

FARRINGTON v. T. TOKUSHIGE, 273 U.S. 284 (1927)

273 U.S. 284

FARRINGTON, Governor, et al.
No. 465.

Argued Jan. 21, 1927.
Decided Feb. 21, 1927.

[273 U.S. 284, 285]   Mr. Wm. B. Lymer, of Honolulu, Hawaii, for petitioners.

[273 U.S. 284, 288]   Mr. Joseph Lightfoot, of Honolulu, Hawaii, for respondents.

[273 U.S. 284, 290]  

Mr. Justice McREYNOLDS delivered the opinion of the Court.

The Circuit Court of Appeals affirmed (11 F.(2d) 710) an interlocutory decree rendered by the United States District Court of Hawaii July 21, 1925, which granted a temporary injunction forbidding petitioners-Governor, Attorney General, and superintendent of public instruction of that territory-from attempting to enforce the provisions of Act 30, Special Session 1920, Legislature of Hawaii, entitled 'An act relating to foreign language schools and teachers thereof,' as amended by Act 171 of 1923 and Act 152 of 1925, and certain regulations adopted by the department of public instruction June 1, 1925. The interlocutory decree was granted upon the bill and affidavits presented by both sides. No answer has been filed. In these circumstances we only consider whether the judicial discretion of the trial court was improperly exercised.

Respondents claimed below and maintain here that enforcement of the challenged act would deprive them of their liberty and property without due process of law contrary to the Fifth Amendment. Petitioners insist that the entire act and the regulations adopted thereunder are valid; that they prescribe lawful rules for the conduct of private foreign language schools necessary for the public welfare; also that, if any provision of the statute transcends the power of the Legislature, it should be disregarded and the remaining ones should be enforced.

If the enactment is subject to the asserted objections it is not here seriously questioned that respondents are entitled to the relief granted.

There are 163 foreign language schools in the territory. Nine are conducted in the [273 U.S. 284, 291]   Korean language, 7 in the Chinese, and the remainder in the Japanese. Respondents are members of numerous voluntary unincorporated associations conducting foreign language schools for instruction of Japanese children. These are owned, maintained and conducted by upwards of 5,000 persons, the property used in connection therewith is worth $250,000, the enrolled pupils number 20,000, and 300 teachers are employed. These schools receive no aid from public funds. All children residing within the territory are required to attend some public or equivalent school, and practically all who go to foreign language schools also attend public or such private schools. It is affirmed by counsel for petitioners that Japanese pupils in the public and equivalent private schools increased from 1,320 in 1900 to 19,354 in 1920, and that out of a total of 65,369 pupils of all races on December 31, 1924, 30,487 were Japanese.

The challenged enactment declares that the term 'foreign language school,' as used therein, 'shall be construed to mean any school which is conducted in any language other than the English language or Hawaiian language, except Sabbath schools.' And, as stated by the Circuit Court of Appeals, the following are its more prominent and questionable features:

[273 U.S. 284, 295]   'The department is authorized to prepare, or cause to be prepared, or procure or arrange for procuring suitable text-books for the teaching of foreign languages in the foreign language schools and to enter into an agreement or agreements for the publishing and sale of the same.

On June 1, 1925, the department of public instruction adopted, and the Governor approved, certain regulations which undertook to limit the pupils who might attend foreign language schools to those who regularly attended some public school or approved private school, or had completed the eighth grade, or were over 14 years of age; also, to designate the text-books which foreign language schools should use in their primary grades.

The affidavit of T. Iwanaga, in support of motion for temporary injunction, states:

An affidavit of the Attorney General describes the litigation which has arisen under the legislation concerning foreign language schools. He does not disavow purpose to enforce all provisions of the challenged act and regulations. An affidavit by the superintendent of public instruction advances the opinion that respondents could pay the prescribed fees, that compliance with the foreign language school laws would not prevent the operation of schools which conduct kindergartens, and that elimination of the kindergartens would not materially affect them. Also he says:

The foregoing statement is enough to show that the School Act and the measures adopted thereunder go far beyond mere regulation of privately supported schools, where children obtain instruction deemed valuable by their parents and which is not obviously in conflict with any public interest. They give affirmative direction concerning the intimate and essential details of such schools, intrust their control to public officers, and deny both owners and patrons reasonable choice and discretion in respect of teachers, curriculum and text-books. Enforcement of the act probably would destroy most, if not all, of them; and, certainly, it would deprive parents of fair opportunity to procure for their children instruction which they think important and we cannot say is harmful. The Japanese parent has the right to direct the education of his own child without unreasonable restrictions; the Constitution protects him as well as those who speak another tongue.

Upon the record and the arguments presented, we cannot undertake to consider the validity of each separate provision of the act and decide whether, dissociated from the others, its enforcement would violate respondents' constitutional rights. Apparently all are parts of a deliberate plan to bring foreign language schools under a strict governmental control for which the record discloses no adequate reason. Here, the enactment has been defended as a whole. No effort has been made to discuss the validity of the several provisions. In the trial court the cause proceeded upon the theory that petitioners intended to enforce all of them.

The general doctrine touching rights guaranteed by the Fourteenth Amendment to owners, parents and children in respect of attendance upon schools has been announced [273 U.S. 284, 299]   in recent opinions. Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1446; Bartels v. Iowa, 262 U.S. 404 , 43 S. Ct. 628; Pierce v. Society of Sisters, 268 U.S. 510 , 45 S. Ct. 571, 39 A. L. R. 468. While that amendment declares that no state shall 'deprive any person of life, liberty, or property, without due process of law,' the inhibition of the Fifth Amendment, 'No person shall ... be deprived of life, liberty, or property, without due process of law,' applies to the federal government and agencies set up by Congress for the government of the territory. Those fundamental rights of the individual which the cited cases declared were protected by the Fourteenth Amendment from infringement by the states, are guaranteed by the Fifth Amendment against action by the territorial Legislature or officers.

We, of course, appreciate the grave problems incident to the large alien population of the Hawaiian Islands. These should be given due weight whenever the validity of any governmental regulation of private schools is under consideration; but the limitations of the Constitution must not be transcended.

It seems proper to add that when petitioners present their answer the issues may become more specific and permit the cause to be dealt with in greater detail.

We find no abuse of the discretion lodged in the trial court. The decree of the Circuit Court of Appeals must be


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