Bowman v. Telegraph Company.

[Vol. 23 (N.S.)

The plaintiff has a right to prevent the telegraph company from placing a new and additional burden upon his land and the state can not by its order give to such company the right to appropriate the plaintiff's land without compensation.

Whatever grant of right may be given to the telegraph company as against the public, no right can be given to it as against an individual. Before the telegraph company can possess the right to interfere with the right of landowner in the highway it must acquire that right in some way known to the law.

It may be said that the telegraph company does not seek to appropriate any of the property of the plaintiff. The term "property" as used in the constitution should have such liberal construction as to include every valuable interest which can be enjoyed as property and which is recognized as such. The right of the landowner to the use of the highway, subject to the use of the public, is property and as such is protected by the constitution, and any attempt by a private corporation to invade that right by the erection of its poles which are in any appreciable degree interfering with the full enjoyment of the landowner in the road is a taking of such property and must be upon the terms prescribed by the constitution. The matter involves the question of the right of the landowner to enjoy his property and the court is not required to determine whether the impairment of such right will be much or little. If it is appreciable in character and amount the plaintiff is entitled to relief.

Prayer for permanent injunction granted.

LIABILITY FOR FAILURE TO GIVE CHILDREN OF SCHOOL AGE PROPER EDUCATIONAL ADVANTAGES.

Common Pleas Court of Hamilton County,

Division of Domestic Relations.

IN RE MARTHA G. HARGY AND HARRY E. HARGY, JR.

Decided, December, 1920.

Parent and Child-Extent of the Education which Must be Provided for Children-Right of School Authorities to Require Vaccination— Nature of the Offense Involved in Refusal to Permit Children to be Vaccinated with Consequent Deprivation of School Advantages. 1. The court construes Section 1645, General Code, as requiring parents to provide their children with a proper education, which means an education subbstantially equivalent to that furnished by the public schools.

2. Boards of education may exclude children from the public schools for non compliance with existing rules and regulations relating to vaccination.

3. While the parents of children thus excluded are not liable to prosecution under the compulsory education act, such exclusion can not be pleaded as an excuse for failure to provide their children with the education required by the statute. Children so deprived of school advantages may be declared "dependent," and any person causing or contributing to such dependency is liable to prosecution therefor.

John Weinig and Harry R. Weber, counsel for petitioner. Nelson Cramer, Julius Samuels and Arthur Gordon, counsel for Harry E. Hargy, Sr.

HOFFMAN, C. W., J.

On December 2, 1920, a petition was filed in the Juvenile Court by a resident and citizen of Hamilton county, charging Martha G. Hargy and Harry E. Hargy, Jr., minors of the age of eight and ten years, respectively, with dependency; in that by reason of the neglect and conduct of their father, Harry E. Hargy, Sr., they are prevented from receiving a proper education.

This action is brought under that provision of the juvenile court act, designated in the General Code as Section 1645. This section is as follows:

"Dependent child defined. For the purpose of this chapter, the words 'dependent child' shall mean any child under eighteen years who is dependent upon the public for support; or who is homeless or abandoned; or who has not proper parental care or guardianship; or who begs or receives alms; or who is given away or disposed of in any employment, service, exhibition, occupation or vocation contrary to any law of this state; who is found living in a house of ill fame, or with any vicious or disreputable persons or whose home, by reason of neglect, cruelty or depravity on the part of his parent, step-parent, guardian or other person in whose care it may be, is an unfit place for such child; or who is prevented from receiving a proper education because of the conduct or neglect of its parents, step-parent, guardian or other persons in whose care it may be; or whose environment is such as to warrant the state, in the interest of the child in assuming its guardianship." (99 O. L., 193, as amended May 27, 1915.)

The particular clause of the section under which the children mentioned in the petition are charged as being dependents is that which defines a dependent child as one "who is prevented from receiving a proper education because of the conduct or neglect of its parents, step-parent, guardian or other person in whose care it may be.

That the state is the ultimate guardian of all children within its borders who need aid, protection, care, training and education, and that the state as parens patriae can assume the duties that have been neglected by the parents or natural guardians is a principle grounded in early English law and recognized in all chancery courts, both English and American, through the intervening years to the present day.

The common law enumerated the duties of parents toward children as being that of maintenance, protection and education, although the duty of providing an education was considered usually as a moral rather than a legal obligation. The sanctions, however, upon which these duties and obligations of parents were supposed to be founded were so slight that previous

to the enactment of the juvenile court codes, there was "no effective control on the part of the community over the exercise of the parental rights and the performance of parental duties," and children were deprived of maintenance, support and especially education, when their interests were in conflict with the individualistic ideas and interests of their parents.

That the state has the power to provide that if the parents neglect to give their children a proper education, they may be superseded by the parens patriae or common guardian of the community, is disclosed in the opinion of Chief Justice Gibson, in the case of Ex Parte Crouse, 4 Wharton, 9 (Pa.) (1838):

"May not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virture and knowledge of its members, and that of strict right, the business of education belongs to it. That parents are ordinarily entrusted with it is because it can seldom be put into better hands; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held as they obviously are at its sufferance? The right of parental control is a natural, but not an inalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation."

Statutes similar to that of Section 1645 of the General Code and now under consideration have been enacted in a majority of the states of the Union and their validity and constitutionality have been confirmed by the courts.

In an opinion of the Supreme Court of Pennsylvania it is stated that:

"Every statute which is designed to give protection, care and training to children, as a needed substitute for parental authority, and performance of parental duty, is but a recognition of the duty of the state as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated." Commonwealth v. Fisher, 213 Pa. St., 48.

In the case of Ex Parte Sharp, 15 Idaho, 120, the Supreme Court of Idaho, in referring to the juvenile court act, says:

"Its object is to confer a benefit both upon the child and the community in the way of surrounding the child with better and more elevating influences, and of educating and training him in the direction of good citizenship, and thereby saving him to society, and adding a good and useful citizen to the community.

"It would be carrying the protection of 'inalienable rights' guaranteed by the Constitution, a long way to say that that guaranty extends to a free and unlimited exercise of the whims, caprices or proclivities of either a child or its parents or guardians, for idleness, ignorance, crime indigence, or any kindred dispositions or inclinations."

In the opinion in the case of In Re Janurewski, 196 Federal Reporter, 123, the statement of Judge Sater in respect to Section 1644 of the General Code defining a delinquent child, and also in respect to the purpose and object of the juvenile court act, is applicable as well to Section 1645 relating to dependent children:

"The purpose of the statute is to save minors under the age of seventeen years from prosecution and conviction on charges of misdemeanors and crime, and to relieve them from the consequent stigma attached thereto; to guard and protect them against themselves and evil minded persons surrounding them; to protect and train them physically, mentally and morally. It seeks to benefit not only the child, but the community also, by surrounding the child with better and more elevating influences and training it in all that counts for good citizenship and usefulness as a member of society. Under it, the state, which through its appropriate organs is the guardian of the children within its borders, assumes the custody of the child, imposes wholesome restraints, and performs parental duties, and at a time when the child is not entitled either by the laws of nature or of the state to absolute freedom, but is subjected to the restraint and custody of a natural or legally constituted guardian to whom it owes obedience and subjection. It is of the same nature as statutes which authorize compulsory education of children, the binding of them out during minority, the appointment of guardians and trustees to take charge of the property of those who are incapable of managing their own affairs, the confinement of the insane, and the like. The welfare of society requires and justifies such enactments. The statute is neither criminal nor penal in its nature, but an administrative police regulation."