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the legal presumption in favor of the macy and the admissibility of other legitimacy."
evidence than of the husband's imIn Illinois Land & Loan Co. v. potency and of nonaccess to rebut the Bonner (1874) 75 Ill. 315, witnesses presumption, and the court declared: were allowed to testify their opinion “Finally, the simple rule was recogthat a son of an Indian woman had nized that a child is a bastard, though African blood in his veins, the hus- born, or begotten and born, during band being white. The appellate marriage, when it is impossible that court, without discussing the admis- its mother's husband could have been sibility of the evidence, expressed the its father; and that every species of opinion that it was not of sufficient legal evidence tending to this conclustrength to establish illegitimacy. sion is admissible on the trial of the
In a case involving title to land and issue as to its legitimacy." the legitimacy of a child whose In affirming a decree of distribution mother and her husband were both by which twin children who were white, it has been held that the child born more than nine months after may be properly exhibited to the jury the mother's divorce were held to be to allow them to determine whether legitimate, it has been stated as dicit was of mixed blood or not, conflict- tum that "it is always permitted to ing testimony of experts having ap- show that it was not possible by the parently been admitted without objec- laws of nature for the husband to be tion. Warlick v. White (1877) 76 the father, as by showing impotency N. C. 175.
on his part, want of intercourse Evidence of a child's color being during the possible period of concepwhite and the mother's husband being tion, or that the child is of a race or black appears to have been admitted color such that it could not have been without question in Woodward v. Blue conceived by the husband," although (1890) 107 N. C. 407, 10 L.R.A. 662, in the case at bar there appeared to 22 Am. St. Rep. 897, 12 S. E. 453, be no evidence that the child was of which was an action by the child to different race or color than its mothrecover possession of land which be- er's husband. Re Walker (1919) 180 longed to the husband, the case turn- Cal. 478, 181 Pac. 792. ing on recognition of the child as his In Pinkard v. Pinkard (1923) by the wife's paramour, who was a Tex. Civ. App. -, 252 S. W. 265, eviwhite man.
de ce was introduced, in a trial of a In Bullock v. Knox (1892) 96 Ala. suit for partition of land before a 195, 11 So. 339, where a bill in equity judge without a jury, that a child was by a son of white parents sought to of a very bright color, its mother and have a mulatto son of his mother her husband being black. The admisdeclared illegitimate upon the ground sibility of this evidence was apparentthat his mother's husband could not ly not questioned, but, in affirming have been his father, although the the judge's decision that the child was son was apparently born during wed- legitimate, the court assumed that he lock, it was held on a demurrer that disregarded inadmissible evidence it was "competent for the complain- as to declarations of the wife and ant to show by proof that it is con- her husband, as well as hearsay and trary to the laws of nature for both conclusions of other witnesses. the parents of a mulatto to be per- Although not strictly within the sons of the white race.” The court scope of this annotation, a colored said that no harm could be done in child has been held to have been receiving the testimony of scientific properly shown to a jury, as corroboexperts upon this inquiry, and inti- rative evidence in a trial of a colored mated that it might be justified in man for adultery with a white woman, recognizing such impossibility as a whose husband was also white. Mil. matter of common knowledge. Ref. ler v. State (1919) 103 Neb. 591, 173 erence was made to the development N. W. 577. of the law as to presumption of legiti- But in Foote v. State (1912) 65
Tex. Crim. Rep. 368, 144 S. W. 275, missible. In the Foote Case the apAnn. Cas. 1916A, 1184, an incest case, pellate court observed that the trial where the accused sought to show judge stated that he admitted all that his alleged niece, with whom evidence tending to show “want of the offense was alleged to have been access," and it could not say that he committed, was illegitimate, evidence erred in holding that the paternity that she black, as
her of the child could not otherwise be mother, has been held to have been impeached; and, in discussing the properly excluded, although the lat- admissibility of testimony of one ter's husband appeared to be "ginger other than the mother's husband as cake,” nonaccess not being shown. to intercourse with her, the court The court cited Illinois Land & Loan apparently took the position that the Co. v. Bonner (ill.) supra, as holding only testimony to prove illegitimacy the evidence inadmissible to overcome is that the husband was impotent the presumption. As previously in- or absent from home in such circumdicated, however, the court in that stances as to render it impossible for case merely held that the evidence him to have been the father. was insufficient, not that it was inad
E. W. H.
ELBERT L. EVANS, Appt.,
V. SELMA UNION HIGH SCHOOL DISTRICT of Fresno County et al.,
California Supreme Court (In Banc) - January 24, 1924.
School — Bible in library.
The King James version of the Bible is not within the operation of a statute providing that no publication of a sectarian, partisan, or denominational character shall be made part of a school library.
[See note on this question beginning on page 1125.]
APPEAL by plaintiff and intervener from a judgment of the Superior Court for Fresno County. (Strother, J.) in favor of defendants in an action brought to enjoin the defendant trustees from carrying into effect a resolution for the purchase of copies of the Bible in the King James version for the high school library. Affirmed.
The facts are stated in the opinion of the court.
Messrs. Drew & Drew and Collins Messrs. James Gallagher and H. L. & Saylor, for appellant Evans:
Meyers, for appellant Enos: The Bible is a sectarian book, and The King James version of the Bible the expenditure of school money for is sectarian. the same is contrary to the law of Knowlton v. Baumhover, 182 Iowa, this state.
691, 5 A.L.R. 841, 166 N. W. 207; Board State ex rel. Weiss v. District Bd. of Education v. Minor, 23 Ohio St. 76 Wis. 177, 7 L.R.A. 330, 20 Am. St. 211, 13 Am. Rep. 233; State ex rel. Rep. 41, 44 N. W. 967; People ex rel. Dearle v. Frazier, 102 Wash. 369, Ring v. Board of Education, 245 Ill. L.R.A.1918F, 1056, 173 Pac. 35; State 334, 29 L.R.A.(N.S.) 442, 92 N. E. 251, ex rel. Weiss v. District Bd. 76 Wis. 19 Ann. Cas. 220; Knowlton v. Baum- 177, 7 L.R.A. 330, 20 Am. St. Rep. 41. hover, 182 Iowa, 691, 5 A.L.R. 841, 166 44 N. W. 967; People ex rel. Ring v. N. W. 202.
Board of Education, 245 Ill. 334, 29 31 A.L.R.-71.
L.R.A. (N.S.) 442, 92 N. E. 251, 19 The trial court held that the Bible Ann. Cas. 220; Hardwick v. Fruitridge in the King James version was not School Dist. 54 Cal. App. 696, 205 Pac. a publication of sectarian, partisan, 49.
or denominational character, and Mr. E. S. Page, for respondents:
accordingly gave judgment for the The Bible, in the larger sense, is
defendants. This appeal is from not a sectarian or a denominational
that judgment. book.
State ex rel. Weiss v. District Bd. The Constitution of this state 76 Wis. 177, 7 L.R.A. 330, 20 Am. St. provides (art. 1, $ 4) that "the free Rep. 41, 44 N. W. 967; Church v. Bul- exercise and enjoyment of religious lock, 104 Tex. 1, 16 L.R.A.(N.S.) 860, profession and worshipwithout 109 S. W. 115; Stevenson v. Hanyon, discrimination or preference, shall 7 Pa. Dist. R. 585.
forever be guaranteed in this state." The King James version, being
It prohibits (art. 4, § 30) appromerely a translation of a nonsectarian book, is not a sectarian or a
priations, grants, or payments of denominational book.
public moneys in aid of any “reliHackett v. Brooksville Graded School
gious sect, church, creed, or sectaDist. 120 Ky. 608, 69 L.R.A. 592, 117 rian purpose,” or to support or susAm. St. Rep. 599, 87 S. W. 792, 9 Ann. tain any school or other institution Cas. 36; Vidal v. Philadelphia, 2 How. "controlled by any religious creed, 127, 11 L. ed. 205; Moore v. Monroe, church, or sectarian denomination 64 Iowa, 367, 52 Am. Rep. 444, 20 N.
whatever.” In § 8 of article 9 it W. 475; Billard v. Board of Education,
provides that "no public money shall 69 Kan. 53, 66 L.R.A. 166, 105 Am. St. Rep. 148, 76 Pac, 422, 2 Ann. Cas. 521;
ever be appropriated for the supDonahoe v. Richards, 38 Me. 379, 61
port of any sectarian or denominaAm. Dec. 256; Spiller v. Woburn, 12
tional school, or any school not unAllen, 127; Pfeiffer v. Board of Edu- der the exclusive control of the offication, 118 Mich. 560, 42 L.R.A. 536, cers of the public schools; nor shall 77 N. W. 250; State ex rel. Freeman any sectarian or denominational v. Scheve, 65 Neb. 853, 59 L.R.A. 927, doctrine be taught, or instruction 91 N. W. 846, 93 N. W. 169; Nessle v. thereon be permitted, directly or inHum, 1 Ohio N. P. 140, 2 Ohio S. &
directly, in any of the common C. P. Dec. 60; Church v. Bullock, 104
schools of this state." Tex. 1, 16 L.R.A.(N.S.) 860, 109 S. W. 115, affirming Tex. Civ. App. -,
Political Code, § 1607 (subd. 3), 100 S. W. 1025.
as added by Stat. 1917, p. 736, § 6,
makes it the duty of the boards of Per Curiam:
education and school trustees "to Plaintiff brought this action to
exclude from school and school lienjoin the trustees of the Selma
braries all books, publications, or union high school district of Fresno
papers of a sectarian, partisan, or county from carrying into effect a
denominational character." resolution for the purchase of
Section 1672 of the same Code twelve copies of the Bible in the
provides that "no publication of a King James version for the library
sectarian, partisan, or denominaof the high school. George Enos
tional character must be used or diswas permitted to intervene, and filed
tributed in any school, or be made a a complaint which alleged substantially the same matters and sought any sectarian or denominational
part of any school library; nor must the same relief as that of plaintiff.
doctrine be taught therein." Both complaints rest on the conten
The question before us is differtion that the King James version of
et from those dealt with in the rethe Bible is a book of a sectarian
ported cases which consider the character, and that its purchase for question of Bible instruction in the the library of a public school is
public schools. We have examined therefore contrary to constitutional with care all decisions cited by and statutory provisions in this counsel, and all that our independstate.
ent research has discovered, and not
School-Bible in library.
(- Cal. —, 222 Pac. 801.) one of them deals with the precise was to bar from school libraries question now under consideration, books and other publications of facnamely, the placing of the Bible in tional religion-those whose chara public school library. These deci- acter is "sectarian, partisan, or sions all deal with questions grow- denominational." As a book on aling out of the use of the Bible in most any subject may adopt a partidevotional exercises, or for religious san tone, so a book on religion, ininstruction, or as a textbook in the stead of confining itself to broad public schools; for that reason we principles and simple fundamentals, do not discuss these decisions in de- may emphasize particular pointstail in arriving at our conclusion, those upon which differences of although some of these decisions opinion have arisen. In a word, a consider and decide whether or not book on any subject may be strongthe Bible is sectarian. In our opin- ly partisan in tone and treatment.
ion, for the reasons A religious book treating its subject hereafter stated, it in this manner would be sectarian.
is clear that for ref- But not all books of religion would erence and library purposes in the be thus excluded. The fact that it public schools, it is not a book of the was not approved by all sects of a class prohibited by our statute. particular religion, or by the fol
It will be seen from the provisions lowers of all religions, would not of our statutes above quoted that class it as sectarian for library purthey do not, in terms, exclude from poses. There is no religion that has these schools "religious' books as found universal acceptance, and such. Indeed, there is nothing in therefore no book of religion that our statutes aimed at religious has. works. To be legally objectionable The correctness of this view of they must be "sectarian, partisan, the meaning of these Code sections or denominational in character." It is indicated by their origin. Since is under our Code provisions that 1851 the statutes of this state have this question immediately arises, excluded books of a sectarian charand their terms must be construed acter from public school libraries. with their intent and purpose in Stat. 1851, pp. 491, 495, art. 3, § 5; view and the mischief at which Stat. 1852, pp. 117, 125, art. 6, § 3; they were aimed. The terms used Stat. 1855, pp. 229, 237, § 33; Stat. are “sectarian" and "denomination- 1863, pp. 194, 210, § 67; Stat. 1869– al." "Sect," strictly defined, means 70, pp. 824, 835, 839, 842, SS 42, 58, "a body of persons distinguished by 71. Political Code, $ 1607 (3), was peculiarities of faith and practice derived from $ 42 (subd. 11) of the from other bodies adhering to the Act of 1870, the language of which same general system” (Standard shows the class of publications in Dict.), and “denominational” is giv- the mind of the legislature. It reen much the same definition. But quired the school authorities to exthe term "sect" has frequently a clude from schools and their librabroader signification, the activities ries "books, tracts, papers or cateof the followers of one faith being chisms of a sectarian character.” regarded as sectarian as related to
As originally adopted into the Code those of the adherents of another.
(Political Code, $ 1617, subd. 12, Since the object of these Code pro
enacted March 12, 1872) this lanvisions was to exclude controversial of
guage was shortened to "books, publibraries, in so far as that object lications, or papers of a sectarian could be attained by the exclusion
character." The words "partisan of printed matter of partisan tend
or denominational” were inserted ency, we have no doubt that the after “sectarian" by Code Amendterm "sectarian" was used in its ments 1873-74, p. 81, and its presbroad signification.
ent number (1607) was given the section by an amendment in 1917 Douai version was the work of (Stat. 1917, p. 736).
Catholics, and is the translation Political Code, $ 1672, which has used by the Roman Catholic Church remained the same since its adop- in English-speaking countries. The tion in 1872, was derived from g 58 King James version and its reviof the same Act of 1870, which re- sions are the work of Protestants, ferred to "books, tracts, papers, and are used in Protestant churches. catechisms, or other publications of The contention that the Bible in a sectarian or denominational char- the King James translation is a acter.” Thus, we think the history book of a sectarian character rests of these sections indicates the class on the fact that there are differences of "books" and "other publications" between it and, among others, the at which the statute was aimed. Douai version; that it is of Protes
Turning to the character of the tant authorship; that it is used in King James version, it appears that Protestant churches; and that it is the original manuscripts of the not approved by the Catholic Bible have been lost for centuries. Church. According to such a test Those available for translation are the Bible in any known version or themselves “versions,” and either text is sectarian. In fact, until all copies or translations of still older sects can agree upon the manuscript texts. There have been numerous texts that should be used, no EngEnglish translations, but those most lish version of the Bible not "sectagenerally in use to-day are the King rian" in this view can be produced. James version and its subsequent The statute, however, deals with English and American revisions, publications of a sectarian characand the Douai version.
ter. It makes the character of the The Douai version consists of a book the test of whether it is "sectranslation of the New Testament tarian," not the authorship or the made in the English College at extent of its approval by different Rheims, published there in 1582, sects or by all. That the authors and of the Old Testament published of religious books belong to a sect at Douai in 1609.
or church does not necessarily make The King James version is a their books of a sectarian character. translation made at the direction of Nor does the fact that the King James I. of England, and published James version is commonly used by at London in 1611. The work was Protestant churches and not by done by a commission of forty-seven Catholics make its character sectascholars drawn largely from the rian. Its character is what it is, a universities of Oxford and Cam- widely accepted translation of the bridge. The work of its revision by Bible. What we have said of the English and American committees King James translation is equally was begun in 1870, and the revised applicable to the Douai version. New Testament published in 1881, Both are scholarly translations of and the revised Old Testament in the Bible, and neither is a book "of 1884.
a sectarian character" within the The Douai version is based upon meaning of the statute relating to the text of the Latin Vulgate, the school libraries. Both are eligible King James version on the Hebrew to a place on the shelves of our puband Greek texts. There are vari- lic school libraries for reference ances in the rendering of certain purposes. Each version has claims. phrases and passages. The Douai "Regarded merely as literature, the version incorporates the Apocrypha, King James version is a recognized which are omitted from the texts classic. For centuries it has been of the Testaments in the King the version most generally used in James version, though in many edi- Protestant churches in England and tions they have been printed be- America. The Douai version has tween the two Testaments. The merits of its own. It is the text ap