Cude v. State/Dissent Johnson
JIM JOHNSON, Associate Justice (dissenting). The only penalty which the legislature saw fit to provide for the failure to compel certain children to attend school is contained in Ark. Stat. Ann. § 80-1508 (Repl. 1960) as follows:
. . . "Each day such persons violate the provisions of this act shall constitute a separate offense, and the penalty for the violation of such provisions shall be a fine not to exceed ten dollars [$10.00] for each offense."
This penalty has been administered against appellants not because they have refused to comply with the compulsory attendance law but because they have refused to comply with an administrative regulation which resulted in the school authorities prohibiting their children's attendance.
It is well settled that penal statutes are to be strictly construed in favor of the accused and courts are not permitted to enlarge the punishment provided by the legislature either directly or by implication. State v. Simmons, 117. Ark. 159, 174 S. W. 238.
While much of the logic contained in the majority opinion from a sociological standpoint appears to be unanswerable, nevertheless from a legal standpoint I have found no way to escape the conclusion that the trial court and this court on trial de novo on appeal are enlarging the penalty for failure to comply with the compulsory attendance law to an extent never dreamed of by the proper lawmaking body. In the absence of legislation to the contrary, I as a judge am not willing now or ever to say as a matter of law that the failure to comply with this one simple regulation of school administrative authorities constitutes such neglect of children so as to warrant the state administering the cruel and unusual punishment of depriving such children of their natural parents and depriving the natural parents of their children.
Some consolation may be derived from the fact that the children in the case at bar will be offered back to their parents when the State Welfare Department carries out the orders of the court. Even so, the precedent set here that permits the taking of the children at all is the vice that opens a Pandora's box which may haunt this court for years to come. In my view, one of the forseeable spectres is the unfettered interference by the State Welfare Department in areas where it has no legal standing whatsoever. In its apparent zeal to protect the immuned from the unimmuned I believe the majority has given meaning to the word neglect which no amount of rationalization can justify. This is the door that has been left open. History reveals that once a door is open to an administrative agency that door is not easily closed. Whose children under what pretext will be taken next? Will they be kept forever? For the reasons stated, I respectfully dissent.