State v. Freudenberg

| Wis. | Jun 12, 1917

MaRsitall, J.

Did appellant violate the law requiring her to attend the continuation school in the city of Cudahy for at least five hours per week for six months during her seventeenth year? As indicated by the statement, she attended for about two months, then neglected and refused to do so further, but there was ample time left for her to attend for the remaining four months if the law does not require continuous attendance for five hours each week for six consecutive months.

No reason is perceived why the law is not constitutional, therefore we have only to inquire what it means and whether appellant violated it.

The legislature,1 in its wisdom, has provided that a minor between the ages of sixteen and seventeen years, in the circumstances mentioned in the statute, shall attend continuation school as therein provided. The idea seems to be that a minor, during the seventeenth year, shall not take or be afforded employment away from home so as to preclude attending school as the statute provides; that if not in such employment there will be no efficient reason why such attendance shall not occur and the matter may well be left to the minor and the parents or guardian.

It seems, as the trial court held, that the statute requires continuous attendance for the prescribed number of hours per week in six consecutive months. While the record is not very clear in respect to the matter, it seems that the trial court considered that, subsequent to the commencement of the action, there was not time for appellant to attend the school for the requisite continuous period during the balance of the school year spanned by her seventeenth year, and that she habitually neglected and refused to attend after she had done so for about two months. She therefore violated the law, before the action was commenced, both in respect to such period of attendance and in being habitually truant. Both are covered by sec. 573 — 1 defining what shall constitute delinquency.

It is contended that the words of sec. 1728o — 2 “Any violation of this section shall be punished as is provided in the case of violation of the provisions of section 1728a of the statutes” do not refer to punishment of minors but of employers and are exclusive. True, those words seem to refer to employers as sec. 1728a. relates wholly to that subject. But appellant was charged with being a delinquent under sec. 573 — 1 and associate sections which define what shall be deemed delinquency and provide for dealing therewith as was done in this case.

It is last contended that sec. l728o — 2 must be read in connection with sec. 139a., Stats., which entitles the person having control of a child, in specified cases, to select the school such child shall attend. That section does not deal with minors between the ages of sixteen and seventeen.

Much of the evidence on the trial which was offered on behalf of appellant was to show she had such educational qualifications that she was not a proper subject for continuation school training and that, under the circumstances, it was greatly to her advantage to forego such training, pursue her vocation as a bookkeeper, and take advantage of the facilities afforded her for such instruction as would be of rise to her in such business. A pretty strong case was made in that regard. Probably, in tbe particular instance, it was to tbe advantage of tbe minor to lose tbe continuation school training and retain ber place as an employee, rather than to lose tbe latter in order to have tbe benefit of tbe former, but that does not seem to be a legal excuse for ber conduct. Tbe statute is mandatory, requiring girls circumstanced as she was, to attend continuation school or remain out of employment. It does not seem to admit of any exception. It is one of tbe numerous child-labor laws which tbe legislature has seen fit to place on tbe statute books for tbe purpose of promoting tbe welfare of minors and preparing them for adult activities. Some of such laws may seem rather extremo regulations. Doubtless a strict enforcement in some instances may be harmful, but courts must take tbe law as tbe legislature makes it so long as within constitutional limitations. They cannot make exceptions thereto to fit particular situations. To do that is within legislative authority. Tbe best way to deal with a law which seems unnecessarily restrictive of personal rights, though not so clearly destructive thereof as to reach outside of tbe boundary of legitimate regulation, is to apply it as legislatively intended and leave tbe responsibility, as regards changing it, to the lawmaking pcwer. There rests tbe sole responsibility for restrictive but constitutional enactments.

Tbe court did right in not discharging appellant because of tbe strong palliating circumstance of ber conduct. Had it possessed power to make an exception to tbe law in ber case, that would doubtless bave been done. It is left for tbe pardoning power to deal with such situations where tbe legislature has not made any provision therefor.

By the Court. — Tbe decision appealed from is affirmed, and tbe cause remanded for further proceedings according to law.