State v. Jackson

• Decision Date: 04 December 1902
• Citation: 53 A. 1021,71 N.H. 552
• Parties: STATE v. JACKSON.
• Court: New Hampshire Supreme Court

53 A. 1021

71 N.H. 552

STATE

v. JACKSON.

Supreme Court of New Hampshire. Carroll.

Dec. 4, 1902.

Exceptions from superior court.

Samuel H. Jackson was convicted of violation of the school law, and excepted. Exceptions sustained.

The defendant moved to quash the complaint on the ground that the statute under which it was brought is unconstitutional. The motion was denied, subject to exception. The state's evidence tended to prove the following facts: The defendant has the custody and control of his daughter Alice, aged 10 years. They reside in the school district of Tamworth, in this county, in which a public school is annually taught. Alice has never been instructed in any private school approved by the school board, and has not acquired the common English branches. She has not attended the public school all the time it was in session, and has not been excused from attendance by the school board. No formal application was ever made for such excuse, and no evidence as to the condition of the child, other than the statement of the defendant to the school board, was ever offered to the board until the day of trial. The defendant offered evidence to show that Alice was in feeble health; that he took her from school, believing in good faith that her attendance at and confinement in school would seriously injure her reason and health; that he so informed two members of the school board before he removed her from school, and offered evidence of a physician that her confinement in the school would greatly endanger her life; all of which evidence was excluded, and the defendant excepted.

Edwin G. Eastman, Atty. Gen., and Sewall W. Abbott, for the State.

Arthur L. Poote, for defendant.

REMICK, J. 1. The motion to quash the complaint on the ground that the statute upon which it was founded is unconstitutional was properly denied. The statute is as follows: "Every person having the custody and control of a child between the ages of eight and fourteen years, residing in a school district in which a public school is annually taught, shall cause such child to attend the public school all the time such school is in session, unless the child shall be excused by the school board of the district because his physical or mental condition is such as to prevent his attendance for the period required, or because he was instructed in the English language in a private school approved by the school board, for a number of weeks equal to that in which the public school was in session, in the common English branches, or, having acquired those branches, in other more advanced studies. Any person who does not comply with the requirements of this section shall be fined ten dollars for the first offence and twenty dollars for every subsequent offence." Pub. St. c. 93, § 14; Laws 1901, c. 61, § 1. That education of the citizen is essential to the stability of the state, is a proposition too plain for discussion. As a mere generalization of our own, it would command immediate and universal assent. But it rests upon a firmer foundation. The constitution declares that "knowledge and learning, generally diffused through a community," are essential to the preservation of a free government. Const, art. 82. Nor does it stop with this abstract statement. It provides that "it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools." Const art. 82. Showing that something more than a mere sentimental interest was intended by the injunction "to cherish the interests of literature," etc., this court has said: "The clause in the constitution * * * in regard to the encouragement of literature, in connection with the early legislation on the subject, * * * shows conclusively, if any such evidence were needed, that the framers of the constitution, as well as their contemporaries in the legislature, regarded the subject of education as one of public concern, to be cherished, regulated, and controlled by the state; and the great multitude and variety of acts passed since show that no different view has ever been entertained. * * * The constitution enjoins the duty in very general and comprehensive terms on magistrates and legislators as one of paramount public importance." Ladd, J., in Farnum's Petition, 51 N. H. 376, 378, 379. It thus being the constitutional duty of the legislature to diffuse knowledge and learning through the community, it must be within the constitutional power of the legislature to enforce school attendance to that end. But the right is not left to implication. "Full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties or without, so as the same be not repugnant or contrary to the constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof." Const, art. 5. Whether the statute in question is "wholesome and reasonable," within the meaning of the provision of the constitution last referred to, is a question over which the court has no control. "The ample authority conferred upon the legislature to make, ordain, and establish all manner of wholesome and reasonable orders, laws, and statutes, which it shall judge to be for the good and welfare of the commonwealth, necessarily invests that department of the government with the right of determining conclusively upon the propriety and reasonableness of all provisions which are not in some way repugnant to the constitution." Com. v. Williams, 6 Gray, 1, 3; Orr v. Quimby, 54 N. H. 590, 608. "The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power." Cooley, Const. Lim. 201. "We have not to inquire into the policy of the law, or, if the purpose be admitted to be public, whether the supposed public good to be attained was sufficient to justify the legislature. * * * All mere questions of expediency, and all questions respecting the just operation of the law, within the limits prescribed by the constitution, were settled by the legislature when it was enacted. The court have only to place the statute and the constitution side by side, and say whether there is such a conflict between the two that they cannot stand together." Ladd, J., in Perry v. Keene, 56 N. H. 514, 530.

Being without brief or argument from the defendant, we are not advised upon what ground he asserts the unconstitutionality of the act. Certainly, it is not unconstitutional, merely because, in obedience to the mandate of the constitution, and for "the preservation of a free government," it interferes in some measure with the natural right of parental dominion. "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to secure the protection of others" (Bill of Rights, art. 3), and subject themselves to innumerable restrictions and regulations for the common good (State v. Express Co., 60 N. H. 219, 253, 254). But the surrender is not absolute. There are "certain natural, essential, and inherent rights"...