Gingerich v. State

• Decision Date: 30 December 1948
• Docket Number: 28455.
• Citation: Gingerich v. State, 226 Ind. 678, 83 N.E.2d 47 (Ind. 1948)
• Parties: GINGERICH v. STATE
• Court: Indiana Supreme Court

83 N.E.2d 47

226 Ind. 678

GINGERICH v. STATE

No. 28455.

Supreme Court of Indiana

December 30, 1948

Appeal from Jay Circuit Court; Byron G. Jenkins Judge.

Roscoe D. Wheat and James W. Grimes, both of Portland, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, and Merl M. WallDeputy Attys.Gen., for appellee.

YOUNG Chief Justice.

This is an appeal from a final judgment of guilty in a case wherein appellant was charged with violating the Indiana compulsory school attendance law.Acts of 1921 General Assembly, ch 132, § 28-501 et seq., Burns' 1948 Replacement.

Appellant is a farmer and a member of the religious sect known as the Old Order of Amish Mennonites.He lived with his wife and 13 children in Green Township, Jay County, Indiana.It appears that all of the public schools in Green Township had been abandoned and school children of that township attended the schools of Penn Township which adjoined.Appellant's son Joe, age 14 at the time of the proceedings herein considered, had graduated from the eighth grade of the Penn Township schools, and had been assigned to the high school at Pennville, which is located in Penn Township, Jay County, Indiana.

Appellant refused to send his son Joe to the Pennville high school and thereupon an affidavit against him was filed in Jay Circuit Court, in which it was alleged in substance that the son Joseph Gingerich was a child 14 years of age and that appellant did 'permit, compel or encourage' his son 'to become and remain absent from the public schools of the district which the said son was by law required to attend.'No motion to quash the affidavit was ever filed, nor was any question as to its sufficiency ever raised by a motion in arrest of judgment, or otherwise, either in the trial court or here upon appeal.The appellant went to trial upon this affidavit without objection.Even if defective the defects were waived by failure to file a motion to quash or in arrest of judgment.Scherer v. State,1917, 187 Ind. 15, 16, 116 N.E. 52;Robinson v. State,1916, 185 Ind. 119, 123, 124; 113 N.E. 306;Boos v. State,1913, 181 Ind. 562, 564, 565, 105 N.E. 117.If the evidence offered to support the affidavit was sufficient to show an offense the shortcomings of the affidavit need not be taken into account by this court on its own motion on appeal.They will be considered cured by the finding of guilty by the court.41 Am.Jur., Pleading, § 404, p. 572.

The appellant contends that Green Township constitutes the school district wherein he and his son reside and that because there is no school provided in Green Towhship he cannot be prosecuted for failing to send his son elsewhere.He also contends that one of the tenets of his church is that children shall not receive higher education but shall discontinue their education at the conclusion of the eighth grade, and that to compel him to send his son to high school is an unreasonable interference with his right as a parent to direct the upbringing and education of his children and an unconstitutional invasion of his religious liberty.

Upon trial appellant was found guilty and fined $200.00 and sentenced to the Indiana State Farm for 60 days, which was the maximum punishment provided by the statute under which appellant was prosecuted, and which punishment appellant contends is excessive and in violation of the provision of the Indiana Constitution which prohibits excessive fines and cruel and unusual punishments.Constitution of Indiana, Art. 1, § 16.

In Section 1 of the compulsory school attendance act, there appears the following language:

'Every county and every city having an average daily attendance of fifteen hundred (1,500) or more children of school age, shall constitute a separate attendance district. * * *'§ 28-501, Burns' 1948 Replacement.

In Section 5 of said Act there appears the following language:

'Unless otherwise provided herein, every child between the ages of seven (7) and sixteen (16) years shall attend public school, or other school taught in the English language which is open to the inspection of local and state attendance and school officers; and such child shall attend such school each year during the entire time the public schools are in session in the school district in which such child resides.

* * *' (Our italics.)§ 28-505, Burns'1948 Repl.

In section 8 of the Act there appears the following language:

'Every parent and guardian of any minor child or ward shall be held legally responsible for any violation of this act by such child or ward, unless such parent or guardian is not a party to such violation. * * *'§ 28-508, Burns'1948 Repl.

Section 17 of the Act(§ 28-517, Burns'1948 Repl.) provides that any person who shall compel or encourage any minor to violate any of the provisions of the act above set out shall, upon conviction, be fined not less than $10.00 nor more than $200.00 or be imprisoned in the county jail not exceeding 60 days or both.

Our first task is to determine what is meant by the words 'the school district in which such child resides', italicized in the above quotation from section 5 of the act.Appellant contends that the township constitutes the school district referred to and that, there being no schools in session there, he was not required to send his child to school.His counsel point to statutes which make townships both civil and school corporate entities, § 28-2401, Burns'1943 Repl., and they also contend that the entire township, being a corporate school entity, becomes the school district referred to in said section 5, and cite Miller v. State,1921, 77 Ind.App. 611, 613, 134 N.E. 209.In that case a child had completed the eighth grade of an elementary school in the township where the child resided.Apparently the elementary school district was smaller than the township and the question before the court was whether or not the child could be compelled to attend a high school in the township where it resided which was outside the elementary school district in which the child resided.The Appellate Court held that where there is a high school in a township the township is the school district for high school purposes and that because the high school was not located in the elementary school district the parents of the child were not excused from sending it to a high school elsewhere in the township.The court failed to consider the language of section 1 of the compulsory school attendance Act of 1921, which makes the county the school attendance district, but the conclusion reached is consistent with what we hold in the case before us, viz., that there may be different school districts for different school purposes.It recognized there was one district for elementary school purposes and another for high school purposes.

In determining what constitutes a school district for the purposes of the case before us, we must keep in mind that there are two phases of our school laws.One is the phase by which schools are provided and children are assigned to them the other is the phase by which school attendance is compelled.These two phases of school legislation are separate and distinct.Our compulsory school attendance law imposes duties and obligations upon parents to keep children between the ages of seven and sixteen in school.It provides the mechanics for the enforcement of such duty.It contains nothing with reference to the establishment of schools or the designation of schools to which any child shall be sent.A close reading of section 5 of the 1921 Act will disclose that the duty is to send the child to some public or other school which is subject to inspection by local and state attendance and school officers.It does not require that it be sent to a school designated by the proper authority or to any particular school.The school may be in the school district in which the child resides or it may be outside the school district in which the child resides, provided it is subject to...