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[Cite as Hamilton v. Regents, 293 U.S. 245 (1934). NOTE: This decision concerns conscientious objections to federally mandated State military training in universities. Appellant argued compulsory service violates Fourteenth Amendment and refered to United States v. Cruikshank, 92 U.S. 542 which found the right to arms to be an individual right. (P. 247) In support of the State, the Court refered to the Second Amendment saying, "So long as [the state's] action is within retained powers and not inconsistent with any exertion of the authority of the national government, and trangresses no right safeguarded to the citizen by the Federal Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment. ..." (P. 260) Oddly, if this decision supports the proposition that the right is a state's right and not individual, it is a rather unusual definition of a "right" that must be "not inconsistent with any exertion of the authority of the national government" which government presumably the right is in opposition to. This interpretation is also at odds with numerous other decisions in which the Second Amendment is spoken of in the same terms as other rights which have never been considered anything other than individual. (See as early as Dred Scott 60 U.S. 393, 417, 450-451 (1857), and as late as Casey, 505 U.S. 833, 848-849 (1992).) The earliest mention of the Second Amendment similarly involved a state's power over militia--but spoke of the right to arms in terms that it "may not, perhaps, be thought to have any important bearing on this point." Houston, 18 U.S. (5 Wheat.) 1, 52-53 (1820).]

HAMILTON et al. v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.

APPEAL FROM THE SUPREME COURT OF CALIFORNIA.

No. 55. Argued October 17, 18, 1934.--Decided December 3, 1934.

1. An order of the Regents of the University of California requiring every abled-bodied male student who, at the time of his matriculation, is under the age of twenty-four years, and who has not attained full academic standing as a junior student, to enroll in and complete a course in military science and tactics, held a statute of a State, within the meaning of Jud. Code, 237 (a), in view of the relation of the University to the state government and the legislative powers conferred upon the Regents by the state constitution in respect of the organization and government of the University. P. 257.

2. An appeal will not be dismissed for want of a substantial federal question unless the federal questions presented are clearly not debatable and utterly lacking in merit. P. 258.

3. A State, by accepting the benefits of the Act of July 2, 1862, for the endowment, maintenance and support of a "land grant" college, becomes bound, as one of the conditions of the grant, to offer the students at such college instruction in military tactics, but remains free to determine the branches of military training to be offered, the content of the instruction, and the objects to be attained; whether the State becomes bound to require the students to take the training is a question not involved in the present case. P. 258.

4. Judicial notice is taken of the long-established voluntary cooperation between federal and state authorities in respect of the military instruction given in the land grant colleges. P. 259.

5. The War Department has not been empowered to prescribe the military instruction in these institutions. P. 259.

6. Each State has authority to train its able-bodied male citizens of suitable age to fit them, if called upon, for service in the United States Army, the state militia, or the local constabulary or police; and for these purposes it may, with the permission of the National Government, avail itself of the services of officers and the use of equipment belonging to the military establishment of the United States, P. 260.(p.246)

7. And while so acting within its retained powers, and consistently with exertion of national power and with rights of individuals safeguarded by the National Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted. P. 260.

8. The "privileges and immunities" protected by the Fourteenth Amendment are those that belong to the citizens of the United States as distinguished from citizens of the States--those that arise from the Constitution and laws of the United States as contrasted with those that spring from other sources. P. 261.

9. If the refusal by a State to allow its citizen to exercise the privilege of attending the States university, except upon condition that he take military training, to which he objects on religious and conscientious grounds, is not repugnant to the due process clause of the Fourteenth Amendment as an undue deprivation of liberty, it does not violate the privileges and immunities clause. P. 261.

10. The liberty guaranteed by the Fourteenth Amendment does not confer upon a conscientious and religious objector to war and military training the right to attend a state university without taking a course in military training required by the State as part of the curriculum. P. 262.

11. There is no conflict between the Regents' order involved in this case and the Briand-Kellogg Peace Pact, 46 Stat. 2343. P. 265.

219 Cal. 663; 28 P. (2d) 355, affirmed.

Appeal from a judgment denying a writ of mandate sought as a means of compelling the Regents of the University of California to permit Hamilton and Reynolds, Jr., two minors, to study at the University without taking the required course in military training.

Mr. John Beardsley for appellants.

Compulsory membership and service in the Reserve Officers Training Corps abridges the privileges and immunities of appellants as citizens of the United States, in violation of the Fourteenth Amendment.

The Reserve Officers Training Corps is a part of the military forces of the United States, and is no part of the military establishment of the State. The membership, control, courses of study, etc., are under the War Department. The commanding officers, uniforms and weapons (p.247)are supplied by the Federal Government. The primary object of establishing units. of the R.O.T.C. at the University is to qualify students for appointments in the Reserve Officers Corps of the United States Army. It is not necessary for us to contend here that compulsory training in a state military unit, for state purposes, would constitute an abridgment of the privileges and immunities of citizens of the United States.

Without authorization by Act of Congress, there is no power even in the Federal Government to compel service in any branch of the federal military establishment in time of peace.

The University of California is a Land Grant College, enjoying federal subsidy under the Morrill Land Grant College Act, approved July 2, 1862. Undoubtedly many such institutions have made military training compulsory in the sincere belief that the Morrill Act required that it be compulsory. It does not. See 36 Op. Atty. Gen. 297.

Since Congress has not required that military training in that branch of the federal military establishment known as the Reserve Officers Training Corps shall be compulsory, certainly the States and the Universities are without power to compel service in that military organization, not of the State, but of the Federal Government.

Freedom from compulsory service in a branch of the federal military establishment in time of peace is a privilege and immunity of citizens of the United States. The privileges and immunities guaranteed against state abridgment by the Fourteenth Amendment are those arising out of the essential nature and character of the National Government, and granted or secured by the Constitution of the United States. United States v. Cruikshank, 92 U.S. 542.

The Morrill Act affords immunity from enforced service in time of peace by not making military training in the Land Grant Colleges compulsory. Similarly the Act establishing the R.O.T.C. refrains from making training (p.248)compulsory and from authorizing it to be made compulsory in the Land Grant Colleges and other state educational institutions. It does, however, authorize the requirement of compulsory military training in other institutions wherein R.O.T.C. units are established, thus bringing into relief the intention of Congress not to authorize compulsion in the state colleges.

If it is said that the privileges and immunities of appellants are not abridged because they are not actually being compelled to serve in the R.O.T.C., it is unquestioned that they have been suspended from the University for their refusal to render such service, and no State may impose, as a condition upon which it will extend a privilege which it may legally grant or withhold, the surrender of rights under the Constitution and laws of the United States. Home Insurance Co. v. Morse, 20 Wall. 445, 456; Terral v. Burke Construction Co., 257 U.S. 529.

Compulsory military training imposed upon religious and conscientious objectors violates religious freedom, and deprives appellants of their freedom of religion without due process of law.

Just as the freedom of speech and press are protected against state abridgment by the due process clause of the Fourteenth Amendment; Stromberg v. California, 283 U.S. 359; Near v. Minnesota, 283 U.S. 697; so must freedom of religion in like manner be protected.

The older cases held that the guaranties of civil liberties in the First Amendment afforded no protection against abridgment by the States, since the Amendment is a limitation confined to the National Government. All that is changed by the Strombergand Near decisions, which remove all doubt that the liberties, guaranteed by the First Amendment are a part of the liberty safeguarded by the due process clause of the Fourteenth Amendment.

Depriving students of their right to education at their State University because of their refusal to engage in (p.249)military training in violation of the religious teachings of their Church and their own deepest convictions of religion and conscience, amounts to a prohibition of the free exercise of religion, in violation of the First Amendment, as made applicable to the States by the Fourteenth Amendment. Certainly freedom of religion means something more than the right to worship according to the dictates of one's own conscience. No law or constitutional guaranty is necessary to protect that right. The principle must afford protection to outward manifestations of religious belief. This court has sustained such manifestations in Meyer v. Nebraska, 262 U.S. 390, 399, and in Pierce v. Society of Sisters, 268 U.S. 510, 535. See also Hardwich v. Board of School Trustees, 54 Cal. App. 696.

Compulsory military training violates the Kellogg Pact, outlawing war. California, and the University of California, are bound by that treaty. The Federal Government, perhaps, may violate it. The States may not. We submit that compulsory training for war violates the spirit, if not the letter, of the Kellogg Pact.

Mr. John U. Calkins, Jr., with whom Mr. Frederic W. Hall was on the brief, for appellees.

By leave of Court, Mr. Sveinbjorn Johnson filed a brief, as amicus curiae, on behalf of numerous Land Grant Colleges,[249.*] in which he went largely into the history of the (p.250)Land Grant Act of 1862 and of the acceptance and interpretation by numerous States of the trusts created. He argued strongly in support of the view that under these trusts, military training must not only be offered but must be required at the beneficiary institutions, and he subjected the opinion of the Attorney General of June 20, 1930, 36 Op. Atty. Gen. 297, to a critical analysis.

Mr. Justice Butler delivered the opinion of the Court.

This is an appeal under 237 (a), Judicial Code, 28 U.S.C., 344 (a), from a judgment of the highest court of California sustaining a state law that requires students at its university to take a course in military science and tactics, the validity of which was by the appellants challenged as repugnant to the Constitution and laws of the United States.

The appellants are the above-named minors, and the fathers of each as his guardian ad litem and individually. They are taxpayers and citizens of the United States and of California. Appellees are the regents constituting a corporation created by the State to administer the university, its president, and its provost. Appellants applied to the state supreme court for a writ of mandate compelling appellees to admit the minors into the university as students. So far as they are material to the questions presented here, the allegations of the petition are:

In October, 1933, each of these minors registered, became a student in the university and fully conformed to all its requirements other than that compelling him to take the course in military science and tactics in the Reserve Officers Training Corps, which they assert to be an integral part of the military establishment of the United States and not connected in any way with the militia or military establishment of the State. The primary object of there establishing units of the training corps is to qualify students for appointment in the Officers Reserve (p.251)Corps. The courses in military training are those prescribed by the War Department. The regents require enrollment and participation of able-bodied male students who are citizens of the United States. These courses include instruction in rifle marksmanship, scouting and patrolling, drill and command, musketry, combat principles, and use of automatic rifles. Arms, equipment and uniforms for use of students in such courses are furnished by the War Department of the United States Government.

These minors are members of the Methodist Episcopal Church and of the Epworth League and connected religious societies and organizations. For many years their fathers have been ordained ministers of that church. The Southern California Conference at its 1931 session adopted a resolution:

"With full appreciation of the heroic sacrifices of all those who have conscientiously and unselfishly served their country in times of war, but with the belief that the time has come in the unfolding light of the new day for the settlement of human conflicts by pacific means, and because we as Christians owe our first and supreme allegiance to Jesus Christ. Because the Methodist Episcopal Church in her General Conference of 1928 has declared: 'We renounce war as an instrument of national policy.' Because our nation led the nations of the world in signing the Paris Peace Pact, and the Constitution of the United States, Article 6, Section 2, provides that: 'This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made under authority of the United States shall be the Supreme Law of the Land.' Thus making the Paris Pact the supreme law of the land which declares: 'The high contracting parties agree that the settlement of all disputes or conflict--shall never be sought except by pacific means.'(p.252)

"Therefore we, the Southern California Conference, memorialize the General Conference which convenes in Atlantic City in May, 1932; to petition the United States Government to grant exemption from military service to such citizens who are members of the Methodist Episcopal Church, as conscientiously believe that participation in war is a denial of their supreme allegiance to Jesus Christ."

And in 1932 the General Conference of that Church adopted as a part of its tenets and discipline: "We hold that our country is benefited by having as citizens those who unswervingly follow the dictates of their consciences ... Furthermore, we believe it to be the duty of the churches to give moral support to those individuals who hold conscientious scruples against participation in military training or military service. We petition the government of the United States to grant to members of the Methodist Episcopal Church who may be conscientious objectors to war the same exemption from military service as has long been granted to members of the Society of Friends and other similar religious organizations. Similarly we petition all educational institutions which require military training to excuse from such training any student belonging to the Methodist Episcopal Church who has conscientious scruples against it. We earnestly petition the government of the United States to cease to support financially all military training in civil educational institutions."

And the Southern California Conference at its 1933 session adopted the following:

"Reserve Officers' Training Corps--Recalling the action of the General Conference asking for exemption from military service for those members of our church to whom war and preparation for war is a violation of conscience, we request the authorities of our State Universities at Berkeley, Los Angeles and Tucson, to exempt Methodist students from the R.O.T.C. on the grounds of conscientious (p.253)objection, and we hereby pledge the moral and official backing of this Conference, seeking such exemption, provided that it be understood that no conscientious objector shall participate in the financial profits of war. The Secretary of the Conference is asked to send copies of this paragraph to the governing boards of these institutions."

Appellants, as members of that church, accept and feel themselves morally, religiously and conscientiously bound by its tenets and discipline as expressed in the quoted conference resolutions; each is a follower of the teachings of Jesus Christ; each accepts as a guide His teachings and those of the Bible and holds as a part of his religious and conscientious belief that war, training for war, and military training are immoral, wrong and contrary to the letter and spirit of His teaching and the precepts of the Christian religion.

Therefore these students, at the beginning of the fall term in 1933, petitioned the university for exemption from military training and participation in the activities of the training corps, upon the ground of their religious and conscientious objection to war and to military training. Their petition was denied. Thereupon, through that church's bishop in California, they and their fathers petitioned the regents that military training be made optional in order that conscientious and religious objectors to war, training for war and military training might not be confronted with the necessity of violating and foreswearing their beliefs or being denied the right of education in the state university to which these minors are entitled under the constitution and laws of the State of California and of the United States.

The regents refused to make military training optional or to exempt these students. Then, because of their religious and conscientious objections, they declined to take the prescribed course, and solely upon that ground the regents by formal notification suspended them from the (p.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) 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."[254.1](p.255)

March 23, 1868, the legislature of California passed an act creating the university "in order to devote to the largest purposes of education the benefaction made to the State" by the Morrill Act. Stats. 1867-8, p. 248. This law of the State, called the organic act, provides that "any resident of California, of the age of fourteen years or upwards, of approved moral character, shall have the right to enter himself in the University as a student at large, and receive tuition in any branch or branches of instruction at the time when the same are given in their regular course, on such terms as the Board of Regents may prescribe." 3. It declared that the college of agriculture should be first established, 4; that the college of mechanic arts should be next established, 5, "and in order to fulfill the requirements of the said Act of Congress, all able-bodied male students of the University, whether pursuing full or partial courses in any college, or as students at large, shall receive instruction and discipline in military tactics in such manner and to such extent as the Regents shall prescribe, the requisite arms for which shall be furnished by the State." 6. Article IX, 9, of the state constitution as amended November 5, 1918, declares: "The University of California shall constitute a public trust, to be administered by the existing corporation known as 'The Regents of the University of California,' with full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowments of the university and the security of its funds ... provided, that all moneys derived from the sale of public lands donated to this State by act of Congress approved July 2, 1862 (and the several acts amendatory (p.256)thereof), shall be invested as provided by said acts of Congress and the income from said moneys shall be inviolably appropriated to the endowment, support and maintenance of at least one college of agriculture, where the leading objects shall be (without excluding other scientific and classical studies, and including military tactics) to teach such branches of learning as are related to scientific and practical agriculture and mechanic arts, in accordance with the requirements and conditions of said acts of Congress." September 15, 1931, pursuant to the provisions of the organic act and constitution, the regents promulgated the following order:

"Every able-bodied student of the University of California who, at the time of his matriculation at the University, is under the age of twenty-four years and a citizen of the United States and who has not attained full academic standing as a junior student in the University and has not completed the course in military science and tactics offered to freshmen and sophomore students at the University shall be and is hereby required as a condition to his attendance as a student to enroll in and complete a course of not less than one and one-half units of instruction in military science and tactics each semester of his attendance until such time as he shall have received a total of six units of such instruction or shall have attained full academic standing as a junior student."

In the court below appellants assailed the laws and order above referred to as repugnant to specified provisions of the California constitution, and political code. And they adequately challenged the validity of the state constitution, organic act and regents order, in so far as they were by the regents construed to require these students to take the prescribed course in military science and tactics, as repugnant to the Constitution and laws of the United States.(p.257)

The state Court, without announcing an opinion, denied the petition for a writ of mandate. Appellants applied for a rehearing. The court, denying the application, handed down an opinion in which it held that Art. IX, 9, reposes in the regents full powers of organization and government of the university subject to legislative control in respect of its endowments and funds; that by 6 of the organic act and Art. IX, 9, military tactics is expressly required to be included among the subjects which shall be taught at the university and that it is the duty of the regents to prescribe the nature and extent of the courses to be given and to determine what students shall be required to pursue them, and that the suspension of the petitioning students because of their refusal to pursue the compulsory courses in military training involved no violation of their rights under the Constitution of the United States.

By their assignment of errors, appellants call upon this court to decide whether the challenged provisions of the state constitution, organic act and regents order, in so far as they impose compulsory military training, are repugnant to the privileges and immunities clause of the Fourteenth Amendment, the due process clause of that amendment or the treaty that is generally called the Briand-Kellogg Peace Pact. 46 Stat, 2343.

Appellees contend that this court has no jurisdiction because, as they say, the regents order is not a "statute of any state" within the meaning of 237 (a), Judicial Code. But by the California constitution the regents are, with exceptions not material here, fully empowered in respect of the organization and government of the university, which, as it has been held, is a constitutional department or function of the state government. Williams v. Wheeler (1913) 23 Cal. App. 619, 623, 138 Pac. 937. Wallace v. Regents (1925) 75 Cal. App. 274, (p.258)277, 242 Pac. 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 law-making power. King Mfg. Co. v. Augusta, 277 U.S. 100. Sultan Ry. Co. v. Dept. of Labor, 277 U.S. 135. It follows that the order making military instruction compulsory is a statute of the State within the meaning of 237 (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.[258.2]

The allegations of the petition do not mean that California has divested itself of any part of its power solely to determine what military training shall be offered or required at the university. While, by acceptance of the benefits of the Morrill Act of 1862 and the creation of the university in order appropriately to comply with the terms of the grant, the State became bound to offer students in that university instruction in military tactics, it remains untrammeled by federal enactment and is entirely free (p.259)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.[259.3] 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 cooperation between federal and state authorities in respect of the military instruction given in the land grant colleges.[259.4] The War Department has not been empowered [paragraph continues next page]

[Currently at pages 245-259.
Proceed to pages 260-261.
Proceed to pages 262-268.]


[249.*] The Land Grant Colleges on whose behalf this brief was filed are as follows:

Purdue University

Kansas State College

University of Arizona

University of Florida

Rhode Island State College

Connecticut State College

Texas A. & M. College

Michigan State College

Montana State College

University of Arkansas

South Dakota State College

University of Wyoming

University of Maryland

Virginia Polytechnic Institute

University of Minnesota

[254.1] The quoted language, 4, has been twice reenacted. See Act of March 3, 1883, 22 Stat. 484. Act of April 13, 1926, 44 Stat. 247.

Morrill Act land grant colleges have been given federal aid under the following acts: March 2, 1887, 24 Stat. 440; August 30, 1890, 26 Stat. 417; March 16, 1906, 34 Stat. 63; March 4, 1907, 34 Stat. 1256, 1281; May 8, 1914, 38 Stat. 372; February 24, 1925, 43 Stat. 970; May 22, 1928, 45 Stat. 711. And see Acts of February 23, 1917, 39 Stat. 929; June 7, 1924, 43 Stat. 653; February 9, 1927, 44 Stat, 1065.

[258.2] Micas v. Williams, 104 U.S. 556. Wabash R. Co. v. Flannigan, 192 U.S. 29, 38. Deming v. Carlisle Packing Co., 226 U.S. 102, 105, 107. Erie R. Co. v. Solomon, 237 U.S. 427. Chicago, R. I. & P. Ry. Co. v. Devine, 239 U.S. 52, 54. Sugarman v. United States, 249 U.S. 182. Quong Ham Wah Co. v. Industrial Commn., 255 U.S. 445, 448-449. Zucht v. King, 260 U.S. 174, 176. Roe v. Kansas, 278 U.S. 191. Seaboard Air Line Ry. v. Watson, 287 U.S. 86, 92.

[259.3] 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.

[259.4] 40-47 of National Defense Act of June 3, 1916, 39 Stat. 166, 191-2,as amended by 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. Army Regulations No. 145-10, II, pars. 10 and 11.

Cf. Acts of July 28, 1866, 14 Stat. 332, 336, and of May 4, 1870, 16 Stat. 373; R. S. 1225, as amended July 5, 1884, 23 Stat. 107, 108; September 26, 1888, 25 Stat. 491; January 13, 1891, 26 Stat. 716; November 3, 1893, 28 Stat. 7; February 26, 1901, 31 Stat. 810; April 21, 1904, 33 Stat. 225; June 3, 1916, 39 Stat. 166, 197; June 4, 1920, 41 Stat. 759, 780.