Gen. McKenzie—Your Honor, we have the very highest regard for these distinguished lawyers. I will admit that I have no respect for their opinions that have been advanced as to the law, and do not believe it to be the law—that I have the right to say in the legal form. But, so far as wanting to insult or hurt the feelings of either one of these various gentlemen, that is not my intention. I have been reading from our supreme court opinion. I do not know whether they have any respect for that or not.
Now, then, the distinguished gentleman remarked in regard to the police power of the state. Our supreme court said that this can be classified as either the exercise of power under the power of the legislature or under the police power, either one they want, against the state. And our supreme court said that the police power of the state and of the government has never been defined. The United States supreme court in 128 U. S. said the same thing. So, it don't seem to be so very restricted.
Police Power Never Defined.
In determining whether the statute enacted under the police power and discriminating between particular classes of persons, is reasonable, the courts have no power to pass upon the statute with a view to determining whether it will ultimately redound to he public good, or counteract to natural justice or equity, because these expressions are solely for the legislature. But the function of the courts is merely to decide whether it has any real tendency to carry into effect the purpose designed in the act, ultimately the protection of the public safety, the public health or the public morals. There can be no question, as we view it, as to the constitutionality of the act, or the validity of the indictment.
It serves notice on the defendant of what? That you were employed to teach in the public schools of Rhea county, that you taught a theory that is contrary to the record given by the Holy Writ as to the creation of man, and insist it defines its own self. It does not need any construction. Instead, you taught that a man descended from a lower order of animals, just in the language of the statute. There can be no question on that ground.
Sue Hicks—I do not want to take up much time of Your Honor, because I think the most of their exceptions, I think that all of their exceptions are not valid, and I think the most of them are not worth considering, but I would like to say a word or two on one or two of the assignments made, that my colleagues have overlooked.
Now, further on the question of education and science, literature and science, I would like to say this—that the constitutional convention had in mind when they made that clause that the great public school fund should be preserved and not directed to any other purpose, and that is the main intention of the constitutional convention.
I will go on and read right here in part, I want to read from the case of Lieper vs. State, a particular excerpt from it, which has not been quoted, that Your Honor has not seen:
"We are of the opinion that the legislature under the constitutional provsion may as well establish a uniform system of schools and a uniform administration of them, as it may establish a uniform system of criminal laws and of courts to execute them."
Then, it goes on and says under the police powers that they have the right to do that, and then further it says: The court not only upholds the right of the legislature to pass this new police power, and also under the inherent right of the state to control its schools. They have two grounds on which to pass the act, if they think the teaching of evolution is harmful to the children of the state, to the future citizens of the state, upon the ground of police power, they may pass the act. They do not have to consider whether it is harmful, if, in their own judgment, they want to pass the act regulating the schools, be-
