Dill v. Hamilton ( 1940 )

Rose, J.

Under the declaratory judgment act, plaintiffs, alleging they are officers or members and communicants of the Spiritualist Church, applied to the district court for Fillmore county for a judgment declaring their right to worship God according to their religious beliefs, tenets of faith, ceremonies and rituals, including spiritualistic seances, and also declaring the law to be such as to prevent defendants, who are prosecuting, executive and judicial officers, from interfering with the religious freedom and the devotional exercises of plaintiffs.

The petition contains allegations disclosing incorporation of the Spiritualist Church, its membership, tenets of religious faith, ceremonies and rituals, interference therewith by defendants and threats of future prosecutions for violations of the statute forbidding public exhibitions of religious seances for gain.

Defendants assailed the petition by demurrer which was sustained, by the district court and the proceeding dismissed. Plaintiffs appealed.

. The demurrer challenges the sufficiency of the petition to state a justiciable case for a declaratory judgment. The determination of the issue thus raised depends on the power conferred upon the courts by the declaratory-judgment act, on the meaning and validity of the act to prohibit all public exhibitions of psychical forces or seances conducted by a spiritualistic medium for gain, and on the allegations of the petition. Declaratory judgments are authorized by the following provisions of statute:

“The supreme court and courts of general chancery and common-law jurisdiction shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” Laws 1929, ch. 75, sec. 1; Comp. St. 1929, sec. 20-21,140.

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.” Laws 1929, ch. 75, sec. 2; Comp. St. 1929, sec. 20-21,141.

“The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Laws 1929, ch. 75, sec. 6; Comp. St. 1929, sec. 20-21,145.

The statute under which the present controversy arose provides:

“Any person or persons who shall hereafter take part in, practice, assist, or become a subject in giving a public, open exhibition or seance or show of hypnotism, mesmerism, animal magnetism or so-called psychical forces for gain shall be deemed guilty of a misdemeanor.” Laws 1911, ch. 182, sec. 1; Comp. St. 1929, sec. 28-1111.

Violations of the act subjects the violators upon conviction to fine or imprisonment or both. Plaintiffs allege and contend that they are threatened by defendants with prosecutions for conducting spiritualistic seances as religious exercises authorized by their established mode of worship, that defendants construe the act to authorize such prosecutions, and that so construed it is unconstitutional. The petition alleges further than John Wilbert Dill, one of the plaintiffs, is an ordained spiritualistic medium and minister of the Gospel; that he was formerly prosecuted, convicted and fined for alleged violation of the penal statute quoted and paid the fine to avoid imprisonment. Other members of the church are also plaintiffs herein, but no attempt is now made to substitute this proceeding fqr a new trial in the criminal prosecution or for an appeal or for another action. The former prosecution of Dill is not material to the proceeding at bar except perhaps to indicate a controversy and the necessity for a declaratory judgment. The relief grantable in a proceeding for a declaratory judgement extends by the very terms of the legislative act to the construction or validity of a' statute, where there is a justiciable, determinable controversy between the parties in respect to “rights, status or other legal relations thereunder.” Plaintiffs, seeking a declaratory judgment, are not required in advance to violate a penal statute as a condition of having it construed or its validity determined. “Declaratory judgment proceedings,” says a text, “have frequently been employed to determine questions as to the construction or validity of statutes.” 16 Am. Jur. 296, sec. 24. Another writer on the same subject, citing cases, says:

“The danger of a criminal penalty attached by law to the performance of an act affords those affected the necessary legal interest in a judgment raising the issue of validity, immunity, or status.” Borchard, Declaratory Judgments, p. 47.

The supreme court of Nebraska by unanimous opinion adopted the following views expressed by the supreme court of Kansas:

“It is hardly conceivable that any fundamental principle of our government, beyond legislative control, prevents two disputants, each of whom sincerely believes in the rightfulness of his own claim, but each of whom wishes to abide by the law whatever it may be determined to be, from obtaining an adjudication of their controversy in the courts without one or the other first doing something that is illegal (in the case of the present defendant criminal) if he is mistaken in his view of the law.” Lynn v. Kearney County, 121 Neb. 122, 236 N. W. 192; State v. Grove, 109 Kan. 619, 201 Pac. 82.

Jurisdiction of a court to render a declaratory judgment is not, therefore, lacking merely because the construction or validity of a penal statute is necessary to a decision. In view of the conclusions of law reached in connection with the facts stated in the petition and admitted by the demurrer, the petition is not demurrable. The ruling below to the contrary is erroneous.

Does the act prohibiting “all public exhibitions of hypnotism, mesmerism, animal magnetism, or so-called psychical forces, for gain,” deprive plaintiffs of religious rights guaranteed by the federal and state Constitutions? The language quoted is from the title of the act and is not legislation but indicates the subject of legislation. Alleged illegal interference with religious seances conducted by a spiritualistic medium is the subject of controversy. The prohibitions of the act itself are in this form:

“Any person or persons who shall hereafter take part in, practice, assist, or become a subject in giving a public, open exhibition or seance or show of hypnotism, mesmerism, animal magnetism or so-called psychical forces for gain shall be deemed guilty of a misdemeanor.” Laws 1911, ch. 182, sec. 1.

Plaintiffs allege in substance that defendants so construe the act “as to deprive the plaintiffs as members and officers of the Spiritualistic Church of their constitutional rights to freedom of religious worship;” that the Spiritualist Church is a religious society organized, existing and doing business for sectarian and religious worship of Almighty God in accordance with the divine word of the Holy Bible; that seances are among the rites and ceremonies of the Spiritualist Church; that one form of worship is designated by the ordinance and canons of the church as a “seance;” that “A medium is one whose organism is sensitive to vibration from the spirit world and through whose instrumentality intelligences in that world are able to convey messages and produce the phenomena of spiritualismthat a seance constitutes one of the most formal and solemn religious services of the Spiritualist Church; that the remuneration of a spiritualistic medium for conducting a religious seance was the authorized, guaranteed, fixed sum of $15 to be raised by voluntary contributions of local communicants in attendance at religious meetings.

A statute authorizing imprisonment for violations of its provisions imposes no restrictions on conduct except those specifically enumerated in the legislative act. The act to prohibit “all public, exhibitions of hypnotism, mesmerism, animal magnetism, or so-called psychical forces, for gain,” does not prohibit spiritualistic seances, unless they are public and open and for gain. Laws 1911, ch. 182, sec. 1 ; Comp. St. 1929, sec. 28-1111. The words “psychical forces” as used by the lawmakers apply to a seance conducted by a spiritualistic medium, but his act as such does not violate the statute unless it is “public” and “open” and “for gain.” Spiritualistic seances are not of themselves denounced by the lawmakers as criminal. The making of a public exhibition of religious worship in the form of a seance for gain on the stage or at a carnival, fair, circus, or show is not a religious liberty guaranteed by the Constitution. The police power to prohibit public exhibitions for money-making purposes or “for gain” extends to harmful, immoral, or indecent performances, though conducted in the name of religion. These are evils against which the statute is directed. Persons or members of any organization or society committing such offenses are amenable to the law and subject to prosecution and punishment. Plaintiffs, however, disavow any intention to commit such offenses. The act to prohibit “all public exhibitions of hypnotism, mesmerism, animal magnetism, or so-called psychical forces, for gain,” does not prohibit spiritualistic seances, unless they are public and open and for gain. Laws 1911, ch. 182, sec. 1; Comp. St. 1929, sec. 28-1111. The statute as herein construed is a valid exercise of police power.

With the truth of the allegations of the petition admitted by the demurrer, a guaranty of $15 to remunerate a medium for conducting a spiritualistic seance as a religious ceremony in the worship of God and the creation of the fund by voluntary contributions of communicants of the Spiritualist Church do not amount to “gain” or a violation of law within the meaning of the statute forbidding public seances for gain.

The district court erred in sustaining the demurrer and in dismissing the proceeding, and for those errors the judgment is reversed. Defendants, however, are permitted to plead further, if so advised, but if they fail to do so, the district court, in that event, is instructed to enter a declaratory judgment conforming to the views herein expressed.

Reversed.