The opinion
Salinger, J.
(dissenting). The majority holds injunction will lie to restrain the paying over of public funds to school officers if such money is used in support of a school *728 wherein practices are permitted which amount to a propaganda for some religious sect. If it be assumed such practices exist, either with the direct or implied consent of the school officers, that constitutes a wrong for which there is some remedy. But we should not trample upon wisely established usages of the law merely because we are convinced wrong has been done. I contend for no more than that hard cases shall not make bad law. In the last analysis, the injunction against the use of public money is here awarded because a school board' and school officers and teachers employed by them are, in specified regards, committing acts which the law condemns. It would be affectation to cite authorities for the proposition that, no matter how clear it may be that a wrong exists to be remedied, the extraordinary remedy of injunction is not due unless it further be made to appear that injunction is the only adequate remedy. To be sure, starving a school out of existence is a most adequate method of stopping improper conduct.of such school. So, burning down a house terminates the wrongful occupation of it. But, ordinarily, eviction of the trespasser is resorted to, instead. Is starving this school out of existence by injunction the only adequate method of abating the practices complained of?
It may not be denied that the laws of this state give to the department of public instruction, either by direct action or on the appellate side, or both, full power to discipline a teacher who misconducts himself, and to remedy a wrong either by omission or commission committed by boards of directors-and school officers. .And if it were true that this is an unwise delegation of power, the fact would not enlarge the powers of the courts.
It seems to be the thought of the majority that resort to the department of public instruction is not an adequate remedy: First, because the discretion of the board to abandon a schoolhouse and rent another room for the .use *729 of a school is not in the absolute discretion of the board, and that whether such abandonment and renting is authorized depends upon whether it is necessary to abandon one room and rent the other; second, that, since the department of public instruction cannot enter a judgment for a money recovery, nor enforce its own mandates, that, therefore, injunction lies in this case. Grant that, where the board abandons one room and rents another, there may be an inquiry into whether the change was necessary. That proves that review may be had, but not that it may not be done by the department, and may or must be done on injunction. And if it be sound argument that injunction is the remedy, because the department cannot enter a money recovery, and one must resort to the court 'if the lawful orders of the department are disobeyed, such argument proves too much. If that be the test of power, the department of public instruction has no power to act. If it should cancel the certificate of a teacher for misconduct, that order, in and of itself, will not stop the employment of the teacher by school officers, nor paying the teacher out of public funds. Notwithstanding the cancellation of the certificate, the courts must be resorted to, to prevent such teacher from acting or being so paid. Following the majority to the logical end, the department has no power to cancel a certificate; and, where a teacher so conducts himself as that his certificate should be revoked, the revocation should be accomplished by enjoining him from teaching, and the board from paying him. That a quasi judicial department or a ministerial one even cannot take all the steps that a court may, does not establish that its powers are so inadequate as that equity may interfere by injunctive order. The orders of the Interstate Commerce Commission must be enforced by the courts. Will that authorize courts to fix rates by enjoining rates charged and making a mandatory order that different ones be charged? The finding of our industrial commissioner must be effectuated by *730 decree of court. Can the court, therefore, make an original award under the Compensation Act ? A trespass by use of a vacated highway may be punished by the courts only, bul the vacation cannot be restrained because the subject-matter is, by statute, given to the town council. McLachlan v. Incorporated Town of Gray, 105 Iowa 259 . While I agree that the cases cited by the majority hold that, when school officers act beyond their jurisdiction, appeal to the county superintendent is, if' a remedy at all, not the exclusive reme-, dy, I fail to see the applicability of it. Surely, the school board had power to determine in the first instance whether it was wise to house a school sparsely attended in a better room, and át a nominal rental. Theirs may have been an unwise decision. You may assume, for the sake of argument, that it was a corrupt one, — but that does not go to power. Wherefore, the county superintendent manifestly had power ’ to review such action. See Bogaard v. Independent Dist. of Plamview, 93 Iowa 209, at 272 ; Rodgers v. Independent School Dist. of Colfax, 100 Iowa 317 . Surely, the board had power to prevent a teacher from engaging in a religious propaganda while teaching on public pay. Surely, the county superintendent had power, either originally or on appeal, to compel the cessation of the practice. Certainly, he had power to disqualify such teacher from teaching at all. If he failed in his duty, surely the state superintendent could act effectively.
The majority is driven into inconsistency. It meets claims that the directors did not know what was being done as if their knowing or not knowing was important. It declares that, if “these officers gave any attention whatever to their official trust, they must have known the facts as they existed,” and that “the only explanation is that, having surrendered the school to the care of the church, the officers cást off'all thought of future care or attention, except to go through the form, from time to time, of contracting with the *731 teachers, and providing for the support of the school from the public funds;” and that “there is no showing that the board ordered a discontinuance of the use of the catechism,” and that, even after complaint made,, neither the board, any director, or any officer, “took any action whatever to interfere with the practice, or gave any order or instruction to the sister in charge of the school to discontinue it;” that there is no showing of “any real or substantial removal of the objectionable features;” that, when complaint was made, no more was done than to “tell the complaining parties to investigate, and report again in the future;” that “not one of the directors ever visited the school, or gave to the sister in charge any instruction, direction, or rule with reference to her duties;” that, as to directions given, “there is not a word of this kind in the records of the board or of the school which have been put in evidence;” that it suffices to show the objectionable practices were sanctioned, though, as was the case in Hysong v. Gallitzin Borough School District, 164 Pa. 629 , there was no proof of formal and recorded resolution authorizing or sanctioning the practice; that the county superintendent does not say that, when he heard of the teaching of the catechism in this room, that he “took measures to prevent it, and that such study was thereafter abandoned,” and that, “if it ever occurred to his supervisory discretion to inquire into the absence of the younger pupils who, as a rule, constitute the larger part of every public school, he does not mention it.” To cap all, the order below is modified, to the extent of leaving it to the board to take the pupils from the room where they now are, and provide them with accommodations elsewhere in the subdistrict, which is done with a statement that “it must be assumed that the board of directors will do its duty in supplying the need so occasioned, and that the mandatory features of the decree as rendered below may properly be eliminated.”
*732 The inconsistency is most marked. After disposing of the appeal by holding that the court has jurisdiction to enjoin because no officer in the department of public instruction has efficient power to act, granting the injunction is sustained because these officers did not act. If the department had no power to act, and, therefore, the courts may act, it becomes entirely immaterial that the department did not act. It can base no argument to point out that there was a failure to do what there was no power to do. • And, after holding that injunction must be sustained because the board and others had no power to remedy, the final word leaves the remedy to the board. If the board can now take the children from where they are and put them into another school room, it always had that power; and the county superintendent and the state superintendent had power to see that they did this. It must follow that the remedy by injunction is not sustainable upon the ground that the department could not give an adequate remedy.
II. It is true both the statute and the Constitution prohibit the appropriation of public money in aid of any private or sectarian school; but, while that establishes that this must not be done, it does not in the least enlarge the powers of the court of chancery on injunctions. The law prohibits murder. Does that justify an order restraining one from committing it ? A school should not be transplanted without good reason, and renting a place for it to be conducted in was held to be wrongful in Pronovost v. Bru nette, 36 N. D. 288 ( 162 N. W. 300 ). But how does that authorize injunctive relief, rather than a resort to the department of public instruction? The majority says this act was wrongful. But that does not prove that injunction is the remedy. My views seem to me to be supported by what the authorities negative and affirm — and as much by those relied on by the majority as by others. One striking instance is found in Board of Ed. of City of Cincinnati v. Minor, 23 *733 Ohio St. 211 . The case is squarely against the majority holding, and the opinion is driven to disregard what is the decision, and to support itseli by its general language, “broader discussion,” to the effect that true Christianity asks no aid from government. The decision is repudiated because it is “technical,” and the only use made of the case is to set out said “broad” language. What the Ohio case decides is that an injunction should not issue restraining a board of education, and certain of its members and officers, from carrying into effect or enforcing certain resolutions adopted by the board which prohibit religious instruction and a reading of religious books, including the Holy Bible, in the common schools; and the refusal is put upon the ground that, the legislature having placed the management of public schools under the exclusive control of directors, trustees, and boards of education, the courts have no rightful authority to interfere, by directing what instructions shall be given or what books shall be read therein. The citation of Donahoe v. Richards, 38 Me. 379 , is also of doubtful use. In the first place, it was a damage suit, and no injunction was sought. In the next, it is authority against several positions taken by the majority. It was an action by next friend against the superintending school committee, to recover damages for maliciously, wrongfully, and unjustifiably expelling a pupil from one of the town schools. She was expelled for refusing to read in the school the Protestant version of the English Bible, which had previously been ordered to be used- therein by the defendants. The exact holding is that the legislature has reposed the power of directing the general course of instructions and what books shall be used in the schools to this committee, and it may rightfully enforce obedience to all the regulations by it made within the sphere of its authority; that, for a refusal to read from the books thus prescribed, the committee may expel the disobedient scholar; that no scholar can *734 escape or evade such requirement, when made by the committee, under the plea that his conscience will not allow the reading of such a book, nor can the ordinance be nullified because the church of which the scholar is a member holds, and has so instructed its members, that it is a sin to read the books prescribed; that a law is not unconstitutional because it may prohibit what one may conscientiously think right, or require what he may conscientiously think wrong; and that a requirement by this committee that the Protestant version of the Bible shall be read in the public schools by the scholars who are able to read, is no unconstitutional provision, and is binding on all the members of the school, although composed of divers religious sects. Whether'we care to go as far as this or not, it certainly affords no support for the majority.
In O’Connor v. Hendrick, 184 N. Y. 421 ( 77 N. E. 612 ), the state superintendent of public instruction had, under delegated authority from the legislature, made a rule prohibiting teachers from wearing a distinct religious garb while engaged in the work of teaching; and, the question being whether this rule was reasonable, it was held that he could exercise any powers the legislature might, and that it might require all teachers to wear a particular garb as an emblem of their profession, and no one could complain. Wherefore, this regulation was a reasonable one. -Now, while it is perhaps true that the power of regulation which the New York legislature gave to the superintendent of public instruction is not conferred upon the county superintendent in Iowa as an original power, such power is given the school boards, and it must follow that, this being so, what the school board does or fails to do in this regard can be regulated on appeal to the county superintendent, because giving such power to the board of necessity gives the superintendent jurisdiction to regulate that power on appeal.
*735 In Commonwealth v. Herr, 229 Pa. 132 ( 78 Atl. 68 ), a statute which prescribed the wearing in the public school by a teacher of any dress, 'etc., indicating the fact that such teacher is an adherent or member of any religious order, etc., and imposing a finé upon the board of directors permitting the same, is held not to be violative of constitutional right to freedom of conscience and religious belief, because it is directed against actions, and not beliefs, and only against the acts of the teachers while engaged in the performance of their duties .as such, — something which the legislature has the right to control. The case was a prosecution of the school directors for failure to enforce this statute. Several cases cited for the opinion do sustain the granting of injunctions. But it does not appear that statutes gave power in the premises to a department of public instruction, and in each of them, the practices complained of, and not the support of the school, was enjoined. See Stevenson v. Hanyon, 4 Pa. St. 395; Herald v. Parish Board, 136 La. 1034 ( 68 So. 116 ); Hysong v. School Dist. of Gallitzin, 164 Pa. 629 ( 30 Atl. 482 .) All I can find in Moore v. Monroe, 64 Iowa 367 , is that the statute, as it stood at the time of the decision, makes it a matter of individual option with school teachers as to whether they will use the Bible in their schoolroom; that such option is restricted only by the provisions that no pupil shall be required to read it contrary to the wishes of his parent or guardian; and that such option is not in conflict with the Constitution. The prayer was for injunction to .prevent the reading or repeating, of passages in the Bible. It certainly is held that this injunction will not lie, although it is not put upon the express ground that there is adequate remedy at law. It is said arguendo that there is, at all events, no ground for enjoining religious exercises in the public schools, where it does not appear that attendance thereupon is compulsory and that the burden of taxation is thereby increased.
*736 In Jenkins v. Inhabitants of Andover, 103 Mass. 94 , it is held that a town may not, independently of statute law, raise, and, by reason of constitutional provisions, may not take authority by statute to raise, bjr taxation, and appropriate money to support as a public school, a school founded by a charitable bequest which vests the order and- superintendence in trustees who, though a majority of them are to be chosen by the inhabitants of the town, yet are limited to be members of certain religious societies; wherefore, there may be an injunction restraining the enforcement of a vote by which it is attempted to raise money by taxation to appropriate the same to the support of such school. It should not require elaborate argument to distinguish restraining the raising of a tax for the support of what is confessedly not a public school, either in form or substance, and an injunction to restrain the use of money already raised, and settling on injunction whether certain practices make a parochial out of what was a public school. The other citations involve a suit to collect public money for school aid (Synod of Dakota v. State, 2 S. D. 366 [ 50 N. W. 632 ]); mandamus ordering the payment of- such money (Otken v. Lamkin, 56 Miss. 758 ; State v. Hallock, 16 Nev. 373, at 376 ) ; mandamus to remove a school to a place leased as ordered by resolution of the board (Pronovost v. Brunette 36 N D. 288 [ 162 N. W. 300 ]); and mandamus to compel desistence from objectionable practices (People v. Board of Education, 245 Ill. 334 [ 92 N. E. 251 ]; State v. District Board of City of Edgerton, 76 Wis. 177 [ 44 N. W. 967 ]; State v. Scheve, 65 Neb. S53 [ 91 N. W. 846 , and 93 N. W. 169 ]). In this last, the fact that the .court entertained an application for mandamus by the state running to the school board to compel it to have these practices discontinued, demonstrates that the school board might efficiently provide a remedy, and, therefore, demonstrates that failure to do *737 so makes a case, not for the court, but for the department of public instruction.
III. It bas been demonstrated that the school whose means of life the majority proposed to cut off at the root is still, in form at least, a public school: that is to say, no action has dissolved it and declared it to be a parochial school. Its officers are still acting on authority of statute. The opinion itself says that misusing the alleged appropriation of funds is an act which is being done by “the defendants in their official capacity.” I have pointed out that abating the evil by transplanting the school to proper quarters is, by the majority, left to the district board.
Assume the practices might be enjoined, and that is still different from enjoining the use of school money. To the reasons I have already given why the latter should not be done, it may be added that, if the practices be restrained, desistence will automatically end the misuse of money. But where the payment of support money is restrained because of the pi’actices, their abandonment would still leave the injunction in force. Enjoining the practices might lead to some contempt prosecutions while the school was going on. The remedy sustained here stops the school until, on another hearing, it is proved that the practices have been discontinued; and as the school was not going, it could not well be shown that it was being properly conducted. The difficulty may be avoided by obeying the legislative will, and proceeding before the department of public instruction.
In one word, where the use of public money is unlawful only because certain things are being done by school officers, it is true that stopping the money will stop the doing of these things. Is it not as true that, if the acts are stopped, the use of the money will not be unlawful? I have stated as well as I am able why I think it better to force legalization of the use of the money by stopping the acts that make the use unlawful, than to prevent the unlawful *738 use of money by the destruction of the object upon which it will be expended.
I think we should reverse on the ground that injunction to stop the use of public money was not the proper procedure, because there is an adequate remedy by appeal to the department of public instruction.