Defendants were convicted of violating section 16601 of the Education Code in that they neglected and refused to send their three children to a public school, and each was sentenced to pay a fine of $10 on each of three counts. The section in question reads as follows: “Each parent, guardian, or other person having control or charge of any child between the ages of eight and 16 years, not exempted under the provisions of this chapter, shall send the child to the public full-time day school for the full time for which the public schools of the city, city and county, or school district in which the child resides are in session.”
Section 16621 of the same code provides: “The classes of children described in this article shall be exempted by the
Defendants first contend that the complaint here does not charge a public offense for the reason that it does not allege that the children were not within any of the classes exempted from the requirement of attendance at public school by the provisions of sections 16622 to 16627. We do not agree. As said by this court in People v. Fowler, 32 Cal.App.2d Supp. 737, 742 [84 P.2d 326], the general rule is that “it is not necessary in a criminal charge to negative an exception or proviso which is not a part of the definition or description of the offense. (Citing cases.) Of every complaint which does not negative such a proviso or exception, it is possible to say (as do the defendants here) that all the facts alleged in it may be true and still the defendant may be entirely innocent of crime. But such complaints are, nevertheless, held sufficient by the authorities just referred to and many others which could be cited.” Here the exemptions from, or exceptions to, section 16601, found in the subsequent sections to which reference has been made, do not constitute part of the definition or description of the offense, which is the failure of parents to send their children to a public school.
The question here, therefore, may be narrowed down as to whether or not it is within the competency of the state to require parents to place their children in public schools or, in the alternative, a private school meeting certain prescribed conditions, or that the children be instructed by a private tutor or other person possessing qualifications and in the manner prescribed by section 16625. We believe that the answer must be in the affirmative. Without unduly extending this opinion by a detailed reference to the many cases dealing with statutes of this character, most of which are collated in the annotations in 14 A.L.R.2d 1364, 39 A.L.R. 477, 41 L.R.A.N.S. 95, we think the reasons for this conclusion are well stated in State v. Hoyt (1929), 84 N.H. 38 [146
"The matters so enumerated include all that are involved in this litigation. The power ‘reasonably to regulate,’ to require attendance, good character of teachers, studies to be taught, and those to be prohibited, all look to laying down rules for future conduct. As the statute does not exceed the exercise of these powers, it is held to be constitutional.
“ In the adjustment of the parent’s right to choose the manner of his children’s education, and the impinging right of the state to insist that certain education be furnished and supervised, the rule of reasonable conduct upon the part of each towards the other is to be applied. The state must bear the burden of reasonable supervision, and the parent must offer educational facilities which do not require unreasonable supervision.
" If the parent undertakes to make use of units of education so small, or facilities of such doubtful quality, that supervision thereof would impose an unreasonable burden upon the state, he offends against the reasonable provisions for schools which can be supervised without unreasonable expense. The state may require, not only that educational facilities be supplied, but also that they be so supplied that the facts in relation ^hereto can be ascertained, and proper direction thereof maintained, without unreasonable cost to the state. Anything /less than this would take from the state
It is not without significance that, although it has been said that “only eleven of the forty-eight states permit by statute that instruction may be given at home by their parent or tutor,” and “such home instruction moreover is specifically conditioned except in two states” (Parental Right in Educational Law, Loughery, Catholic University of America Press, 1952), we have been unable to find a single case in which it has been held that so-called compulsory attendance statutes are rendered unconstitutional and void merely by reason of a failure to recognize home instruction as an alternative to attendance in the public schools.
Nor do we see any merit in the claim of defendants that the statute under consideration is unreasonable or arbitrary in that, while exempting private schools, it does not require teachers therein to “hold a valid state credential for the grade taught,” but a private tutor or other person in order to be exempted under section 16625 must possess such a certificate. If, as we have seen, the state might have refused to grant an exemption in the ease of children being instructed at home by their parents or a private tutor without rendering the statute vulnerable to the charge of unconstitutionality, we see no reason why objection can be raised to a statute which, while granting an exemption in such eases, conditions the same by requiring such parents or tutors to possess certain qualifications even if these be stricter than those required of teachers in private schools. In the light of this, defendants may not be heard to assert that they have been discriminated against because the Legislature conditioned the exemption granted to private instruction outside of a public or private school by requiring persons so undertaking to teach outside of such schools to possess qualifications different from those prescribed for teachers in private schools. Were it otherwise, however, it may not be said that there is not a reasonable basis for the distinction in question. The most obvious reason for such difference in treatment is that pointed out in Hoyt v. State, supra, namely, the difficulty in supervising without unreasonable expense a host of individuals, widely scattered, who might undertake to instruct individual children in their homes as compared with the less difficult and expensive supervision of teachers in organized private schools. Also the Legislature might reasonably have concluded that teachers in private schools would be under direct super
We likewise fail to find any merit in defendants’ claim that they come within the classification of a “private school” within the meaning of section 16624 and hence are exempted from the operation of the statute. The contrary was held in State v. Counort (1912), 69 Wash. 361 [124 P. 910, 911, 41 L.R.A.N.S. 95]; State v. Will (1916), 99 Kan. 167 [160 P. 1023] ; State v. Hoyt, supra. [12] Moreover, a mere reading of sections 16624 and 16625 clearly indicates that the Legislature intended to distinguish between private schools, upon the one hand, and home instruction by a private tutor or other person, on the other. If a “private school” as that term is used in section 16624 necessarily comprehends a parent or private tutor instructing at home, there was no necessity to make specific provision exempting the latter. We are not unmindful of the fact that a different conclusion was reached in People v. Levisen, 404 111. 574 [90 N.E.2d 213, 14 A.L.R.2d 1364], The statute there, however, unlike our own, while exempting private and parochial schools, did not grant such exemption to instruction at home or by private tutor. Thus it did not upon its face indicate a legislative intent to distinguish between the two. Aside from this, the opinion is far from persuasive. In a thoughtful article discussing this case, in 18 University of Chicago Law Review, page 105, it is said: “The. majority’s construction of the statute is unsupported not only by ordinary connotations of the term ‘private school’ but also by the legislative history of the compulsory attendance law. The original act did provide for home instruction, but subsequent amendments clearly indicate an intent to repeal this exception to the public school attendance provision.”
For like reasons, we find o'urselves unable to agree with the similar holding in State v. Peterman (1904), 32 Ind.App. 665 [70 N.E. 550], upon which the holding in the Levisen case is predicated. ^
Thus we are brought to the final contention of the defendants that inasmuch as they claim that the instruction given to their children is as good or better than that obtainable in a public or private school or through the medium of a
“If the defendants’ allegations that ‘said child was taught by a private tutor in his own home’ could be construed to set forth attendance at a private school (see State v. Counort, 69 Wash. 361 [124 P. 910, 41 L.E.A.N.S. 95]), there is no allegation that the enterprise has been designated as a private school ‘to be treated as approved within the meaning of this title. ’ P.L.c.116, sec. 11, par. XXVIII. Not having been approved as required by the statute, it is not ‘an approved private school.’ P.L.c.118, sec. 1.
“Decisions from other jurisdictions, which are based upon statutes making the attainment of certain proficiency by the child, or furnishing a certain amount of instruction, an excuse for nonattendance at the public school (Commonwealth v. Roberts, 159 Mass. 372 [34 N.E. 402] ; Bevan v. Shears (1911), 2 K.B. 936), are not applicable here, because our statute makes no such exception. . . .
“Varying the statement a little, the argument is advanced that the only object of the statute is to compel a certain amount of proper instruction and study, and that proof thereof is an answer to the charge in any event. This claim fails to take into account the true nature of the charge. While the ultimate object of the statute is the education of the child, means to assure the attainment of that end may be adopted by the state, and may be enforced by the imposition of penalties for violating the regulations made. As stated earlier in this opinion, the state is entitled to establish a system whereby it can be known, by reasonable means, that the required teaching is being done.”
The judgment and order denying motion for a new trial are affirmed. The appeals from the other orders are dismissed.
Shaw, P. J., and Bishop, J., concurred.