U.S. Supreme Court HAMILTON v. REGENTS OF THE UNIVERSITY OF CALIF., 293 U.S. 245 (1934)

[Page 293 U.S. 245, 254]

University, but with leave to apply for readmission at any time conditioned upon their ability and willingness to comply with all applicable regulations of the University governing the matriculation and attendance of students. The University affords opportunity for education such as may not be had at any other institution in California except at a greater cost which these minors are not able to pay. And they, as appellees at the time of their suspension well knew, are willing to take as a substitute for military training such other courses as may be prescribed by the University.

Other allegations of the petition need not be stated, as they merely go to show the grounds upon which appellants under the state practice sought the writ of mandate.

The University is a land grant college. An act of Congress (Morrill Act approved July 2, 1862, 12 Stat. 503, 7 U.S.C. 301-308 (7 USCA 301-308)) donated public lands to the several states in order that upon the conditions specified all moneys derived from the sale of such lands or from the sale of land scrip issued under the act should be invested and constitute a perpetual fund the interest of which should be inviolably appropriated by each state accepting the benefits of the act 'to the endowment, support, and maintenance of at least one college where the leading object shall be, without excluding other scientific and classical studies and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.' [Footnote 1]

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277, 242 P. 892. The assailed order prescribes a rule of conduct, and applies to all students belonging to the defined class. And it was because of its violation that the regents by resolution suspended these students. The meaning of 'statute of any state' is not limited to acts of state Legislatures. It is used to include every act legislative in character to which the state gives sanction, no distinction being made between acts of the state Legislature and other exertions of the state lawmaking power. King Mfg. Co. v. Augusta, 277 U.S. 100, 48 S.Ct. 489; Sultan Ry. & Timber Co. v. Dept. of Labor and Industries, 277 U.S. 135, 48 S.Ct. 505. It follows that the order making military instruction compulsory is a statute of the state within the meaning of section 237(a), 28 USCA 344(a).

And the appellees insist that this appeal should be dismissed for the want of a substantial federal question. But that contention cannot be sustained, for we are unable to say that every question that appellants have brought here for decision is so clearly not debatable and utterly lacking in merit as to require dismissal for want of substance. [Footnote 2]

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to determine for itself the branches of military training to be provided, the content of the instruction to be given, and the objectives to be attained. That state-as did each of the other states of the Union-for the proper discharge of its obligations as beneficiary of the grant made the course in military instruction compulsory upon students. Recently Wisconsin and Minnesota have made it elective. [Footnote 3] The question whether the state has bound itself to require students to take the training is not here involved. The validity of the challenged order does not depend upon the terms of the land grant.

The petition is not to be understood as showing that students required by the regents' order to take the prescribed course thereby serve in the Army or in any sense become a part of the military establishment of the United States. Nor is the allegation that the courses are prescribed by the War Department to be taken literally. We take judicial notice of the long-established voluntary co-operation between federal and state authorities in respect of the military instruction given in the land grant colleges. [Footnote 4] The War Department has not been empowered

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thing inconsistent with the moral claims of an objector, still less with his constitutional immunities, in coupling the exemption with these collateral conditions.

Manifestly a different doctrine would carry us to lengths that have never yet been dreamed of. The conscientious objector, if his liberties were to be thus extended, might refuse to contribute taxes in furtherance of a war, whether for attack or for defense, or in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle-which may turn out in the end to be a delusion or an error-does not prove by his martyrdom that he has kept within the law.

I am authorized to state that Mr. Justice BRANDEIS and Mr. Justice STONE join in this opinion. Footnotes

[Footnote *] Rehearing denied 293 U.S. 633, 55 S.Ct. 345, 79 L.Ed. --.

Footnote 1 The quoted language, section 4, has been twice re-enacted. See Act of March 3, 1883, 22 Stat. 484 and Act of April 13, 1926, 44 Stat. 247 (7 USCA 304).

Morrill Act land grant colleges have been given federal aid under the following Acts: March 2, 1887, 24 Stat. 440 (7 USCA 362, 363, 365, 368, 377-379); August 30, 1890, 26 Stat. 417 (7 USCA 321-328); March 16, 1906, 34 Stat. 63; March 4, 1907, 34 Stat. 1256, 1281 (7 USCA 322); May 8, 1914, 38 Stat. 372 (7 USCA 341-348); February 24, 1925, 43 Stat. 970 ( 7 USCA 361, 366, 370 et seq., 380, 382); May 22, 1928, 45 Stat. 711 (7 USCA 343a, 343b). And see Acts of February 23, 1917, 39 Stat. 929 (20 USCA 11-28); June 7, 1924, 43 Stat. 653 (16 USCA 471, 499 note, 505, 515, 564-570); February 9, 1927, 44 Stat. 1065 (7 USCA 146).

Footnote 2 Micas v. Williams, ; Wabash R.R. Co. v. Flannigan, 192 U.S. 29, 38, 24 S.Ct. 224; Deming v. Carlisle Packing Co., 226 U.S. 102, 105, 107 S., 33 S.Ct. 80; Erie Railroad v. Solomon, , 35 S.Ct. 648; Chi., Rock Island & P.R.R. v. Devine, 239 U.S. 52, 54, 36 S.Ct. 27; Sugarman v. United States, , 39 S.Ct. 191; Quong Ham Wah Co. v. Industrial Accident Comm., 255 U.S. 445, 448, 449 S., 41 S.Ct. 373; Zucht v. King, 260 U.S. 174, 176, 43 S.Ct. 24; Roe v. Kansas, , 49 S.Ct. 160; Seaboard Air Line Ry. v. Watson, 287 U.S. 86, 92, 53 S.Ct. 32, 86 A.L.R. 174.

Footnote 3 Each state has a land grant college; Massachusetts has two. In 1923 Wisconsin made the course elective. Wis. Laws 1923, c. 226. On the argument of this case, appellants' counsel stated that Minnesota has recently made the course elective. Circular 126, Preliminary Report, Land- Grant Colleges and Universities, 1933, Department of Interior, Office of Education.

Footnote 4 Sections 40-47 of National Defense Act of June 3, 1916, 39 Stat. 166, 191-192, as amended by sections 33 and 34 of Act of June 4, 1920, 41 Stat. 759, 776, 777, Act of June 5, 1920, 41 Stat. 948, 967, and Act of May 12, 1928, 45 Stat. 501. 10 U.S.C. 381-390 (10 USCA 381-390); Army Regulations No. 145-10, II, pars. 10 and 11.

Cf. Acts of July 28, 1866, 26, 14 Stat. 332, 336, and of May 4, 1870, 16 Stat. 373 (34 USCA 1129); Rev. St. 1225, as amended July 5, 1884, 23 Stat. 107, 108, September 26, 1888, 25 Stat. 491, and January 13, 1891, 26 Stat. 716 (34 USCA 1129); November 3, 1893, 28 Stat. 7; February 26, 1901, 31 Stat. 810; April 21, 1904, 33 Stat. 225 (34 USCA 1130); June 3, 1916, 39 Stat. 166, 197, 56 amended by June 4, 1920, 41 Stat. 759, 780 (10 USCA 1180, 1181).

[Footnote *] As to the duty of the able-bodied citizen to aid in suppressing crime, see Matter of Babington v. Yellow Taxi Corp., 250 N.Y. 14, 16, 164 N.E. 726, 61 A.L.R. 1354, and the authorities there assembled.