YOUNG, J.
This is an appeal from a final judgment of guilty in a case wherein appellant was charged with violating the Indiana compulsory school attendance law. Acts of 1921 General Assembly, ch. 132; §§ 28-501, et seq., Burns’ 1948 Replacement.
Appellant is a farmer and a member of the religious sect known as the Old Order of Amish Mennonites. He lived with his wife and 13 children in Green Township, Jay County, Indiana. It appears that all of the public schools in Green Township had been abandoned and school children of that township attended the schools of Penn Township which adjoined. Appellant’s son Joe, age 14 at the time of the proceedings herein considered, had graduated from the eighth grade of the Penn Township schools, and had been assigned to the high school at Pennville, which is located in Penn Township, Jay County, Indiana.
Appellant refused to send his son Joe to Pennville high school and thereupon an affidavit against him was filed in Jay Circuit Court, in which it was alleged in substance that the son Joseph Gingerich was a child 14 years of age and that appellant did “permit, compel or encourage” his son “to become and remain absent from the public schools of the district which the said son was by law required to attend.” No motion to quash the affidavit was ever filed, nor was any question as to its sufficiency ever raised by a motion in arrest of judgment, or otherwise, either in the trial court or here upon appeal. The appellant went to trial upon this affidavit without objection. Even if defective the defects were waived by failure to file a motion to quash or in arrest of judgment.
Scherer
v.
State
(1917), 187 Ind. 15, 16, 116 N. E. 52;
Robinson
v.
State
(1916), 185 Ind. 119, 123, 124; 113 N. E. 306;
Boos
v.
State
(1913), 181 Ind. 562, 564, 565, 105 N. E. 117. If the evidence offered to support the affidavit was sufficient to show an offense the shortcomings of the affidavit need not be taken into account by this court on its own motion on appeal.
They will be considered cured by the finding of guilty by the court. 41 Am. Jur., Pleading, § 404, p. 572.
The appellant contends that Green Township constitutes the school district wherein he and his son reside and that because there is no school provided in Green Township he cannot be prosecuted for failing to send his son elsewhere. He also contends that one of the tenets of his church is that children shall not receive higher education but shall discontinue their education at the conclusion of the eighth grade, and that to compel him to send his son to high school is an unreasonable interference with his right as a parent to direct the upbringing and education of his children and an unconstitutional invasion of his religious liberty.
Upon trial appellant was found guilty and fined $200 and sentenced to the Indiana State Farm for 60 days, which was the maximum punishment provided by the statute under which appellant was prosecuted, and which punishment appellant contends is excessive and in violation of the provision of the Indiana Constitution which prohibits excessive fines and cruel and unusual punishments. Constitution of Indiana, Art. 1, §16.
In Section 1 of the compulsory school attendance act, there appears the following language:
“Every county and every city having an average daily attendance of fifteen hundred (1,500) or more children of school age, shall constitute a separate attendance district. ...” § 28-501, Burns’ 1948 Replacement.
In Section 5 of said Act there appears the following language:
“Unless otherwise provided herein, every child between the ages of seven and sixteen years shall attend public school, or other school taught in the English language which is open to the inspection
of local and state attendance and school officers; and such child shall attend such school each year during the entire time the public schools are in session in
the school district in which such child resides. . .
.” (Our italics.) § 28-505, Burns’ 1948 Repl.
In section 8 of Act there appears the following language:
“Every parent and guardian of any minor child or ward shall be held legally responsible for any violation of this act by such child or ward, unless such parent or guardian is not a party to such violation. ...” § 28-508, Burns’ 1948 Repl.
Section 17 of the Act (§28-517, Burns’ 1948 Repl.) provides that any person who shall compel or encourage any minor to violate any of the provisions of the act above set out shall, upon conviction, be fined not less than $10 nor more than $200 or be imprisoned in the county jail not exceeding 60 days or both.
Our first task is to determine what is meant by the words “the school district in which such child resides,” italicized in the above quotation from section 5 of the act. Appellant contends that the township constitutes the school district referred to and that, there being no schools in session there, he was not required to send his child to school. His counsel point to statutes which make townships both civil and school corporate entities, § 28-2401, Burns’ 1943 Repl., and they also contend that the entire township, being a corporate school entity, becomes the school district referred to in said section 5, and cite
Miller
v.
State
(1921), 77 Ind. App. 611, 613, 134 N. E. 209. In that case a child had completed the eighth grade of the elementary school in the township where the child resided. Apparently the elementary school district was smaller than the township and the question before the court was whether
or not the child could be compelled to attend a high school in the township where it resided which was outside the elementary school district in which the child resided. The Appellate Court held that where there is a high school in a township the township is the school district for high school purposes and that because the high school was not located in the elementary school district the parents of the child were not excused from sending it to a high school elsewhere in the township. The court failed to consider the language of section 1 of the compulsory school attendance act of 1921, which makes the county the school attendance district, but the conclusion reached is consistent with what we hold in the case before us, viz., that there may be different school districts for different school purposes. It recognized there was one district for elementary school purposes and another for high school purposes.
In determining what constitutes a school district for the purposes of the case before us, we must keep in mind that there are two phases of our school laws. One is the phase by which schools are provided and children are assigned to them; the other is the phase by which school attendance is compelled. These two phases of school legislation are separate and distinct. Our compulsory school attendance law imposes duties and obligations upon parents to keep children between the ages of seven and sixteen in school. It provides the mechanics for the enforcement of such duty.
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YOUNG, J.
This is an appeal from a final judgment of guilty in a case wherein appellant was charged with violating the Indiana compulsory school attendance law. Acts of 1921 General Assembly, ch. 132; §§ 28-501, et seq., Burns’ 1948 Replacement.
Appellant is a farmer and a member of the religious sect known as the Old Order of Amish Mennonites. He lived with his wife and 13 children in Green Township, Jay County, Indiana. It appears that all of the public schools in Green Township had been abandoned and school children of that township attended the schools of Penn Township which adjoined. Appellant’s son Joe, age 14 at the time of the proceedings herein considered, had graduated from the eighth grade of the Penn Township schools, and had been assigned to the high school at Pennville, which is located in Penn Township, Jay County, Indiana.
Appellant refused to send his son Joe to Pennville high school and thereupon an affidavit against him was filed in Jay Circuit Court, in which it was alleged in substance that the son Joseph Gingerich was a child 14 years of age and that appellant did “permit, compel or encourage” his son “to become and remain absent from the public schools of the district which the said son was by law required to attend.” No motion to quash the affidavit was ever filed, nor was any question as to its sufficiency ever raised by a motion in arrest of judgment, or otherwise, either in the trial court or here upon appeal. The appellant went to trial upon this affidavit without objection. Even if defective the defects were waived by failure to file a motion to quash or in arrest of judgment.
Scherer
v.
State
(1917), 187 Ind. 15, 16, 116 N. E. 52;
Robinson
v.
State
(1916), 185 Ind. 119, 123, 124; 113 N. E. 306;
Boos
v.
State
(1913), 181 Ind. 562, 564, 565, 105 N. E. 117. If the evidence offered to support the affidavit was sufficient to show an offense the shortcomings of the affidavit need not be taken into account by this court on its own motion on appeal.
They will be considered cured by the finding of guilty by the court. 41 Am. Jur., Pleading, § 404, p. 572.
The appellant contends that Green Township constitutes the school district wherein he and his son reside and that because there is no school provided in Green Township he cannot be prosecuted for failing to send his son elsewhere. He also contends that one of the tenets of his church is that children shall not receive higher education but shall discontinue their education at the conclusion of the eighth grade, and that to compel him to send his son to high school is an unreasonable interference with his right as a parent to direct the upbringing and education of his children and an unconstitutional invasion of his religious liberty.
Upon trial appellant was found guilty and fined $200 and sentenced to the Indiana State Farm for 60 days, which was the maximum punishment provided by the statute under which appellant was prosecuted, and which punishment appellant contends is excessive and in violation of the provision of the Indiana Constitution which prohibits excessive fines and cruel and unusual punishments. Constitution of Indiana, Art. 1, §16.
In Section 1 of the compulsory school attendance act, there appears the following language:
“Every county and every city having an average daily attendance of fifteen hundred (1,500) or more children of school age, shall constitute a separate attendance district. ...” § 28-501, Burns’ 1948 Replacement.
In Section 5 of said Act there appears the following language:
“Unless otherwise provided herein, every child between the ages of seven and sixteen years shall attend public school, or other school taught in the English language which is open to the inspection
of local and state attendance and school officers; and such child shall attend such school each year during the entire time the public schools are in session in
the school district in which such child resides. . .
.” (Our italics.) § 28-505, Burns’ 1948 Repl.
In section 8 of Act there appears the following language:
“Every parent and guardian of any minor child or ward shall be held legally responsible for any violation of this act by such child or ward, unless such parent or guardian is not a party to such violation. ...” § 28-508, Burns’ 1948 Repl.
Section 17 of the Act (§28-517, Burns’ 1948 Repl.) provides that any person who shall compel or encourage any minor to violate any of the provisions of the act above set out shall, upon conviction, be fined not less than $10 nor more than $200 or be imprisoned in the county jail not exceeding 60 days or both.
Our first task is to determine what is meant by the words “the school district in which such child resides,” italicized in the above quotation from section 5 of the act. Appellant contends that the township constitutes the school district referred to and that, there being no schools in session there, he was not required to send his child to school. His counsel point to statutes which make townships both civil and school corporate entities, § 28-2401, Burns’ 1943 Repl., and they also contend that the entire township, being a corporate school entity, becomes the school district referred to in said section 5, and cite
Miller
v.
State
(1921), 77 Ind. App. 611, 613, 134 N. E. 209. In that case a child had completed the eighth grade of the elementary school in the township where the child resided. Apparently the elementary school district was smaller than the township and the question before the court was whether
or not the child could be compelled to attend a high school in the township where it resided which was outside the elementary school district in which the child resided. The Appellate Court held that where there is a high school in a township the township is the school district for high school purposes and that because the high school was not located in the elementary school district the parents of the child were not excused from sending it to a high school elsewhere in the township. The court failed to consider the language of section 1 of the compulsory school attendance act of 1921, which makes the county the school attendance district, but the conclusion reached is consistent with what we hold in the case before us, viz., that there may be different school districts for different school purposes. It recognized there was one district for elementary school purposes and another for high school purposes.
In determining what constitutes a school district for the purposes of the case before us, we must keep in mind that there are two phases of our school laws. One is the phase by which schools are provided and children are assigned to them; the other is the phase by which school attendance is compelled. These two phases of school legislation are separate and distinct. Our compulsory school attendance law imposes duties and obligations upon parents to keep children between the ages of seven and sixteen in school. It provides the mechanics for the enforcement of such duty. It contains nothing with reference to the establishment of schools or the designation of schools to which any child shall be sent. A close reading of section 5 of the 1921 Act will disclose that the duty is to send the child to
some
public or
other
school which is subject to inspection by local and state attendance and school
officers. It does not require that it be sent to a school designated by the proper authority or to any particular school. The school may be in the school district in which the child resides or it may be outside the school district in which the child resides, provided it is subject to inspection by attendance officers, as aforesaid.
As above stated, this Act of 1921 has to do only with attendance at school and has nothing to do with the establishment of schools or assignment of pupils to schools that are established. It seems natural and logical, therefore, to look to the school attendance law, and not to laws having to do with the establishment of schools and the assignment of pupils to them, for a definition of “school district,” as used in section 5 thereof, and we find that definition in Section 1 of the Act, wherein it is stated in bald, direct language, “That every county . . . shall constitute a separate attendance district. . . .” The district referred to in Section 1 is a school attendance district and inasmuch as the whole act is directed exclusively to attendance, the legislature must have had in mind the attendance district defined in Section 1 when it used the words “school district” in Section 5.
It seems to us, therefore, that, while for some purposes the township or less may be the school unit, for attendance enforcement purposes the unit is the county, and the school district referred to in Section 5 of the 1921 Act is the county. The evidence was clear and uncontradictory that in the county in which the child, Joe, resided there were in session both elementary and high schools during the period that Joe was kept out of school by his parents. Hence, we think that there was evidence to sustain the verdict of the jury that Joseph Gingerich was 14 years of age, and that he remained out of school at a time
when public schools in the county in which he resided were in session and that the appellant permitted, compelled and encouraged his son to remain out of school during such period.
This leaves the. question of the constitutionality of the compulsory school attendance law. This question, under the decisions of this court, cannot be presented to this court upon an assignment of error that the trial court erred in overruling a motion for a new trial on the ground that the verdict was contrary to law.
Ellwanger
v.
State
(1931), 203 Ind. 307, 311, and cases cited, 189 N. E. 287;
Cox
v.
State
(1931), 203 Ind. 544, 550, 551, 181 N. E. 469;
De LaTour v
.
State
(1929), 201 Ind. 14, 16, 165 N. E. 753. In these cases it is held that before the constitutionality of a statute can be presented to this court in a criminal case it must first have been presented to the trial court by a motion to quash or a motion in arrest of judgment.
Notwithstanding the cases above cited, appellant contends that when a constitutional question is pertinent to the record and is presented by counsel in good faith, supported by argument, the court should decide the question, citing
Dowell
v.
Talbot Paving Company
(1894), 138 Ind. 675, 686, 38 N. E. 389. There is conflict between this case and the later cases cited above by us.
It seems to us that sound reason is upon the side of the latter cases and that we should follow them rather than the Dowell case cited by appellant, which must be deemed overruled so far as it is inconsistent with the later cases.
People’s, etc., Trust Co., Exr.,
v.
Mills
(1922), 193 Ind. 131, 134, 139 N. E. 145. Therefore, we hold again that where a constitutional question has not been presented to the trial
court in a criminal case by motion to quash or in arrest of judgment, it cannot be presented here upon the ground that the verdict or finding is contrary to law.
There remains the contention of the appellant that the punishment meted out to him is so excessive, harsh and vindictive as to be a violation of Section 16, Art. 1 of the Constitution of Indiana, which provides that excessive fines shall not be imposed and cruel and unusual punishments shall not be inflicted and that all penalties shall be proportioned to the nature of the offense.
Section 16 of Article 1 of the Constitution of Indiana is a limitation on the acts of the legislature and is not a limitation on the discretion of a court or jury acting within the frame work of the statute and where a punishment imposed is within the statute governing the offense charged this court cannot interfere on account of its severity.
Blue
v.
State
(1946), 224 Ind. 394, 400, and cases cited, 67 N. E. 2d 377;
Ledgerwood
v.
State
(1892), 134 Ind. 81, 91, 33 N. E. 631;
McCulley
v.
State
(1878), 62 Ind. 428, 436;
Murphy
v.
State
(1884), 97 Ind. 579, 581;
Shields
v.
State
(1897), 149 Ind. 395, 412, 49 N. E. 351;
Cox
v.
State
(1932), 203 Ind. 544, 557, 177 N. E. 898.
Under the law as it exists in Indiana, punishment within the terms of the statute cannot be challenged on appeal as too severe. If the punishment is excessive the only remedy is by resort to executive clemency.
Judgment affirmed.
Gilkison, J., dissents.
Emmert, J., reserves decision and the announcement of his vote until a later time.
Note.—Reported in 83 N. E. 2d 47.