Page:Cude v. State, 237 Ark. 927 (1964).pdf/10

936 Without doubt, the foregoing act gives the probate court exclusive jurisdiction in all matters of guardianship, including the appointment of guardians; hence, whatever jurisdiction the juvenile court had to appoint guardians under the act creating such courts, as construed in the King case, is now vested in the probate court. Under the provisions of Article 7, Sec. 34 of the Constitution, "The judge of the probate court shall try all issues of law. and of facts arising in causes or proceedings within the jurisdiction of said court and therein pending."

The issue of whether the three children of appellants were neglected was before the probate court in the proceeding for the appointment of a guardian, and the court had jurisdiction to determine that fact. The evidence that the parents would not permit vaccination and thereby enable the children to attend school is sufficient to base a finding of neglect. In Re Marsh, 14 A. 2d 368; Morrison v. State, 252 S. W. 2d 97; Santos v. Goldstein, 227 N. Y. Supp. 2d 451.

Appellants argue that Archie Cude has been fined on three occasions for not sending the children to school, and that the State has no other remedy. This action was not instituted for the purpose of punishing Cude, but to enable the children to obtain a reasonable education. The fact that Cude has been fined for violation of the law in not sending his children to school in no way benefited the children. It did not bring about the desired result of the children being sent to school.

Appellants argue other points, all of which have been considered and found to be without merit.

Affirmed.

J, J., dissents.

J J, 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: