Gilbert K. Hutchens, of Carrollton, and Norbert Hutchens, of
Winchester,
(Jack A. Alfeld, of Carrollton, and Richard E. Mann, of Winchester, of
counsel) for appellants.
Ivan A. Elliott, Attorney General, and L. A. Mehrhoff, State's
Attorney,
of Carrollton (Henry L. Pate, of Tulsola, of counsel) for the People.
Mr.Justice CRAMPTON delivered the opinion of the court:
Defendants, the parents of a girl seven years of age, were convicted
by the county court of Greene County for violating the compulsory
school
attendance law. Ill.Rev.Stat. 1947, chap. 122, par. 26-1.
They
appeal directly to this court, contending (1) that the evidence is
insufficient
to sustain the conviction and (2) that the statute is unconstitutional.
Appellants are Seventh Day Adventists in religion, believing that the
child should not be educated in competition with other children because
it produces a pugnacious character, that the necessary atmosphere of
faith
in the Bible cannot be obtained in the public school, and that for the
first eight or ten years of a child's life the field or garden is the
best
schoolroom, the mother the best teacher, and nature the best lesson
book.
The father is a college graduate and a minister in his religion.
The mother has had two years of college and some training in pedagogy
and
educational psychology. The evidence consists solely of a
stipulation
providing, inter alia, that the child would be in the third grade if
she
went to the public school; that under the direction of a Seventh Day
Adventist
institution the mother has been teaching her third-grade work at home
for
five hours per day and in addition teaches her vocal music; that the
child
has regular hours for study and recitation; and that she shows
proficiency
comparable with average third-grade students. The subjects thus
being
taught and the textbooks from which the instruction is given are set
forth
in detail. Further provisions recite that appellants refuse to
send
their child to the public school, and that 'she does not attend and has
not attended a parochial or private school.'
The statute in question requires that 'Whoever has custody or control
of any child between the ages of seven and sixteen years shall cause
such
child to attend some public school in the district wherein the child
resides
* * *.' Provisions are then added exempting 'Any child attending
a private or a parochial school where children are taught the branches
of education taught to children of corresponding age and grade in the
public
schools, * * *.' Other provisions, not material here, make
exceptions
in cases of physical or mental disability, temporary absences for
cause,
and children over fourteen years of age who are necessarily employed.
Appellants contend the State has failed to prove the child
was not attending a 'private school' within the intention of the
legislature.
They argue that a school, in the ordinary meaning of the word, is a
place
where instruction is imparted to the young, that a number of persons
being
taught does not determine whether the place is a school, and that by
receiving
instruction in her home in the manner shown by the evidence the child
was
attending a private school. We agree with this construction of
the
statute. Compulsory education laws are enacted to enforce the
natural
obligation of parents to provide an education for their young, an
obligation
which corresponds to the parents' right of control over the
child.
Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 67 L.Ed.
1042.
The object is that all children shall be educated, not that they shall
be educated in any particular manner or place. See Commonwealth
v.
Roberts, 159 Mass. 372, 34 N.E. 402. Here, the child is being
taught
third-grade subjects, has regular hours for study and recitation, and
shows
a proficiency comparable with average third-grade students. There
is nothing in the record to indicate her education is in any way being
neglected. We think the term 'private school,' when read in the
light
of the mainfest object to be attained, includes the place and nature of
the instruction given to this child. The law is not made to
punish
those who provide their children with instruction equal or superior to
that obtainable in the public schools. It is made for the parent
who fails or refuses to properly educate his child.
Although the language of the present act has not previously
been construed by this court, the scope of similar statutes has been
considered
by courts of other jurisdictions. In State v. Peterman, 32
Ind.App.
665, 70 N.E. 550, 551, the father of a child being taught in the
private
home of the teacher was prosecuted for violation of a law requiring
children
to be sent 'to a public, private or parochial school.' Acts Ind.
1901, p. 470, s 1. The child attended the teacher's home
regularly
and was taught all the branches taught in the public schools. The
teacher did not advertise herself as keeping a private school, had no
regular
tuition fixed, and did not have or desire to have, any pupils other
than
the defendant's child. The sole question was whether the child
was
being sent to a private school, within the meaning of the statute. In
holding
that the parent had complied with the law the court observed: 'If a
parent
employs and brings into his residence a teacher for the purpose of
instructing
his child or children, and such instruction is given as the law
contemplates,
the meaning and spirit of the law have been fully complied with.
This would be the school of the child or children so educated, and
would
be as much a private school as if advertised and conducted as
such.
We do not think that the number of persons, whether one or many, make a
place where instruction is imparted any less or more a school.'
See,
also Wright v. State, 21 Okl.Cr. 430, 209 P. 179. Such
construction
of the words 'private school' is in accord with the policy of the
Illinois
statute.
In concluding that appellants have not been proved guilty of
violating the statute we do not imply that parents may, under a pretext
of instruction by a private tutor or by the parents themselves, evade
their
responsibility to educate their children. Those who prefer this
method
as a substitute for attendance at the public school have the burden of
showing that they have in good faith provided an adequate course of
instruction
in the prescribed branches of learning. This burden is not
satisfied
if the evidence fails to show a type of instruction and discipline
having
the required quality and character. No parent can be said to have
a right to deprive his child of educational advantages at least
commensurate
with the standards prescribed for the public schools, and any failure
to
provide such benefits is a matter of great concern to the courts.
The People maintain that under the stipulation appellants
admitted their child 'does not attend and has not attended a parochial
or private school,' and are therefore precluded from arguing that she
attended
a private school by receiving instruction in the home. This
contention
cannot be sustained. While stipulations of fact are always proper
and binding upon the parties, a stipulation as to the legal conclusions
arising from facts is inoperative. The court cannot be controlled
by agreement of counsel on a related question of law. It is the
province
of the court to determine what the legislature meant by the term
'private
school.' Indeed, the question whether the child attends such a
school
within the meaning of the statute is the very issue in the case.
If we accept the conclusions contained in the stipulation then there is
no question at all in the case as to whether appellants violated the
statute.
The parties themselves would have already determined that issue.
In so far as the stipulation set forth facts as to the place and source
of instruction and its nature and extent, it is, of course, binding
upon
the parties. But the legal effect of those facts in showing
attendance
at a private school within the contemplation of the legislature is a
question
of law for the decision of courts. Such matters cannot be
affected
by stipulation of the parties. National Bank of Colchester v.
Murphy,
384 Ill. 61, 50 N.E.2d 748.
As we have concluded that appellants' conviction cannot be
sustained
upon the evidence, it becomes unnecessary to consider the further
contention
that the statute violates the constitutional right of parents to direct
the education of their child.
Judgment reversed.
Mr. justice SIMPSON, dissenting:
I cannot agree with the majority opinion. To hold that the
appellants
were conducting a private school for the instruction of their daughter
in a manner which does not violate the applicable statute, may be
construed
by many parents as a license to keep their children at home instead of
sending them to school. This will do violence to the letter and
spirit
of the law. True, the opinion says in substance that parents may
not, under a pretext of instruction by a private tutor or by
themselves,
evade their responsibility to educate their children. But each
case
will necessarily depend upon its own peculiar facts. The school
law
will be no guide or rule to be followed. Who will be the judge of
the facts? What will be the position of the truant officer when
he
is told by parents that their child is receiving proper instruction at
home?
If the compulsory attendance school law is not enforced may not parents
withdraw their children from school at any time desired, even in the
middle
of a term or semester so as to teach them at home? Thereafter,
should
they change their minds, could they not again, under the law, return
their
children to the same school? Schools may thereby be disrupted and
certainly will lose the power, prestige and jurisdiction which is now
theirs.
In my opinion the appellants were properly found guilty, even though it
be conceded that they are qualified instructors. We should not
permit
so salutory a statute to be thwarted by the whim and caprice of the
many
who, I fear, will take advantage of the situation under authority of
this
case.
Under a statute similar to the one under consideration and under like
facts, parents were convicted in the State of Washington for failure to
comply with the statute. In an opinion upholding the conviction
the
court said in part: 'We have no doubt many parents are capable of
instructing
their own children, but to permit such parents to withdraw their
children
from the public schools, without permission from the superintendent of
schools, and to instruct them at home, would be to disrupt our common
school
system, and destroy its value to the state. * * * We do not
think that the giving of instruction by a parent to a child, conceding
the competency of the parent to fully instruct the child in all that is
taught in the public schools, is within the meaning of the law 'to
attend
a private school.' Such a requirement means more than home
instruction.'
State of Washington v. F. B. Connort, 69 Wash, 361, 124 P. 910, 911, 41
L.R.A.,N.S., 95. This case seems to me to be more in point and to
be sounder and better law than the authority cited in the main opinion.