the legal presumption in favor of the legitimacy."

In Illinois Land & Loan Co. v. Bonner (1874) 75 Ill. 315, witnesses were allowed to testify their opinion that a son of an Indian woman had African blood in his veins, the husband being white. The appellate court, without discussing the admissibility of the evidence, expressed the opinion that it was not of sufficient strength to establish illegitimacy.

In a case involving title to land and the legitimacy of a child whose mother and her husband were both white, it has been held that the child may be properly exhibited to the jury to allow them to determine whether it was of mixed blood or not, conflicting testimony of experts having apparently been admitted without objection. Warlick v. White (1877) 76 N. C. 175.

Evidence of a child's color being white and the mother's husband being black appears to have been admitted without question in Woodward v. Blue (1890) 107 N. C. 407, 10 L.R.A. 662, 22 Am. St. Rep. 897, 12 S. E. 453, which was an action by the child to recover possession of land which belonged to the husband, the case turning on recognition of the child as his by the wife's paramour, who was a white man.

In Bullock v. Knox (1892) 96 Ala. 195, 11 So. 339, where a bill in equity by a son of white parents sought to have a mulatto son of his mother declared illegitimate upon the ground that his mother's husband could not have been his father, although the son was apparently born during wedlock, it was held on a demurrer that it was "competent for the complainant to show by proof that it is contrary to the laws of nature for both the parents of a mulatto to be persons of the white race." The court Isaid that no harm could be done in receiving the testimony of scientific experts upon this inquiry, and intimated that it might be justified in recognizing such impossibility as a matter of common knowledge. Reference was made to the development of the law as to presumption of legiti

macy and the admissibility of other evidence than of the husband's impotency and of nonaccess to rebut the presumption, and the court declared: "Finally, the simple rule was recognized that a child is a bastard, though born, or begotten and born, during marriage, when it is impossible that its mother's husband could have been its father; and that every species of legal evidence tending to this conclusion is admissible on the trial of the issue as to its legitimacy."

In affirming a decree of distribution by which twin children who were born more than nine months after the mother's divorce were held to be legitimate, it has been stated as dictum that "it is always permitted to show that it was not possible by the laws of nature for the husband to be the father, as by showing impotency on his part, want of intercourse during the possible period of conception, or that the child is of a race or color such that it could not have been conceived by the husband," although in the case at bar there appeared to be no evidence that the child was of different race or color than its mother's husband. Re Walker (1919) 180 Cal. 478, 181 Pac. 792.

In Pinkard v. Pinkard (1923) Tex. Civ. App. —, 252 S. W. 265, evidence was introduced, in a trial of a suit for partition of land before a judge without a jury, that a child was of a very bright color, its mother and her husband being black. The admissibility of this evidence was apparently not questioned, but, in affirming the judge's decision that the child was legitimate, the court assumed that he disregarded inadmissible evidence as to declarations of the wife and her husband, as well as hearsay and conclusions of other witnesses.

Although not strictly within the scope of this annotation, a colored child has been held to have been properly shown to a jury, as corroborative evidence in a trial of a colored man for adultery with a white woman, whose husband was also white. Miller v. State (1919) 103 Neb. 591, 173 N. W. 577.

But in Foote v. State (1912) 65

L.R.A. (N.S.) 442, 92 N. E. 251, 19 Ann. Cas. 220; Hardwick v. Fruitridge School Dist. 54 Cal. App. 696, 205 Pac. 49.

Mr. E. S. Page, for respondents:

The Bible, in the larger sense, is not a sectarian or a denominational book.

State ex rel. Weiss v. District Bd. 76 Wis. 177, 7 L.R.A. 330, 20 Am. St. Rep. 41, 44 N. W. 967; Church v. Bullock, 104 Tex. 1, 16 L.R.A. (N.S.) 860, 109 S. W. 115; Stevenson v. Hanyon, 7 Pa. Dist. R. 585.

The King James version, being merely a translation of a nonsectarian book, is not a sectarian or a denominational book.

Hackett v. Brooksville Graded School Dist. 120 Ky. 608, 69 L.R.A. 592, 117 Am. St. Rep. 599, 87 S. W. 792, 9 Ann. Cas. 36; Vidal v. Philadelphia, 2 How. 127, 11 L. ed. 205; Moore v. Monroe, 64 Iowa, 367, 52 Am. Rep. 444, 20 N. W. 475; Billard v. Board of Education, 69 Kan. 53, 66 L.R.A. 166, 105 Am. St. Rep. 148, 76 Pac. 422, 2 Ann. Cas. 521; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256; Spiller v. Woburn, 12 Allen, 127; Pfeiffer v. Board of Education, 118 Mich. 560, 42 L.R.A. 536, 77 N. W. 250; State ex rel. Freeman v. Scheve, 65 Neb. 853, 59 L.R.A. 927, 91 N. W. 846, 93 N. W. 169; Nessle v. Hum, 1 Ohio N. P. 140, 2 Ohio S. & C. P. Dec. 60; Church v. Bullock, 104 Tex. 1, 16 L.R.A. (N.S.) 860, 109 S. W. 115, affirming Tex. Civ. App. 100 S. W. 1025.

Per Curiam:

Plaintiff brought this action to enjoin the trustees of the Selma union high school district of Fresno county from carrying into effect a resolution for the purchase of twelve copies of the Bible in the King James version for the library of the high school. George Enos was permitted to intervene, and filed a complaint which alleged substantially the same matters and sought the same relief as that of plaintiff. Both complaints rest on the contention that the King James version of the Bible is a book of a sectarian character, and that its purchase for the library of a public school is therefore contrary to constitutional and statutory provisions in this state.

The trial court held that the Bible in the King James version was not a publication of sectarian, partisan, or denominational character, and accordingly gave judgment for the defendants. This appeal is from that judgment.

The Constitution of this state provides (art. 1, § 4) that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this state." It prohibits (art. 4, § 30) appropriations, grants, or payments of public moneys in aid of any "religious sect, church, creed, or sectarian purpose," or to support or sustain any school or other institution "controlled by any religious creed, church, or sectarian denomination whatever." In § 8 of article 9 it provides that "no public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools; nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this state."

Political Code, § 1607 (subd. 3), as added by Stat. 1917, p. 736, § 6, makes it the duty of the boards of education and school trustees "to exclude from school and school libraries all books, publications, or papers of a sectarian, partisan, or denominational character."

Section 1672 of the same Code provides that "no publication of a sectarian, partisan, or denominational character must be used or distributed in any school, or be made a part of any school library; nor must any sectarian or denominational doctrine be taught therein."

The question before us is differet from those dealt with in the reported cases which consider the question of Bible instruction in the public schools. We have examined with care all decisions cited by counsel, and all that our independent research has discovered, and not

library.

ion, for the reasons School-Bible in hereafter stated, it is clear that for reference and library purposes in the public schools, it is not a book of the class prohibited by our statute.

It will be seen from the provisions of our statutes above quoted that they do not, in terms, exclude from these schools "religious" books as such. Indeed, there is nothing in our statutes aimed at religious works. To be legally objectionable they must be "sectarian, partisan, or denominational in character." It is under our Code provisions that this question immediately arises, and their terms must be construed with their intent and purpose in view and the mischief at which they were aimed. The terms used are "sectarian" and "denominational." "Sect," strictly defined, means "a body of persons distinguished by peculiarities of faith and practice from other bodies adhering to the same general system" (Standard Dict.), and "denominational" is given much the same definition. the term "sect" has frequently a broader signification, the activities of the followers of one faith being regarded as sectarian as related to those of the adherents of another. Since the object of these Code provisions was to exclude controversial matters of any kind from the school

But

libraries, in so far as that object

could be attained by the exclusion of printed matter of partisan tendency, we have no doubt that the term "sectarian" was used in its broad signification. The purpose

was to bar from school libraries books and other publications of factional religion-those whose character is "sectarian, partisan, or denominational." As a book on almost any subject may adopt a partisan tone, so a book on religion, instead of confining itself to broad principles and simple fundamentals, may emphasize particular pointsthose upon which differences of opinion have arisen. In a word, a book on any subject may be strongly partisan in tone and treatment. A religious book treating its subject in this manner would be sectarian. But not all books of religion would be thus excluded. The fact that it was not approved by all sects of a particular religion, or by the followers of all religions, would not class it as sectarian for library purposes. There is no religion that has found universal acceptance, and therefore no book of religion that has.

The correctness of this view of the meaning of these Code sections is indicated by their origin. Since 1851 the statutes of this state have excluded books of a sectarian character from public school libraries. Stat. 1851, pp. 491, 495, art. 3, § 5; Stat. 1852, pp. 117, 125, art. 6, § 3; Stat. 1855, pp. 229, 237, § 33; Stat. 1863, pp. 194, 210, § 67; Stat. 186970, pp. 824, 835, 839, 842, §§ 42, 58, 71. Political Code, § 1607 (3), was derived from § 42 (subd. 11) of the Act of 1870, the language of which shows the class of publications in the mind of the legislature. It required the school authorities to exclude from schools and their libraries "books, tracts, papers or catechisms of a sectarian character." As originally adopted into the Code (Political Code, § 1617, subd. 12, enacted March 12, 1872) this language was shortened to "books, publications, or papers of a sectarian

character." The words "partisan or denominational" were inserted after "sectarian" by Code Amendments 1873-74, p. 81, and its present number (1607) was given the

section by an amendment in 1917 (Stat. 1917, p. 736).

Political Code, § 1672, which has remained the same since its adoption in 1872, was derived from § 58 of the same Act of 1870, which referred to "books, tracts, papers, catechisms, or other publications of a sectarian or denominational character." Thus, we think the history of these sections indicates the class of "books" and "other publications" at which the statute was aimed.

Turning to the character of the King James version, it appears that the original manuscripts of the Bible have been lost for centuries. Those available for translation are themselves "versions," and either copies or translations of still older texts. There have been numerous English translations, but those most generally in use to-day are the King James version and its subsequent English and American revisions, and the Douai version.

The Douai version consists of a translation of the New Testament made in the English College at Rheims, published there in 1582, and of the Old Testament published at Douai in 1609.

The King James version is a translation made at the direction of James I. of England, and published at London in 1611. The work was done by a commission of forty-seven scholars drawn largely from the universities of Oxford and Cambridge. The work of its revision by English and American committees was begun in 1870, and the revised New Testament published in 1881, and the revised Old Testament in 1884.

The Douai version is based upon the text of the Latin Vulgate, the King James version on the Hebrew and Greek texts. There are variances in the rendering of certain phrases and passages. The Douai version incorporates the Apocrypha, which are omitted from the texts of the Testaments in the King James version, though in many editions they have been printed between the two Testaments. The

Douai version was the work of Catholics, and is the translation used by the Roman Catholic Church in English-speaking countries. The King James version and its revisions are the work of Protestants, and are used in Protestant churches.

The contention that the Bible in the King James translation is a book of a sectarian character rests on the fact that there are differences between it and, among others, the Douai version; that it is of Protestant authorship; that it is used in Protestant churches; and that it is not approved by the Catholic Church. According to such a test the Bible in any known version or text is sectarian. In fact, until all sects can agree upon the manuscript texts that should be used, no English version of the Bible not "sectarian" in this view can be produced.

The statute, however, deals with publications of a sectarian character. It makes the character of the book the test of whether it is "sectarian," not the authorship or the extent of its approval by different sects or by all. That the authors of religious books belong to a sect or church does not necessarily make their books of a sectarian character. Nor does the fact that the King James version is commonly used by Protestant churches and not by Catholics make its character sectarian. Its character is what it is, a widely accepted translation of the Bible. What we have said of the King James translation is equally applicable to the Douai version. Both are scholarly translations of the Bible, and neither is a book "of a sectarian character" within the meaning of the statute relating to school libraries. Both are eligible to a place on the shelves of our public school libraries for reference purposes. Each version has claims. Regarded merely as literature, the King James version is a recognized classic. For centuries it has been the version most generally used in Protestant churches in England and America. The Douai version has merits of its own. It is the text ap