FARRINGTON v. TOKUSHIGE
11 F.2d 710 (1926)
FARRINGTON, Territorial Governor, et al.
T. TOKUSHIGE et al.
Circuit Court of Appeals, Ninth Circuit.
March 22, 1926.
William B. Lymer, Atty. Gen., of Hawaii, and Frear, Prosser, Anderson & Marx and W. F. Frear, all of Honolulu, Hawaii, for appellants.
Lightfoot & Lightfoot, J. Lightfoot, and J. B. Poindexter, all of Honolulu, Hawaii, for appellees.
Before GILBERT, RUDKIN, and McCAMANT, Circuit Judges.
RUDKIN, Circuit Judge.
The present appeal involves the validity of the Foreign Language School Act of the territory of Hawaii. Rev. Laws Hawaii 1925, §§ 390-399. The act in question defines the term "foreign language school" as any school conducted in any language other than the English or Hawaiian language, except Sabbath schools, and its more prominent and questionable features are the following:
No such school shall be conducted in the territory, unless under a written permit therefor from the department of public instruction, nor unless the fee therefor shall have been paid as therein provided, and such permit shall be kept exposed in a prominent place at the school, so as to be readily seen and read by visitors thereat. The fee prescribed is $1 per pupil on the estimated average attendance of pupils at the school during the period during which such school was conducted during the next preceding school year, or, if such school was not conducted during any part of such preceding school year, then at the same rate at the estimated average attendance during the school year or unexpired part thereof in question, in which latter case the amount shall be adjusted to conform to the estimated average attendance during such year or part thereof. The amount of the fee shall be estimated and determined by the department from such information as it may have, and shall be payable by any person, persons, or corporation conducting or participating in conducting such school, and all officers, teachers, and all members of any committee or governing board of any such school, and in case such school is conducted by or for a corporation or voluntary association, or other group of persons, all members or associates of such corporation, association, or group shall be deemed to be participants in conducting such school. Provision is then made for the collection of the fees by suit, but that provision is not deemed material here.
All permits must be renewed annually on the 1st day of September of each year, and a smilar fee must be paid, provided the department shall not be required to renew a permit for conducting any foreign language school, in the conducting of which there has been a violation of the terms of the act. All fees collected by the department under the act shall be paid over to the treasurer of the territory, and the moneys so paid are appropriated to the department, to be expended in enforcing and carrying out its provisions. If at any time the funds at the disposal of the department from fees previously collected or from royalties, commissions, or other moneys received in connection with the publication or sale of foreign language school text-books shall make it possible to fully and effectively carry out the provisions of the act with the permit fees payable by the schools based on a lower rate than $1 per pupil, the department is authorized to make such a reduction in that rate as it may deem reasonable and expedient. Every person conducting a foreign language school shall, not later than June 15 of each year, file with the department, on forms prescribed or furnished by it, a sworn list of all pupils in attendance at such school during the current school year, showing the name, sex, parents or guardians, place of birth, and residence of each child.
No person shall teach in a foreign language school unless and until he shall have first applied to and obtained a permit so to do from the department, and this shall also be construed to include persons exercising or performing administrative powers at any school. No permit to teach in a foreign language school shall be granted unless and until the department is satisfied that the applicant for the same is possessed of the ideals of democracy, knowledge of American history and institutions, and knows how to read, write, and speak the English language. It is the declared object of the act to fully and effectively regulate the conducting of foreign language schools and the teaching of foreign languages, in order that the Americanism of the pupils may be promoted and the department is directed to carry out the provisions of the act in accordance with its spirit and purpose. Before issuing a permit to conduct a foreign language school or to teach in any such school the department shall require the applicant for such permit to sign a pledge that the applicant will, if granted a permit to teach in such a school, abide by and observe the terms of the act, and the regulations and orders of the department, and will, to the best of his ability, so direct the minds and studies of pupils in such schools as will tend to make them good and loyal American citizens, and will not
permit such students to receive instructions in any way inconsistent therewith.
No foreign language school shall be conducted in the morning before the school hours of the public schools, or during the hours while the public schools are in session, nor shall any pupil attend any foreign language school for more than one hour each day, nor exceeding six hours in any one week, nor exceeding thirty-eight weeks in any school year: Provided, however, the department may, in its discretion and with the approval of the governor, modify this provision. The department shall have full power from time to time to prescribe by regulations the subjects and courses of study of all foreign language schools, and the entrance and attendance prerequisites or qualifications of education, age, school attainment, demonstrated mental capacity, health and otherwise, and the text-books used in any foreign language school. Until otherwise provided by the department, the following regulations are in effect:
Up to September 1, 1923, every pupil shall have first satisfactorily completed the American public school first grade, or a course equivalent thereto, before attending or being allowed to attend any foreign language school. Beginning September 1, 1923, and thereafter, every pupil shall have satisfactorily completed the American public school first and second grades, or courses equivalent thereto, before attending or being allowed to attend any foreign language school. Beginning September 1, 1923, and thereafter, for grades 1, 2, and 3, and beginning September 1, 1924, and thereafter, for grades 4 and above, all new text-books used in elementary foreign language schools shall be based upon the principle that the pupil's normal medium of expression is English, and shall contain, as far as practicable, English equivalents for foreign words and idioms. The department is authorized to prepare, or cause to be prepared, or procure or arrange for procuring, suitable text-books for the teaching of foreign languages in the foreign language schools, and to enter into an agreement or agreements for the publishing and sale of the same. All royalties, commissions, and moneys received by or on behalf of the department in connection with the publication or sale of such text-books shall be paid over to the treasurer of the territory, and shall be appropriated to the department to be expended for the purposes of the act.