State Ex Rel. Minot v. Gronna

[Cr. 248] No. DAKOTA, EX REL.

THE OF NORTH STATE CITY OF MINOT, AL., ET Petitioners v. HONORABLE A. J. THE JUDGE OF DISTRICT GRONNA, COURT, WARD COUNTY, NORTH IN AND DAKOTA, STATE OF FOR FIFTH THE JUDICIAL THE DISTRICT OF STATE Respondents. ET DAKOTA, AL., OF NORTH (59 514) NW2d -674 5, 1953. Eehearing 20,1953

Opinion denied June filed June petitioners. é for McCutcheon, Bosard respondents. Nedrud,

Duane R. for City of of Police The of the Minot, J. Chief Christianson, city city applied Magistrate to this have and the Police of supervisory annul the action of Court for a to review and writ Judge of Honorable A. of the District Court Ward Gronna, J. petition County, upon issuing corpus of writs of habeas petition Arthur Helland Smith-for such of Thomas making discharging releasing the writ orders and the of custody Arthur from the of said Helland and-Thomas Smith City the Chief of Police of Minot. undisputed. August evening

The material In the facts 11, 1952, Arthur Helland and Thomas were arrested Smith n police department City a officer Minot charged disorderly an offense the ordi under conduct, City morning August nances the' of Minot. 12, 1952, On police brought having charge officer them in them before magistrate police City of Minot. police magistrate

The entries the docket recite that day August, complaints on the 11th verified were filed against magistrate before such Arthur Helland and against complaint against each them Smith; Thomas alleged day August, “that 11th on the the above named Disorderly defendant did commit the offense of Conduct viola- Chapter tion of No. 9 No. Revised Ordinances Section City of Minot. issued and Warrant delivered Police Defendant, August Officer of said 12, 1952, service. be- custody. complaint fore me read to defendant and guilty. rights. plead informed of Defendant Where- his lie was upon adjudged that said defendant confine it is ordered and days period City city of 10 ND, in the of Minot, in the Jail the pay taxed and the of this action at of costs $5, and fine payment costs, fine and of said and default of'the $5, sum of City City jail imprisoned ND, at of Minot, in the the that he any public public days at on the streets or for a term of 10 labor City commencing at 9:00 -o’clockin the of said Minot, works- Aug. day that he stand committed of and forenoon this City custody of of Minot, ND, of Police the to of Chief complied legally until he dis- with or until this charged.” sentence pronounced judgments had been After such sentences at once in- Thomas Smith were Arthur Helland and rendered City City of Minot. On that same in the Jail of carcerated day Judge petitioned G-ronna, the Honorable A. J. of them each County, of for writ habeas of the District Court of Ward hearings corpus. had before issued the said Writs were day. hearings Judge on that On such was established G-ronna petitioners, dispute the said Arthur Helland that each of without only years age. It Smith, was sixteen was and Thomas they Thomas Smith that Arthur Helland and contention said magistrate illegally police restrained; that the was without were judgment imprisonment against authority render either that the over both the defendants them and County. court of said Ward vested was police City the chief of contended that under the Minot and of North of Sec 113 Constitution Dakota authority pro- police magistrate vested with judgment against and render each the de- nounce sentence police magistrate had court held that fendants. The district against authority try Arthur Helland and no cases pronounce judgment and render and to Thomas Smith sentence consequently jail they imprisonment city were in the deprived liberty imprisoned illegally of their and issued discharge commanding police them chief of from orders custody. Thereupon City Minot, chief police magistrate applied to-this Court

679; superintending-control of; its exercise of over inferior in 86 vested courts the Constitution of State. Johnson ex rel. v. 75 ND 27 Broderick, State NW2d 849. pursuant And the matter came on be heard before this Court why by Judge to an order to show cause made orders Gronna directing discharge Arthur of Helland Thomas Smith not should set aside. The district court made its return, arguments presented.in were behalf of the relators and behalf Upon hearing of.Arthur Helland and Thomas Smith. such there s proceeding of was submitted record had before the police magistrate and there was also an affidavit of submitted magistrate day it is “That on 12th wherein said: , August Arthur Helland, Thomas Smith and Charles appeared Magistrate pursuant Miller before said Police for magistrate complaint Complaints mal filed with such which- they charged Disorderly each of them were Conduct, (cid:127) breaking plate glass Goldberg to-wit: The window in the a Company City Furniture in the that Minot; Charles Miller alleged (20) twenty years-of age, to be was Arthur-Helland years (16) (16) -years Sixteen and Thomas Smith sixteen age; separately charged that each of the said Defendants were separately rights and each was advised of his under the law and thereupon pleaded thereafter each said Defendants adjudged guilty charge each to the term said was serve a days City (10) paying a Jail, of ten in the fine of Five Dollars ($5.00) ($5.00); and costs Five Dollars in default sum payment fine and that costs the said Defendants days (10) and each them term ten would serve in the City Jail.” originally of this state was enacted

Chapter originally 177, Laws “As introduced, the bill jurisdiction creating delinquent juveniles court, conferred upon county passage, court. In the course of the bill was amended as to s.o continue this in the district court, sitting acting (See court.” State ex rel. Neville p 556.) Overby) change ND at at 304, NW Such objections originally made after had- been made bill as ground Avritten on the bill called exercise of equity powers, county that the court was not vested with such powers powers that such but wore vested the district court. later This view was vindicated the decision of this Court in Mead v. First National Bank of 24 ND Lansford, NW provi- 365. In the in that decision case this held Court that the sion Sec 111 of the Constitution of North Dakota that “said county court shall have concurrent with the dis- operate trict in all courts civil actions” did not to confer county jurisdiction jurisdiction equity court with increased holding epitomized syllabus cases. The in the case is in the which reads as follows:

“Section 111 of the state Constitution held, and construed, county courts increased are not vested of equity powers, but that their actions is restricted to cognizable formerly controversy at law wherein the amount in (Italics supplied) $1,000.” does not exceed laws, In the of course the codification of the of this state (NDRC s 1943), juvenile court law re wa rewritten and Chapter enacted as 1943, Laws 212. The bill enactment for the was by introduced the Senate Kehoe, and Senators Striebel the Senate members of the Interim on Revi Commission Code Legislative Assembly. sion which had been created See p Senate Concurrent Resolution et H, 1941, Senate Journal seq; pp Laws of North Dakota 1941, 608-609; Journal Senate 1941, 922. The measure was entitled “A Bill for an Act Relat ing to the Juvenile Court and the Protection, Control, Cus tody Chapter amending re-enacting of Children; 23 of consisting the Code of Criminal of Procedure, Sections Compiled inclusive, to Laws North of Dakota 1913; 11412a, 11428a2, Sections 11428a4 and 11428al, 11428a3, Supplement Compiled 11428a5of the to the Laws of North Chapter Dakota; 113 of the Laws of 1929.” The measure general repeal parts contained “all clause that acts and hereby chapter in conflict Acts with the of this repealed.” Chapter Said Laws embodied Chapter Dakota North chapter Revised of 1943 and such Codes 27-16 present juvenile constitutes the court law state. of this provides: law Such court of the shall

“The district several counties this state original jurisdiction provi coming in all within the cases have chapter. The this court for convenience shall be called sions possible, juvenile ‘the As far held court.’ said shall be at 27-1601. chambers.” NDRC provides appointment judges of each

judicial juvenile powers district and the commissioners (27-1602); compensation such commissioners for (27-1603); reports juvenile commissioners commissioners (27-1604); kept by juvenile for records commissioner (27-1605); that the clerk of the district court shall be clerk keep papers findings including all court, final shall enter all orders in a book known as the papers subject record, and that the records and shall' be to ex- judges the clerk, amination of the court and the but that others commissioner’, examine such records papers (27- only judges the written order of one 1606). chapter, subject “In

27-1607. unless the context or mat- requires: ter otherwise juvenile

1. ‘The court’ means the court; judge’ judges 2. court; means ‘The one of the the of person eighteen years age; 3. ‘Child’ means a less than of ?? “Except provided by

27-1608. as otherwise the court law, original jurisdiction proceedings: shall have in all Concerning any residing temporarily 1. child in or iswho county: any city village within the a. violated or Who has ordinance or law of or this state of the United . States; . . Concerning any person twenty-one years age

2. under of re- county siding charged any city having within the with violated village or ordinance or law of this state or the of United States prior having eighteen years age; to become of county Concurrent with the district court, jurisdiction, justice with police magistrate increased or person any ages over eighteen twenty- court, between the of years residing county charged one within having with vio-

682' state this or village any ordinance or or any city

lated of the United States warrant, without a is arrrested or any

27-1609. “If child with magis- taken the justice, police before such child instead being be taken increased shall or trate, county with proceedings all to court where immediately as provided by child conducted reference to said shall be thi§ chapter.” chapter, “All within this provisions

27-1610. children ‘wards this be considered chapter shall only, for purposes e subject care, shall and their b persons state’, in this chap control of the court provided guardianship, care, such court, guardianship, At the discretion of ter. attained the until ward shall have may control be continued chapter of this provisions twenty-one years. age for other than age minority change any purpose not of the child.” custody of awarding any older, fourteen or child, years

27-1613. ‘When an offense,.a judge commission of charged child court, discretion, may permit proceeded his with the laws or may accordance ordinances which against in force such offense.” governing “If the find that within the

27-1621. court shall child is and, it shall order duly so decree chapter, follows: entered, proceed as

1. Place in his own home or supervision the child under relative or other such terms custody proper person, determine; as the court shall the child or public agency

2. Commit suitable institution the care institution or of children private agency or licensed authorized duly board, state approved ' home; in a private such child suitable place (cid:127) 3. Order care and treatment as the court may such further be for the the child, deem to best interests as otherwise except chapter. in this provided adjudication upon

No the status of child within the any juris diction shall civil operate impose this court any from conviction,1 disabilities nor shall ordinarily resulting any adjudication, deemed a criminal of snch child be reason nor (cid:127) adjudication disposi shall such be deemed a The conviction. any given a tion of child or evidence shall be in court not against any proceed evidence admissible as in case or child any disposition ing court, other nor shall such or evidence operate disqualify any child in future civil service examina appointment, application. tion, Whenever court shall any agency,- commit a child to institution or shall transmit, summary of commitment, the order of all informa of'its concerning tion such child.” any proceeding brought provisions “In

27-1625. under the chapter, any repre- this court, where the not case child is person, appoint any may guardian appear sented ad litem to and act on behalf of said child.” publication any “No

27-1631. of the child under name jurisdiction by any' newspaper court shall be made ex- Of cept process published by as contained in court and order Any provisions court. violation this section subject reporter publisher any newspaper the news violating contempt so same for civil and to be cited punished therefor.” NDRC 27-1631. judges judicial may appoint

27-1633. “The district juvenile carrying officers to assist out the of this require chapter, child under the of this report regularly to a officer. . . . NDRC 1943,27-1633. Encyclopaedia

In Britannica it is said: organization originated “The court as a distinct legal philosophical assump America but takes its root in century. tions current- in the 19th Its immediate aim to preserve procedure. from the children abuses of criminal Its principles revolutionary change involve a of attitude. . . . thought modifying procedure. At first there was no idea was stressed that after conviction the confinement should apart from adult criminals. ... 1899the first (Cook organized County, Chicago, Ill.). brought court was It dependent under one who children violated laws and provided procedure pro- children, identical for both, established adjudication deemed not a conviction of decreed that bation, placing of the child the relation of ward to the crime, but the delinquent ‘approximate child was to The care State. given by nearly should have been parents.’ by police Instead warrant examination arrest, jury judge, there bail, sentence, trial and was sub- indictment, complaint, investigation'by probation petition, officer, stituted imprisonment hearing informal and commitment. Fines, spread penal abolished. The movement with treatment were rapidity. By 1904ten States had after the first courts; (Wyom- years, only and in 1928 two 1914, ten ing States States; Maine) were without courts.” . . . principle that the is, first, “The child is not an being, mentally, ungrown physicially, a distinct adult, but emo tionally socially; response life different; child’s to secondly, against proceed that the should not State child as prosecutor, parens chancery patriae but exercise protect Encyclopaedia (Chil the child.” 5 14th Britannica, ed., Courts), pp (Since dren’s 477-478. the above was written both provided Wyoming Maine and have for Juvenile Courts, Rev Comp Wyoming, Maine Ch 1944, 133; 1945, Stat Stat 58-601, 58-602). history of this in the state discloses that what is said

Encyclopaedia applies legislation that was en- Britannica to the- chárged relating acted in this state the commis- children subject punishment. sion of acts which would render an adult adopted provision In the 1889, Constitution of state, was made for Reform establishment of a School State City Mandan. ND Section Const, Sec ap Constitution was amended constitutional amendment proved by on electors of Election the State-at the General change November Reform 1920, name State Training School to State Dakota School. Laws of.North Chapter 94; Art Amendments, Laws of Constitutional pp Enabling provision 259-260. In for made Act had been grant by land United acres of 40,000 States America support Enabling- school. At Sec 17. Act, Legislative Assembly first session of the First in the State

685- government provision made for the Dakota North pro operation 164. The Laws 1890, of such Reform Ch School. Chapter in. were and embodied the 164 codified of said visions Codes, provisions of North Dakota 1895. Certain Revised of of in 8582 the Revised North the law were embodied See of Codes 1895 which Dakota follows: read.as age eighteen years any person shall the of

“Whenever under public justice any of before crime or offense be'convicted peace , or of state, court or court other than district -the-peace being person, justice disorderly or other such together person with all the such court, must forthwith send charge papers relating on and a-certified office, to file in his charge transcript under his docket entries in the action, judge peace to court officer, of some county. district thereupon parent judge shall issue an order to person may guardian have had or to as accused, such person charge, in he to him or with whom last some resided, nearly person no related if if there him, known--or such person designated to. in order to known, then to some be being, requiring guardian the accused for the time act as for person appear place parent at a time and stated or other such why be the accused should not and show cause in such order of North school. .” Revised Codes committed to reform . . Dakota, 1895,Sec 8582. provision quoted in Revised

The above was embodied Sec 8582 Compiled again 11283, of North Dakota 1899 and Code Dakota 1913. in the decision in However, Laws of North for Overby, 552, ND 209 in con rel. Neville 54 NW 295, State ex struing in 1911, act enacted said court this Coui’t probably superseded that “is this section deprive justices peace law, court

the police try magistrates and sentence offenders p years age. ” eighteen at ND at 556. 305, under NW provision included in was not NDRC but was And superseded. deemed to have been See omitted because pp Dakota Revised Code of 1943, North Vol 177) (Laws Law enacted Ch The Juvenile Court neglected delinquent dependent, provided “all children age eighteen years, purpose under the shall, of this only, persons act considered wards this state and their be subject guardianship care, to the and control of the (Sec provided.” 1) pro hereinafter as The Act further ‘delinquent any vided that “the word child’ shall mean child eighteen years any who while under the violates of. (Sec 2)

the state; . . “the . That courts of the district original several in this state- shall have counties 3) coming (Sec all within the cases of this act.” That terms may “the court convenience, be called ‘Juvenile Court,’ possible far the said shall be held in chambers.”' (See 4) may-in That “the court discretion in ease its of a delinquent permit proceeded against child such child accordance be in laws that force in-this state governing city, village, of crimes or violation commission (Sec provided: 11) or town . ordinances; . . It further any age eighteen years “if child under the is arrested with or being without child warrant, such shall instead of taken before e justice- peace police magistrate, given or into th juvenile county, having care of a officer said and the officer charge juvenile the child in shall take the child before such court, any county (district) may proceed and case in to hear dispose and in the manner case same if the as child had brought petition provided. been before the as herein (Sec 15) following repealing . act . contained the . repeal existing act clause: “This construed to in laws dependent, neglected conflict with this act under and delinquent might and children as defined act this be arrested, complained against, placed or confined taken into or committed, custody, justice in or courts but as to all courts, other it shall be as laws construed cumulative and not as exclusive.” (Sec 27) change relating dependent,

Aside from a minor made in 1913, (Laws neglected Chapter 68), juvenile 1913, children and court law enacted in 1911 quoted provisions remained enacted and the above

remained force and were embodied in the Compiled Laws of North Dakota for 1913, 1913. CL Sections 11402-11428. As been said, has in the thereafter, course of (NDRC 1943) juvenile of the laws this state codification Chapter 212, rewritten and enacted as" Laws court law was Relating “An Act to the act entitled Juvenile Court 'That was Custody and amend Control, of Children; Protection, re-enacting” (following existing ing the then relating of North Dakota of the State laws enumerated). Chapter specifically Laws 177, 1911, courts are delinquent dependent, neglected provided children “all years, purpose eighteen of this shall, under (Sec 1), only, and defined “delinquent state,” of this act be considered wards “dependent “neglected child,” child,” and the terms' Chapter any reference to 212, eliminated child.” Laws dependent neglected provided delinquent, in children and “ person of that act ‘child’ that within the terms means stead eighteen years age,” provided that the less than (1) proceedings; original all have “shall courts temporarily concerning any residing in within or who is child any city village county: ordinance a. "Whohas violated or States;” who or of the United has commit this state or law of specified any any or is of the situations of the other acts ted Chapter 8; NDRC 27- Laws in the act. 1608(1). Chapter 8(3) provided that further 212, Section Said “concurrent with the dis have court shall jurisdiction, justice county court with increased court, trict ages person police magistrate over between the court, charged having eighteen twenty-one years with . . . village any any or ordinance or law this State violated 8(3); Chapter ND 212, Sec 1943, United or of the States.” Laws provision 27-1608(3). in the was contained No similar 1943, RC juvenile provided that the court former law. The law former permit delinquent any in a child “may case of discretion in its proceeded against the laws in accordance with child to he such governing may the commission in force state he in this that city, village, town ordinances; or . violation of . . or crimes Chapter pro Chapter 177, 1943, 212, Laws Sec 1911, Laws age years any older, or child, “when vided that fourteen judge of charged a of an this court offense, commission with may, permit proceeded against discretion, in his such child to be in accordance with the laws or ordinances that be in force governing Chapter such offense.” 1943, Law's 212, 13; Sec NDRC . provided any The former law' 27-1613 that “if 1943, child under years eighteen is arrested with or w'arrant, without being justice such child shall instead of taken before a of the peace police magistrate, given into the care of a county, having officer of said and the charge officer the child in any shall take the child before such court, and case county (district) may proceed dispose court to hear and the case in the brought same manner if the child had been upon petition” provided before the act. Laws Chapter Chapter provided 177, Sec 15. 1911, Laws 212, 1943,’ “if child is arrested with or without a w'arrant, child being justice, police magistrate, instead of taken before the county court of increased taken immediate ly proceedings all Juvenile Court where with reference provided by chapter.” child said shall be conducted as this Chapter Chapter 1943, 9; 212, 1943, Laws Sec NDRC 27-1609. repeal did not 212,Laws contain a clause such as that con Chapter tained in Laws later embodied —and chapter general said contained 11428, CL re —but pealing parts “all clause that acts and of Acts in conflict with chapter hereby repealed.” Law's 1943, Chapter 212,Sec 34. Overby, supra, ex rel. Neville v. had occa- State this Court original

sion to construe the of this state. complaint mag- In that case a criminal filed with the was City charging Grand Neville wdth istrate Forks one larceny. grand crime A w'arrant w'as is- commission brought Neville before the thereunder, sued and w'as arrested police magistrate, given preliminary examination and held He bail which to answer the district court. admitted to w'as filed in the furnished. Later a criminal information was County attorney court of district Grand Forks State’s larceny. county charging grand Neville the crime of plea Thereupon arraigned guilty. he He and entered w'as judge presiding court and W'assentenced district Training through committed to the State School. Neville his parents petitioned judge of the district court of Grand Forks County corpus alleging proceed for writ of habeas that the ings in which he had been tried and sentenced arrested, were proceedings void for the reason that at the time such had were age eighteen years. judge he was under the The district petition thereupon parents denied the of .John Neville petitioned corpus, alleging for writ Court that habeas against proceedings at the time the police magistrate were had Neville before in the district court and at the time sen pronounced judgment tence was of conviction in rendered eighteen age years. the district court he under That was preliminary at the time of the arrest at the examination the police magistrate and the chief of under knew he was age eighteen years attorney and that who State’s prosecuted against the action him in the district court and the judge pronounced presided district court who sentence judgment age and rendered knew that he under the was eighteen years; consequently proceedings and that had, the pronounced judgment sentence and the rendered were without jurisdiction repealing court void. This held that the clause Chapter legislative in Laws evidenced a intention not repeal but to leave force the of law existence , Chapter conferring enacted, when said Laws 177 jurisdiction on the district of criminal and trials offenses persons charged including the commission felonies persons eighteen years; under the that the unusual terms repealing history and the of the enactment evi clause intention, unimpaired legislative jurisdic to leave denced former That tion of the district court under such laws. errors operate deprive proceedings did not district court of jurisdiction. original opinion in that In the case this Court said: all

“The district court has over criminal offences original jurisdiction felonies, and exclusive over all and of all persons brought charged with the crime. commission of therein, deprive act does not the district court specifically in criminal re- causes; it states all

pealing and not exclusive as to that it is cumulative clause police only justice excepting law as the administered law, patND courts.” 54 making required arrest the officer the 11,416,

“Section juvenile give arrested a all children the care of officer into to age, eighteen years prevent children to of tender of is under years jail being into hardened criminals from thrown with juvenile harmony object purpose act. of the the is pur- juvenile and it the “The not court is a criminal eighteen years pose juvenile of to under the law treat offenders give age practicable to them but as far as criminals, of not as stigma paternal from the care the to save them home, the against protect guard attaching them them- crime, persons. selves, and all evil-minded question are not

“We concerned with the juvenile police magistrate justices peace of- the over against persons writ behalf the law. The in whose fenders the corpus by prosecuted, not a com- held virtue of habeas magistrate justice peace; police mitment issued they felony judgment of are held virtue of a conviction a court which exclusive over such district has ND offenses.” 54 at 302. opinion rehearing petition on

In the for this Court said: legislative respect juvenile “The intent, with the arrest of Comp clearly expressed so Laws offenders, is Sec 11,416, necessary. bring juvenile, comment To no seems years, peace eighteen justice under the before police magistrate preliminary purpose or a exami- specifically nation The act is in the statute. manifest defiance of provides eighteen years, that a child under if not arrested, shall ‘given taken an into the care officer, before such but county.’ juvenile of a In the cases before us, officer said petitioner, proceedings said the counsel for before wholly irregular contrary magistrate to the stat- were duty including plain the state’s ute and it was ; officers, give attorney, arrest, had connection with their who juvenile county. bays Forks care officerof’ Grand ‘into the respects however, fact remains that errors in these do The not jurisdictional justify amount to such defects issuance corpus. writ of habeas “Primarily, jurisdiction over is in offenders the dis- sitting trict as a court, this, court. Of all officers attorneys and state’s should take notice. court has discretionary power prosecution to order a criminal in the Comp (Italics supplied) course. usual Laws 11,412.” p 54ND at 306. legislative purpose clearly repeal

“The is evidenced the justice police clause. There intent divest the courts .and courts jurisdiction unmistakably all is made clear; on the other hand purpose jurisdiction the not to divest district the court equally justice giving police All statutes and the manifest. juvenile expressly courts over offienders are de- repealed; clared to all example, but as to other laws, like for supra, juvenile supplementary Sec 11,281, act is and not a ” repeal (Italics sup- and not exclusive.’ . . . —‘cumulative plied) 54 ND at 307. Overby, What was said this Court ex rel. State Neville v. supra, respect police magis with to the want of of a delinquent eighteen years, trate over a child under duty policeman, and of a who has arrested such child either taking with or without a instead warrant, such child before police magistrate give juve child such into the care of a e county, applicable nile officer of this case under th present juvenile present provides court law. The law that if any child is arrested with or without a warrant such child in police being magistrate stead of taken before the shall be taken immediately proceedings to the court where all with provided reference to said child shall be conducted as in said pointed law. NDRC 27-1609. As been has present juvenile (Laws out the title to the court law 1943, Ch 212) Relating recited that it was “An Act Juvenile Court Custody Protection, and the Children; Control and amend ing re-enacting” existing juve provisions all the then state; Presumptively, Chapter nile court laws of this said knowledge light Laws was enacted with of, .in of,. Overby, supra; ex rel. Neville v. State the decision legislature had inten- language that the no the act indicates given depart had been to the construction that from the tion. to Overby. The ex rel. Neville former this Court in State law approval of such construction indicated their lawmakers construed. CJ Sec to reenact the statute as so their intention Chapter language no pp leaves of said 1036-1037. legislative purpose intent to forbid that doubt as to police brought before a in the act “child” defined should magistrate an ordinance for trial or sentence for violation for violation if arrested but that such child is being taken such child instead warrant, “with or'without a magistrate be taken before the immediately . . . . . . proceedings where all to the provided by this shall be conducted as reference to said child chapter.” In the section the next 1943, 27-1609. NDRC chapter, provides of this “all within the children chapter only, purposes shall he considered ‘wards of this subject persons guard- care, to the state’, shall he and their chapter.” provided ianship, in this and control the court as (Italics supplied) 1943,27-1610. NDRC any no that there intention there is contention Indeed, magistrate police part with to vest the on the of the city jurisdiction try a child has violated to and sentence who pronounce judgment to render of conviction or sen- ordinance or contrary upon that the child. the it is conceded tence such On magistrate perform- prohibits police from court law prohibition police ing the and it contended that the acts is such magistrate performing the un- from such acts renders statute petitioners that the contention of the is short, constitutional. law the contravenes Sec of the far material State section so as Constitution assembly legislative provide by provides that “the shall here magistrates incorporated police cities, in the election of villages, jurisdiction in their of all addition to who towns, arising cities, the ordinances of said towns and vil- cases lages, under justices peace county of the be ex officio villages may towns and be located.” There is which said cities, any other pon- law violates contention that no. contrary provision. that' it is asserted stitutional On purports only it to interfere insofar as law unconstitutional is try magistrate deprive police to with and eighteen years age under cases where a child determine city violating charged of a and to an ordinance judgment pronounce of conviction such and render sentence cases. allege “petitioners petitioners’ that that brief it is said

In the respondents attorney the statute relied attempts to invade the insofar it unconstitutional as municipal magistrate police It ordinances.” in violations of clearly in that mind “It borne is further said: should constitutionality challenge petitioners action do not in this applied any way except in as it is Act in of the Juvenile magistrate police municipalities thereof. We believe and the part that unconsti- but that this unconstitutional law is tutionality that if statute; affect remainder does not .portion the re- nevertheless the unconstitutional is deleted operate complete with- mainder of the sufficient statute is operate.” It said that the is also in the areas wherein “respondents (petitioners) 27-1601 et that do not contend respect seq other is unconstitutional NDIiC magistrates applied municipalities except there- of.” general principle hold and cities exercise their

It is legislative powers.subject legislative control and the author- governmental powers ity political of a over the is su- preme except limited and Federal State Constitutions. Am37 Jur municipal powers, privileges general,

“In functions, corporations may changed modified at the discretion or be or may legislature creating they

pleasure them; be increased of they may extended, on the other be or, hand, restricted, or 62 341. diminished, 340, or withdrawn.” CJS provision no for what of'this state contains Constitution grant any commonly or of charter, known a “home-rule” contrary self-government right the Consti- of to cities. theOn &94 assembly any passing legislative local prohibits from

tution villages incorporation special cities, towns or laws or city, village. any changing amending or town the charter or or pro- further 33. The Constitution Const, 69, N snbd Dak Sec provide by general legislative assembly law : “The shall vides restricting municipal corporations organization their for the powers money borrowing levying assessments, taxes and as to money contracting loan or taxation, and raised debts, any purpose other not be diverted assessment 'purpose except by authority Dak 130. Const, of law.” N “are creatures of this state cities

Under the Constitution v. alone.” State ex rel. Shaw and of the statute statute . has 510 And the Frazier, 430, 444, 39 ND 167 NW prescribe powers and to to define the of cities City ND v. 76 Jamestown, manner their exercise. Stark 530. 516, 422, 448, 37NW2d may priv grant powers or withhold,

“The state withdraw great sphere ileges action, or its fit. However small sees exercising holding it powers of the remains the creature State sovereign privileges subject will.” to the Trenton Jersey, 43 534, v. New 262 L ed S Ct 182, 187, 927, 941, US 67 legislature, 29 ALR A the creature 1471. “is rights, powers the will' of its are fixed its creator.” duties Fargo Fargo, 49 ND In North v. 192 NW 979. 597, 605, 977, City ND 1113, 1118, Waslien v. NW Hillsboro, this Court said: incorporated through general

“In state, cities are legislature. They mere of the State are creatures statute. They ex rel. v. 39 ND 167 NW 510. Frazier, Shaw 430, 434, political purposes state, auxiliaries for subdivisions government part powers exercising of local the state. They may powers their created, creation, after or, enlarged altogether withdrawn at the will or restricted legislature. legislative power This discretion . . . grant primarily plenary; of, the constitution is not but a re- upon, that-power.” striction Sitte v. 56 ND See, also, Paulson, 216NW Fargo ND Sathre, NW2d had this Court

695 occasion to consider the validity effect of a statute. adopted to initiative pursuant petition from prohibiting cities establish- ing parking meters maintaining requiring there- deposit in of coins where automobiles were on the parked streets of ordinances invalidating enacted previously providing for meters. City had parking Fargo expended consider- able money meters, sums and the establishing parking validity of the statute was challenged many on This .grounds. at (Syl 6, Court held 76 ND that “the p 343) initiated statute . is a valid enactment and . . its effect is to void nullify all ordinances inconsistent cities with its provisions.” in the Court opinion case this said in part: “Cities and other political subdivisions of the are state merely agencies they of the state. powers Such as have are conferred upon them the people state either way. legislative through enactment or initiative. been thus Having conferred or they away. be modified taken State ex rel. may See Linde v. 561, 156, 33 ND 156 LRA1918B Ann Taylor, 76, NW Cas 1918A 583, quoted where this court from approval the case of L Kansas, v. 48 ed 24 Atkin US as S Ct follows: “ the creatures, ‘Such are mere corporations political subdi visions, state, purpose part exercising its may only exert such powers. They powers expressly or them, necessarily implied such be from granted may granted. those What they lawfully public do character done under the sanction of the They are, every State. es sense, only auxiliaries of the sential State purposes , local government. They may created, been having or their be restricted created, powers enlarged alto withdrawn at the will of the gether legislature; authority when legislature, restricting or withdrawing powers, subject only the fundamental being condition that the col lective and rights people individual of the municipality shall not thereby destroyed.’

“See also v. 59 ND Lang Cavalier, NW 819 cases rel. cited; ex ND Dreyer State Brekke, 468, 28 NW2d challenges Plaintiffs’ of unconstitutionality must-be considered relationship of this between the of North Da- light in the State and its cities.” kota assembly

It that has full control apparent legislative is that enacted may by over ordinance have been any any a no inher- city in state. Under the constitution has cities to enact It no enact any authority ent ordinance. has power until to do so has beén authority grant- an ordinance-'unless enact to cities to grant power ed law and ordinances as a operate legislative power. does not surrender CJS it fit with- any at time sees so do p 359. it enact ordinance or it may has granted draw power in of an a conflict with the ordi- general provisions enact - under former city nance which- has been enacted grant in of the ordinance in such case power -with the statute are and rendered invalid. superseded conflict on McQuillin Municipal Corporations In it is said: statute to matters of state-widé concern “A general relating construed to exist- ordinarily repeal, previously is repeals, McQuillin Munici- local ordinances conflict with it.” on ing 3rd Corporations, ed, p pal ordinance a to the an that general requisite validity

“It is statutes, and, consistently, not general it conform to, violate, ordinance with which it is repeals an earlier statute general legislative intention is manifested. contrary unless repugnant, not cannot an supersede ordinance does Conversely, an conflict the words, other case of statute. general earlier char- attached to Indeed, every statute, every is void. ordinance adopted or affecting, by, ordinance resolution ter, every yield that the same must condition implied is municipality that has been power state,-when the predominant exercised. . . . powers legis- within constitutional its

“Unquestionably, re- municipal ordinances. Such modify repeal lature may intention to repeal If the express need not be in terms. peals to the give way legislative the ordinance must appears, clearly im- an is with it. Thus ordinance far in conflict act so is subject on the same later valid statute pliedly repealed Corpo- Municipal incompatible with it.” on McQuillin is which seq. rations, ed, 21.32, 3rd 237et principle municipal a fundamental that

“It is ordinances An and subordinate to the laws the state. inferior status general in conflict with character and' ordinance a state law application universally invalid. The held to be state-wide principle expressed frequently that munici- the declaration adopt pal general grant power, under a cannot authorities, infringe spirit re- a state law or are ordinances general pugnant policy pp Am Jur, to the the state.” 37 787-788. City

There contention of Minot is no ordinance of any involved in this case or provision ordinance of the contains age fixing person above which a be deemed shall capable committing an of an offense violation ordinance responsible punishment or be violation liable such and presumptively city therefor and did not ordinances provision. and could not contain such pointed legislative assembly

As has been out, the has full may control over ordinances be enacted and over ordi- what nances that been have enacted the cities in The this state. provides legislative assembly provide constitution that “the shall by general organization municipal corporations law for the restricting powers levying their as to and assessment, taxes bor- rowing money contracting and ND Const, debts.” 130. Sec Or- city naturally dinances of a would relate to matters local city. Supreme concern within The Court of Minnesota has purpose municipal regu- said: “The true of all ordinances is to late local affairs.” State v. Minn Mandehr, 168 209 139, NW Fargo See, 750. also, v. 62 ND 244 Glaser, 673, 905. Em- NW ployment (43 65) of children CJS care and treatment of neglected delinquent children are matters statewide con- legislature police power may cern under the enact such respect necessary provided they laws thereto itas deems any provision do not contravene of the Constitution of the State or Constitution of the United 2 Mu- States. McQuillin, nicipal Corporations, p 3rd ed, 57; Limi- 4.94, Tiedeman’s p seq. age tations Police 5 Power, Sec et The criminal 2, 698 (43. capacity a crime

responsibility of an infant to commit or binding may 217) make a an infant at which CJS 160) (43 The concern. are matters of statewide contract CJS obviously justice than rather a state affair administration Corporations, Municipal municipal 3rd 2 McQuillin, affair. a 206 Minn Hutchinson, v. ex rel. Dann 4.95, 158; State ed, Sec subject court law 845. The matter 446, 288 NW people of it concerns all the affair, not local state is concern. and a matter statewide the State city granting provision contains no The constitution power any it contain or ordinances nor does to enact ordinance legislature grant any provision direction that the or city. power powers the' that under to a is obvious Hence, ordi- no to enact has constitution of this state by legislative enact- unless it is authorized nance or ordinances authority legislative granted en- ment and the so do, so qualified if thereafter be withdrawn actment clearly ordi- conflicts with a statute which enacts prevails the con- the statute that have been enacted nances flicting superseded and rendered invalid. ordinances police power, enacted under court law The 34 Isenhuth, 218, SD rel. Kronschnabel the State. State ex 741; Re Hook, Johnson, Re NW NW 9; Wis rel. Foot v. District 730, 19 Atl ALR State ex 610; 497, 115 Vt 250Pac Court, 77 Mont police power sovereignty inherent in the is an attribute of American “and without reserva- union, exists

states duty being of the state tion in the founded on the constitution, provide safety good protect for the order its citizens and to society.” pp 539-540; 16 CJS, Law, 175, Constitutional Sec pp The 245, 11 Am 966-968. con- Jur, Law, Constitutional Sec “supposes pre-existence pólice power, stitution Jur, that fact.” 11 Am with reference to must be construed p p Chicago & R. 541; 16 N. W. Law, 969; Constitutional CJS NE 625, 376, 326 Ill 158 v. Commission, Co. Illinois Commerce 123 Edu., 168 La 1005, ALR Borden v. Bd. 654; 55 State La. Carthage NE 268, 122 NY 25 Frederick, ALR v. 655; 1183; So 67 Rep Am 490. 480, 10 LRA 178, 19 St

699 principle “It is a fundamental of constitutional law that in police legislature relating power each matters to successive' authority. equal legislative' part body A is with its cannot right power; authority inherently to exercise it such has to use power again again, public may as as the often interests require.” Jur, 11 Am 254, Constitutional Law, Sanitary

In Neer v. Live State Stock Board, this Court said: “ power’ police power government ‘The is the inherent in a to promote enact within laws, constitutional limits, to the order, safety, general society. health, morals; and welfare of Such power, pointed by- speaking out Mr. Justice Holmes, Supreme Court of the United States, Bank Noble v. State Sup Haskell, 104, 219 55 L 112, US ed 32 LRA 31 1062, NS Ct Rep may way, general Ann 186, 1912A, Cas be in a to said, public great put to extend all the and ‘it needs, forth in by usage, prevailing aid of what is sanctioned or held morality, strong preponderant opinion greatly or immediately necessary public applied welfare.’ to the As powers ‘police power’ of one of the Union, states the term governmental powers also is used to denote those inherent system which, under the established the Constitution of the United are reserved States, to the several 12 states. CJ 905. thing police power no course, Of there which is above justifies any express or which Constitution, violation implied manifestly prohibitions. constitutional State ex rel. College Milwaukee Medical v. Chittenden, 107 Wis NW . scope police power, And, 500 ‘however broad the it is always subject legislature may to the rule that the not exercise any power expressly impliedly that is forbidden to it subject state Constitution.’ But where CJ 929. within police power, legislature say remedy it is for the what the upheld enactment will be be, unless con travenes some constitutional restriction. American Linseed Oil LRA Wheaton, SD 125 NW 127.” 40 Co. NS pp ND at 869-370. has what constitute define acts shall penalties imposed and what

criminal offenses shall be on offend- generally expedient “and to enact all laws deemed ers; 70Ó

protection rights public private prevention and the punishment public wrongs, expediency making any being legislature such enactment a matter of is the proper judge. may impose penalties It for a violation of its requirements. statutory may'take liberty, or-property It life, keeps long for crime, as as it within the bounds Constitu long infringe tion. So not its- enactments do constitutional rights privileges, express necessarily implied, its will absolute.” 14 is power Am The Jur, 766-767. has the , age responsibility. to-fix of criminal also, has It, say by that an act done not child shall crime or punishable though as such even the same act crime constitutes People if done an adult. 260 NY 183 NE Lewis, 171, 353, 86ALR 1001. Legislative Assembly Territory of Dakota fixed age responsibility provided of criminal every that child age years conclusively

under the incapable presumed seven to be committing age crime but that “children of the years, age years, seven but under the of fourteen in the ab- proof sence of committing neglect at the time of act. against charged they wrongfulness,” them, knew its are also incapable committing deemed a crime. Penal Dakota Code, Territory 16(2). statutory provision 1877,Sec This retained (CL in force after statehood 1913, Sec NDRC 12- 0201) and was construed this Court in v. Fisk, State 15 ND 485, 11 Ann NW Cas the decision in that case this Court said: age years

“Under the above section, a child under conclusively presumed incapable committing to be a crime. respect England In this it is the same as the common law, both of country. and this Between 7 called the dubious presumed .incapable, discretion, child is still to be but presumption is not conclusive. The state overcome the presumption, proof but to do so, must clear that the show wrongfulness accused knew the of the act he committed when proof.the presumption incapacity it. In. the absence of such prevail. must The burden is the state in such cases prove knowledge wrongfulness independ- of the act. .an respect commonlaw.” as at the rule the same is ent fact. p 591. at 15 ND change age legislature might

Obviously, of criminal jurist responsibility. noted said capacity As was well or legal writer: and if the common law could that, to be obvious

“It would seem legis- responsibility age at and if the seven, criminal fix age that to ten or can also raise twelve, advance lature could eighteen, or that is in some or what, it to seventeen sixteen juvenile-court Under most of the laws has been done. measure, age proceeded against designated under the is as a child judge juve- only judgment in the of the of the when a criminal any one over court, child, either or in some states as to nile years age, or the interests of the state fourteen over sixteen require Court, that this be done.” The and of the child Judge Juvenile 23 Harvard Mack, Review, Julian W. Law juvenile legislature pro By court law of this state has original juvenile jurisdiction in that the court shall have vided city any proceedings concerning any all child “who has violated village States;” ordinance or of this state or of the United juvenile (NDRC 27-1608) purposes that 1943, provisions act all children its “shall be considered court within subject guard persons their to the care, ‘wards of the state’ provided” juvenile ianship of the court as control any “when child four court act. 27-1610. That 1943, NDRC years age charged an with the commission of teen or older is “may judge discretion, court his offense,” against permit proceeded child to be in accordance with such may governing or that be in force such the laws ordinances purpose ef 1943, 27-1613. The obvious offense.” NDRC every “child” than these is to make less fect of eighteen years age, any violated of a who has ordinance village law of the or of the or has States, or or state United who specified any any or situation act, other NDRC committed subject jurisdic in the instance alone to the first 27-1608, juvenile court; “child, tion of the but when such fourteen charged years of an with the commission offense” older, pow- judge discretionary is vested with “permit waive er to against proceeded with the laws or in accordance to be child such governing offense.” NDRC be in force ordinances and Of- Courts Jur, 31 Am Juvenile also, See, 27-1613. pp 234-235. 33; Sec 43 CJS fenders, capacity power of criminal had to fix If the power absolutely, responsibility it condi- to fix it also had tionally had it also 9207; it did in CL provide an offense that when a child who has committed to or the ordi- against the United of the or of States the laws State juvenile court of the become a ward of a and thus juvenile nances may.waive the judge in discretion the his the pro- juvenile permit the child to jurisdiction court and against ordinances in accordance the laws or with ceeded 27-1613; governing such offense. NDRC in force 801; Sec Offenders, and Am Courts Jur, Juvenile. pp 234-235. CJS enacting juvenile legislature the not con- was fixing age at which an offender should be deemed

cerned with capable committing a a criminal an crime under statute or penal a ordinance. It not the act under was the aim of offense punishment provide for but instead “to treat to such minors It not as criminals but as wards of the was such minors state.” clearly legislative purpose provide and intent to that acts by minors which if committed an adult conduct such would penal a violation a criminal statute or ordinance constitute perpetrator subject prosecution punish- and to and render penal ju- proceedings exercising in a court criminal or ment subject not render a “child” in the act risdiction shall as defined prosecution punishment and to but shall instead constitute such subject offender a ward of the as to the state and such exercising chancery and of a court vested with equity powers. In court act the short, system and intended to establish and did establish new method dealing and offenders invoked equity powers exercising to deal with such offenders. of a court Jurisprudence says: American early law did not

“The criminal between differentiate adult responsibility who of criminal and minor had reached law and in states, —seven at common some our ten in others, escape up lacking mentality twelve, with a chance to to if maturity. thought ju- moral The fundamental in our criminal .risprudence jurisdictions most not, and reforma- not, punishment; applied tion but chil- criminals, Today, thought however, dren as well as to is that adults. begun go wrong, incorrigible, the child who has who is who has broken law or ordinance, is to be taken hand enemy, protector, guard- an as a state,.not as but unwillingness as the ultimate inability either the because or the the nat- ian, parents guide good citizenship compelled ural him toward has public Am Jur, intervention authorities.” p 784. creating having jurisdiction courts

“Statutes de- procedure linquents, providing therein and the care discipline delinquents, of such been have characterized progressive, humanitarian, courts beneficial, paternal They have been referred and benevolent. have object punishment for their not the offenders their misconduct, criminal but removal from the otherwise, path temptation paths and their direction into the of rectitude by preventive operation and corrective means. Their is in- inception, tendency pro- tended to check the in its criminal and period improper tect the unformed character the facile from give influences, environment and to to the weak and immature fighting development a fair chance for the of the elements of honesty, sobriety, good citizenship, and virtue essential to prevent up growing to them from to lead idle, dissolute, immoral In lives. other at words, welfare child'lies very statutory foundation A scheme. statute of this parens patriae nature assertion is an of the state’s right parental proper its to exercise control over those of its wrong.” disposed go p minor who are citizens 31 Am 785. Jur, purpose creating “It courts is not the of the statutes provide punishment additional courts for the of crime. The purpose special having jurisdiction, tois establish tribunals physical, relating prescribed within limits, moral, of cases 704 well-being they mental children to the end that away paths

directed from of crime.” conceptions distinguish juvenile “The basic courts from briefly other courts can be summarized. Children are to be separately dealt with from adults. Their are cases to be heard preferably they at place; a different time and in a different separate buildings, guid- detained in if institutional necessary, they ance are to be committed to institutions for probation Through keep children. its officers the court can appeared constant touch with the children who have before it.” pp 31Am Jur, 788-789. attempt separate

In this state there was no to create jurisdiction but act established upon existing namely, conferred an the district court, court, which court Constitution the State vested original equity. in all N Dak Const, matters p 103; Sec Mead v. First National 24 ND at 138 Bank, 14, NW p Equity, pp at 366. also, 30 See, CJS, 31 Am 7, 324-325; Sec p doing Jur, Juvenile Courts and 789. In Offenders, 9, Sec so example followed the aof number other states. equity person of a court of an over in- recognized long firmly fant has been established. 19 Am ALT?, Equity, p p seq; Jur, 145, 152. 14 Sec Note: 308 et 4 Pomeroy’s Equity Jurisprudence, 5th Re ed, 1304; Sec In San- Municipal 47 N tillanes, 503; Mex 138 P2d 17 McQuillin’s Corporations, p seq; 3rd 43 ed, 47.16, Sec et Am31 Juvenile Jur, p and Offenders, 801; Sec Courts Wharton’s Criminal seq; pp 12th 480 et Law, ed, New 50-55; CJS York Bangs, Life Ins. Co. L ed US Municipal Corporations McQuillin on it is said: especially juris- establishing conferring “Laws, statutes, upon juvenile empowering diction courts and courts custody persons take and control of children have of been by many of considered courts last resort states..... parent dependent the state is

That the ultimate of all inhab- its especially legal conception. itants, is an familiar infants, old and every system ‘It social there is essential well-ordered that judicial authority may by protection should some be . that themselves; . protect to those who cannot . afforded it is to duty supervise be some tribunal whose should there For at of infants.’ two centuries estate care of persons of have exorcised jurisdiction courts English chancery least the and this necessary, the child when deemed for the of protection that the child pos- not based alone on the fact was jurisdiction equity from the beginning, In this property. country sessed like purpose the same jurisdiction courts have exercised minors..... protecting “ England prerogative been considered to exist in ‘There has to be the Court of Crown, parens in the as exercised patriae, infant residing temporarily Chancery, protection ” Munici- jurisdiction.’ McQuillin, its within permanently 47.16, pp 43-44,45. pal Corporations, Court Bangs, supra, Supreme

In New York Life Ins. Co. v. through of the United Mr. Justice Field said: speaking States “The courts of over the equity persons general authority have much dwelt, which counsel so infants, upon estates proper not It questioned. exerted, upon application, is both. This in the English .for protection to have in the chancery supposed originated preroga- courts of from its Crown, general duty parens patriae tive of the arising who other But persons rightful protector. have no protect more of na- does, as the says Story, prerogative partaking, and duties foro ture of a administz’atiozz judicial zúghts it very than a strict executive was authority, eonscientiae the court of as a branch of its naturally chancery exercised by he ‘the jurisdiction. ‘Accordingly,’ adds, doc- original general is, general tzfizzeziow maintained that the eonlmozily superintend- of the court chancery ence and over protective jurisdiction is a infants delegation rights the persons property to that belonged Crown; duty it from establishment; its first .... exercised English courts from possessed by chancei'y authority parens of the.Crown this supposed delegation is, exercised courts country by more frequently patriae It the courts of States. than United States 706 except not the Federal In the Government,

state and territories of Columbia, stands, the District with reference to which persons property parens in the infants, situation patriae.” country

“In several with reference to the states stand, persons property parens of infants, in the situation of patriae. No such vested in the is United States except toas and the District The state, territories of Columbia. parens patriae, legislate protection, is authorized for the custody, jurisdic- care, and maintenance children within its p tion.” 27Am 823. Jur, Infants, Corpus

In it Juris Secundum is said: deprived parental minor, “A care and is a ward of control, sovereign power over state, whom state exercise its guardianship; legislature may and to effect such regulations protection make reasonable for the minor’s and welfare.” CJS p 50. “By generally whatever court the is it exercised, character same exercised the court of chan- cery persons power may implied over the infants, and general legislative grant chancery from a or constitutional powers.” p 43 CJS 52. construing applying

In court law of Wiscon- Supreme speaking through sin Court that state Chief (State 830) Scholl, Justice Winslow 167 Wis 504, 167 NW said: proceedings pro-

“The under this law are in no sense criminal ceedings, punishment nor result case a conviction or They simply statutory proceedings by for crime. legitimate police power, in the state exercise its or, right preserve integrity other its words, its own and future kindly way provides existence, reaches out its arm in a protection parental neglect of its children from or from (cid:127) surroundings, by keeping vicious influences either watch over the child while natural home, its or, where that seems impracticable, by placing designed an institution p purpose.” at Wis at also, See, NW. Johnson, 571, 181 Re 74 Wis NW 1 . juvenile proceeding

In a under the court law of Kansas the Supreme Court Kansas said: general way, may

“In be said that these instead statutes, attempting punish juvenile to offenders for crim- misconduct, try path of'tempta- inal or to otherwise, remove them from the by preventive and tion, corrective them means seek direct paths upon part in rectitude. It is an assertion right parens patriae state of its to exercise its as deprived proper of such of welfare its minor citizens as are parental oversight, wrong. disposed go control and are meaning country,’ applied words, These 'Father of his were originally king, designate to the and are used to refer- state, ring sovereign power persons guardianship to its over under disability. country independence, When this achieved its prerogatives people of the crown devolved of the states. sovereign by legislative 'The will made known to us enact- sovereign, parens patriae. ment. The state, as a is the .’ . . (Fontain (L ed) 80.)” Ravenel, 384, 15 369, US In US Turner, 115, 145 Re 94Kan Pac Ann 1916E 1022. Cas construing juvenile applying court act of Rhode Island Givardi v. Juvenile Court Sixth Judicial 49 Rl Dist., Supreme 142 Atl 542, the of that Court state said: general purpose plain. “The of the act is It intended humanely ages specified deal with minors of in the act, who have violated of a some ordinance who town, or have against an committed offense the laws of state, or who from specified tending various causes towards an immoral, vicious, or criminal life. aim of act is to treat minors, not criminals, but wards the state.” Supreme by was said

What Courts of Kansas Wisconsin, applicable quite respect juvenile and Rhode Island is to the state. pointed .As been out the has court law en- was first changes acted in 1911. It was reenacted with certain in 1943. Chapter provided Laws The law enacted in 1911 repeal existing the act “shall construed laws in conflict dependent, neglected with this act under and de- linquent might children as defined this act com- arrested, plained against, placed confined or taken into committed, custody, justice police courts or courts, but as to all other laws it shall be construed as cumulative and not as exclusive.” Laws Chapter 177, Sec 27. The law was construed this Court Overby, supra. ex rel. State Neville v. This Court held that giving police magistrates all justice former statutes courts eighteen over offenders under the years repealed magistrates justice were and that jurisdiction, were courts divested of such but that the district court was not divested criminal over such offenders. The Court said: legislative purpose clearly repeal

“The is evidenced the justice clause. There the intent to divest and courts unmistakably courts of all is made on the clear; purpose juris- hand other the not to divest the district court of equally p diction is manifest.” 54 ND at 307. again:

And legislative respect juvenile “The with the intent, to arrest of clearly expressed Comp is offenders, 11,416, so Sec. Laws 1913 (Laws Chapter 15), 1911, that 177, Sec no comment nec- seems essary. juvenile, bring age eighteen years, To a under the justice peace police magistrate pur- a the a before or pose preliminary aof examination in manifest defiance of the at statute.” ND 306. original juvenile provision

The court the law contained that juvenile “may any the court in its discretion case of delin- quent permit proceeded against child such to child be in ac- may governing the cordance with laws that be in force the city, village commission or of crimes violation of town ordi- or Chapter 1911, nances.” Laws 11. It will 177, noted, be this provision ages applied provisions to all children of within the Chapter provision law. In 212, Laws was years changed provide so as to that “when child fourteen charged judge or with of an older, offense, commission juvenile may permit to discretion, in his child such proceeded against in accordance with the laws or ordinances governing offense.” Laws Ch he force that such 212, Sec embody

Chapter Laws intended to and did 1943, was embody provisions relating all the of law courts. to Relating act “An The title stated that it is Act Custody and the Protection, Court Control, Juvenile amending reenacting statutory certain enact- Children” that ments are recited in the all the title which constituted existing provisions relating then courts. of law Chapter plan original main said followed the Many provisions act of 1911. identical. were Cer- changes changes tain made were but the did not detract from the efficacy purpose, scope particulars or of the law and in some strengthened enlarged scope. Chapter rather Said expressly repealed parts all acts and in conflict with acts complete juve- thereof. It measure. The originally nile court plan law as enacted 1911 established a new system dealing falling provi- infants within Chapter plan act. sions Laws 1943, adhered system. provides provi- It that children who fall within sions the law shall be considered state for wards purposes equity jurisdiction act, of such invokes the vested the constitution in the district deal court to with such children provides persons subject “their care and (juvenile) provided. control court” as thereinafter rights remedy falling act created and new and to children affords immunity provisions prosecution within the of the act from for penal they crime or for of violation ordinances to had which formerly subject. imposes upon been The law the district court specific provides certain duties. It what shall and be done what respect provisions not done with to children within the mandatory. clearly of the law. The is statute Crawford Statu- tory p Statutory Construction, 3 Sec 264, 526; Sutherland Con- p p struction, 5812, 95; 3rd Sec The 59 CJ 984. lan- ed, 582, Sec guage law intention indicates a clear that the applied falling thereof are to be in all cases children within provisions. pointed its p 59 CJ Sec 1076. As has out 633, been custody per- state assume and control direction,

710 p 55) (43 seems where the'infant 7, an infant Sec CJS

sou engaged go wrong in the commis likely has been as where he habitually vi dissolute, with lawless acts or associates sion of province persons. of the courts “It not the cious or immoral exigencies generally warrant will what conditions determine legislative assuming as is a infants, control of this the state p considering the constitution 7, 43 55. In function.” CJS Sec large ality in a meas which Illinois, court law of pattern court act of and ure formed the basis Lindsay, Lindsay Supreme v. of Illinois this Court state 1222, 1914A 892, 908, Ill 45 LRA Ann Cas 328, 257 100 NE NS said: arising prerogative out of its state,

“The protect parens duty, patriae, infants, the chancery.” has interests as always p Ill at 257 334, been exercised courts p p LRA 915. 100 NE at NS at 894, “ every right imperative duty unquestioned ‘It is patriae, government, parens enlightened in its character of .to provide well-being protect of such of the comfort infancy, understanding, as, reason defective its citizens infirmity, unable to care of them other misfortune or take performance duty justly regarded The one selves. this important governmental most and all con functions, must limitations be so understood and construed stitutional ” proper legitimate not to interfere its exercise.’ with p p p at 336, 895, Ill at 100 NE at 45 LRA NS 916.

By equity invoked the by district court is vested court, original jurisdiction equity, with of all causes constitution only jurisdiction by the with consti and is court vested Mead v. First National 103; Bank, tution. ND Const Sec p See, also, 24 ND at 138 NW at Kronschnabel magistrate supra. not vested Isenhuth, powers equity equity matters could not be supra. Bank, him. Mead v. First National conferred ND v. Dinnie et al, In McDermont NW said: Court police magistrates

“It will that their courts be observed provided being for and established the constitution. This powerless legislate the case, is the one or the ‘police magistrate’ other out existence. . The . . term justice’ ‘police meaning. has a definite and well-understood People, Allen, Wenzler v. NY J., thus defines it: ‘A police justice magistrate charged exclusively is a with the duties justice incident to the office common-law of a conservator or peace, prefix “police” merely distinguish and the serves justices having jurisdiction.’ police them- from also civil A magistrate judicial magistrate, an inferior whose statutory in the absence of constitutional or con- extensions, is arising regula- fined to criminal cases under the ordinances and municipality.” p tions of a 6 ND at 281. pointed

As has been out, court law was enacted police power. police power under the The “is an inherent attri sovereignty, bute and exists without reservation in the being duty protect constitution, founded on the of the state to provide safety good society.” its citizens order of pp 16 CJS 539-540. The “an assertion part right power of the state of its to exercise its as patriae,” parens for the welfare of children such as fall within of the act and to treat such children “not crim as supra; inals but as wards of State.” Re Turner, Givardi supra. v. Juvenile Court of police Sixth Judicial District, The power power patriae parens right of the state powers protection to exercise such for the welfare and of infants protection who are in need of are inherent in the state. In supposes deed, has been that said pre “constitution police power existence and must construed refer ence to that fact.” 11 Am Jur 969; CJS provision constitution this state purporting contains no right legislation limit of the state to enact under the right duty parens patriae. exercise its It is elementary every presumption that reasonable is in favor of the constitutionality presumption of a statute and that this is con clearly clusive unless it is prohib shown the enactment is ited the constitution of the state or the constitution of the United States. State v. First State 52 ND Bank, 231, 244,

712 by great justice: the chief 391. As was said “Let the end

NW scope legitimate, let it be the of the and constitution, be within appropriate, plainly adapted all which’are which are means to prohibited which are not but consistent with the end, letter spirit constitution, and are constitutional.” M’Cullochv. Maryland (US) 4 4 L ed 605. The attack Wheat upon constitutionality juvenile predicated the court act is upon solely the contention that the act violates North far material Constitution of Dakota section which so provides: here provide by legislative assembly

“The for the election shall law police magistrates incorporated villages, towns, in and cities, jurisdiction arising to their of all under who addition cases villages, cities, shall be ex ordinances said towns justices peace county cities, in which officio said villages may located.” towns support petitioners this cite the decision contention al, 294. in McDermont v. Dinnie et ND NW Court wholly from involved in the cited are different

The facts case so applica- no that the there has those involved this case decision municipal establishing a tion here. That case involved a statute incorporated city having population each the state court in provided expressly statute of 5000 inhabitants or over. Such jurisdiction municipal over “exclusive that such court shall have city it is established all ordinances of the in which violations of from the time of its creation all magistrates by powers police in such cities heretofore exercised municipal p 6 ND at It that the cease.” 279. is obvious in- in that was involved case established statute court arising supersede police magistrates in all cases tended such new court was ordinances of which under the police magistrates’ court. in effect abolish established “by that case in its decision in said this Court As magistrates are language constitution of the statute Obviously swept no such ND at out of existence.” 6 juvenile sought court created created situation purport juvenile confer act not court does act. arising any

juvenile the ordi- cases under court city, village town or or authorize the court nances judgment pronounce sentence for the violation of render Proceedings ordinances. under the .such arising action under are in no a criminal action or an sense punish an one who has violated the ordinance. The ordinance to proceedings simply proceedings act' under the legitimate power, “by the state in the exercise of its integrity right preserve its to or, in other its own words, kindly way pro- in a future reaches out its arm existence, protection of in its children” who are need of such vides protection. supra. Scholl,

State v. constitutionality It well that all doubt the settled as to a arising including statute doubts and uncertainties from the con as as the statute “should he stitution well resolved favor validity upheld and that the the by statute” statute will be clearly appears

the it that it courts unless p violates the con People seq; 264 et McBride, stitution. 16 v. 234 Ill 146, CJS Rep People Guagli 84 NE Am 82, 14 994; Ann 865, 123 St Cas v. 362 Ill NE

ata, ascertaining 200 103 ALR 427, 432, 169, 171, 1039. In 1035, general purpose, meaning,

the intent “and well as as part constitution or it should he thereof, construed as a p whole.” 16 11 23, 62; CJS Sec Am Jur Law, Constitutional seq; 661 et 53, Sec ex rel. Germain Ross, 630, State v. 39 ND Goughnor 170 NW ND 121, 124; Brandt, NW

Considering scope the constitution a whole, as the of the law- making legislature relationship the and the between the state and under cities the constitution there could have been part'of intention no on the the framers the constitution that provision of the Constitution that magistrate arising shall have of all cases under the city any impede ordinances should manner restrict or general law-making power legislature. of When arising framers of the constitution referred under the “cases they ordinances of said cities” that the knew cities would have right inherent no to enact that could ordinances; ordinances only pursuant authority by enacted conferred law. cities naturally That such ordinances would relate to inci- matters municipal government of local concern. 16 CJS dental question pp the ordinances could arise under That no 339-340. possible by excepf legislature city any made that had of authorizing as punishment That no could be enacted. ordinances to except legis- any imposed ordinance violation of by legislature prescribed had authorized law, had lature any legislature, city prescribe at That the ordinance. might authority withdraw the to cities fit do so, time it saw to supersede invalidate ordinances to enact ordinances, authority. It clear that had enacted under such seems been legislature lawmaking power lim- was affected or not any might enacted. That the have ited legislature ordinances cities any city required whether had to ascertain

was not any awith that would conflict statute enacted ordinance enacting. legislature any at That the time was might law it fit to enact unless contravened enact saw provision of the Federal Constitution. some State or That in conflict with an ordinance that had been event statute prevail and the ordinance or the statute would enacted super- parts with the statute be of ordinances conflict would juvenile The court and rendered invalid. law relates to seded concerning concern, powers. which the of statewide matters legislature —matters powers were not- had broad Such affected legislature might authority granted any have or restricted by any city or that a ordinances, to might to enact ordinances cities authority. pursuant to enacted such have Chapter operated became effective it 212, 1943, Laws When any repeal supersede provisions statute, of and to to former any provisions any city invalidate the ordinance and Chapter provisions of conflicted with the said Homer v. 673, 152; 326 Mass 96 NE2d v. Illinois River, Fall Geneseo Pipoly 89, 363 Ill 1 NE2d 392, 394; Northern Utilities Co., ALR, 20 125 P2d 515; 147 Richards v. Benson, 366, 482, Cal2d City Loving, 666, 885; 305 Mich 9 NW2d Ex Parte Pontiac, Municipal Corporations, 2 508; McQuillin, 178 Mo 77 SW Chapter pp By 18-19. said 212, the ed, 4.05, 3rd Sec eighteen years any age child under that when declared has an act or is of the- committed situations conditions Chapter 8(1), (NDRC specified in Laws 27- 1608(1)), shall he considered ward of the state and the child subject person guardianship be to the and care, control his provided juvenile juvenile court as court law. The right guardianship its state thus asserted its parens patriae within the over all children who fall juvenile delegated authority guard court its law, ianship person juvenile child over the court equity jurisdiction thus invoked the of such court and consti McQ p tuted the ehild ward of the court. 43 55; Sec 7, CJS Municipal Corporations, Pomeroy’s ed, 3rd uillin, Equity 46; 5th

Jurisdiction, ed, 1304, 1305. Sections years age. Arthur Helland and Thomas Smith were 16 Un- juvenile they der the terms of the court law must be considered subject persons wards state and their were to the care, guardianship juvenile proceed- control and all court, ings concerning them on account of the violation of a ordi- required juvenile nance were to be initiated court and juvenile policeman provided conducted as in the law. court The custody purpose arrested them held them in for the .who taking having immediately juvenile them to the them, taken, only court. years Arthur As Helland and Thomas Smith were juvenile might have waived permitted police magistrate them be tried before but permission given. no such was Whether the juvenile should waived and said Arthur Helland permitted proceeded against Thomas Smith in accordance charged they ordinance it had violated a was question preliminary exclusively court. 43 pp opportunity 234-235. The court had CJS no to de- n question. termine such court did not waive its grant permission. and Arthur Helland Hence, subject and Thomas Smith to he and and continued were within magis- police to the of the the and court, authority against try trate was without the cases them for violating judgment the ordinance and to render of conviction and pronounce upon them sentence for such violation.

Accordingly they liberty illegally were their restrained of City of of thé of the Chief Police Minot and the district court directing they holding discharged correct in so custody. police from his- made in the Entries docket of the magistrate that said Arthur show Helland and Thomas Smith pursuant were released to the distinct to the of writs corpus day application habeas on the for the writs was heard. It from follows what has been that no said has cause proceeding disturbing shown in this for been decision of corpus district court in the of such issuance writs of habeas ordering in that Arthur Helland and Smith be application Thomas released custody of from of Chief Police. The of the petitioners supervisory directing for a writ that such action of the district court be set is denied. aside JJ., concur.

Grimson Sathre, Dissenting. original proceeding Morris,'Ch. J. This is an supreme City court -wherein the Chief of Police of the Magistrate City Minot and the Police Minot re- seek a by supervisory view, writ of this of the action of Honor- court, Judge County, A. Gronna, able J. of the District Court Ward issuing corpus upon hearings habeas writs thereunder discharging custody police, from of the chief of Arthur Helland and Thomas Smith. years age.

Arthur Helland and Thomas Smith are sixteen They August evening on were arrested an 11, 1952, department police City charged of’the officer of Minot and disorderly conduct, an offense under the ordinances of They City guilty charged of Minot. to the offense before pled police magistrate who each of them to sentenced city jail period days pay confined to the of ten amounting a fine of and the action, costs of an addi- $5.00 payment tional default each $5.00, costs, of fine and days jail. day an ten was sentenced to additional On the application Honorable A. J. offenders, sentence, Judge County, of. the District Court Gronna, issued Ward directing corpus writs of the chief to deliver habeas hearings the district offenders to court. At the these on

717 district determined that were court offenders writs, imprisoned commanding illegally the chief and issued orders custody. police discharge them from to petition City A in this was filed officers of general superintending invoking power Minot control proper deeming and courts, we, over inferior case jurisdiction exercise of the vested this court the constitu- (See ex rel. ND tion, Broderick, Johnson State 849) issued an order to the district court cause NW2d show why orders, discharge directing the should his the offenders accordingly not be reviewed and The district court set aside. hearing arguments made had his return, presented City of on behalf of the officers of the Minot on behalf of the offenders. respect

The with arrest, facts offense, sentence of problems are offenders each case and the same boys petitioning corpus identical. The writs habeas granting position and the district court in the writs took the Chapter because certain 27-16 NDRC commonly law, known as the magistrate City wholly jurisdiction of Minot was without to sentence offenders for violations of ordinances of city. question ages There is no as of the offenders or the commission of the offenses. functioning court is fact the district court special (Section 1943).

under a statute 27-1601 NDRC Section ;- provides: 103 of the North Dakota Constitution original jurisdiction, except “The district courts shall have provided otherwise in this all constitution, both causes at equity, appellate law and and such be con- They judges ferred law. and the thereof shall also have corpus, quo to issue writs of habeas war- injunction original ranto, certiorari, and' other and remedial authority hear writs, determine the same.” provides: Section 111 of the Dakota North Constitution county original jurisdiction “The court shall have exclusive . probate testamentary matters, . ...” Section of Minot on City rely The authorities : on, provides Dakota Constituti North election by law provide shall assembly “The legislative villages, and towns, cities, incorporated magistrates of police under of all cases arising their jurisdiction in addition to who be ex villages, and of said towns cities, the ordinances cities, in which said of the county of the peace justices officio assembly the legislative located. And and be villages may towns to'hear, the jurisdiction magistrates said confer may police prosecu- and the misdemeanors, all cases try and determine by information.” shall be tions'therein magistrate the police that under section

It is contended by offenses juveniles, all involving cases jurisdiction has inso- that, and under ordinances adults, arising well as a deprive police magistrate act may far as- the it void. him, vested is constitutionally thus jurisdiction quoting after In McDermont 6 ND 69 NW Dinnie, v. this court said: Constitution, North Dakota 113 of the Section their courts that magistrates “It will be observed police being This the constitution. and established provided by for the one or legislate is case, powerless in terms admitted is proposition other out of existence. This and, no au- elementary, respondents, the counsel for being ‘police or magistrate’ need cited. The term ‘police thorities Allen, J., meaning. a definite well-understood justice’ has jus- it: ‘A 58 NY thus defines Wenzler People, incident with the duties charged exclusively tice is magistrate the peace, justice office of a conservator the common-law them from “police” distinguish and the serves prefix merely A police magistrate civil jurisdiction.’ also justices having in the ab- whose judicial magistrate, an inferior confined to or statutory extensions,-is sence of'constitutional and regulations cases under ordinances arising criminal magistrate over by Hence a court such municipality. presided entitled to seal, never had was record, never a court of 113 the con- observed, also, a clerk. It will Section a certain absolutely magistrates upon police stitution confers of all arising cases under to-wit: jurisdiction, villages, juris- cities, of said towns, ordinances also county justices peace.” diction ju-

Under Section of the North Dakota “The Constitution dicial of the state North Dakota shall be vested in a district, supreme county justices court, courts, courts, peace, other courts as be created law for incorporated villages.” Concerning cities, towns this sec- supra: it said in McDermont tion, v. Dinnie, “Undoubtedly, legislature, under the consti- Section might incorporated create additional tution, cities, courts villages; towns, and' cannot but abolish those established the constitution.” , County In Becker ND Sand and Gravel Co. v. Wosick opinion by Judge in an 454, 245 written 740, NW Christianson, quoting 85, after Section said: provision

“This constitutional inhibits the from abolishing any of the courts therein from dimin- enumerated or ishing increasing jurisdiction (Citing or their . . Mc- . supra.) Dermont v. Dinnie, Espeland Magistrate’s City

In v. Police Court of Grand again spoke through ND Forks, 78 49 NW2d 394,this Judge syllabus by consisting and in Christianson the court, : present of all the we members, said magistrate police justice peace

“A is ex officio of the of the county city police mag- in which the in which he office holds as police magistrate juris- istrate located. As he has exclusive try arising diction to all hear, determine cases under the city; justice peace of the ex ordinances as officio of the he has jurisdiction justices peace with, concurrent county in all civil actions and in all criminal actions for offenses against county. laws state committed within the ND Const, 113; NDRC 1943,40-1801.”

In Section 40-1801NDRC 1943it is said: magistrate city village justice

“The within and the peace village jurisdiction within a each shall have exclusive try, against of, and hear, shall all determine, offenses city village, ordinances of the as the case be.” or 720 provides: 40-1110 NDRC

Section “Any brought any any pen- action recover to enforce fine, alty/ punish' any violation of an 'or to ordinance of munici- pality brought corporate municipality shall be in the name of the (cid:127) plaintiff.” as Village of Litchville v. 19 ND Hanson, 124 NW we find that:

“City village though penal or ordinances, in character, are not city village criminal laws. Prosecutions under are ordinances not prosecutions that covered section the Constitution which reads: ‘All by authority in the name and of the state village of North Dakota.’ Cases under ordinances, while resembling being penal proceedings, criminal in cases are not, strictly speaking, proceedings.” criminal are

These over cases which Section 113 vests police magistrate in courts.

Under Section the district constitution courts given general original jurisdiction, except pro- otherwise provided by vided. It was otherwise Section 111 which county given probate were .courts exclusive mat- provided ters. It was also otherwise which, Section quotations upon police we have stated in above, confers magistrates jurisdiction arising all cases under the ordinances villages. may of' cities, towns, and It noted Section uses word “cases,” while Section uses word “causes.” These words as used in these two of sections the constitution are synonymous import a state of facts furnishes oc- jurisdiction casion in each instance for the exercise Dodge, court. v. Buell Cal 553. pointed incorporated through general

It out that cities are legislature they of the and that are creatures of statute subject legislative to will. Frazier, See ex rel. v. State Shaw Fargo, Fargo 510; 39 ND ND NW North v. Fargo 977;

NW v. Paulson, 56 ND Sitte 216 NW 344; 76 ND Sathre, 36 NW2d 39. none cases was a these .In municipal jurisdiction fallaciously court or its involved. It is legislative authority governmental that the assumed over the proprietary powers jurisdiction cities extends pertinent magistrates. constitutional An examination police apparent. the error makes municipal corporations and consists VI deals with Article only reads: 130,which of Section by general assembly provide legislative law for shall

“The restricting pow- corporations municipal organization their money borrowing levying and assessments, taxes ers as money by contracting loan or assess- taxation, raised debts, purpose any purpose not diverted to other ment for authority except by of law.” wholly regarding the creation

This article and section is silent municipal corporations. organization This within courts eloquent significant we turn itself becomes when silence is department dealing judicial and consist- to Article IV By ing '85 to 120 inclusive. this article the constitu- of Sections system up complete judicial supreme from tion itself sets including police to and the courts of the state down magistrates magistrates. courts not The creation of legis- legislature. Neither could the of the left to the discretion by general nor law, their could the lature determine legislative increased or diminished thereof be County Wosick, Gravel Co. v. Becker Sand and enactment. See power legis- question supra. here one of the The is not legislature of the over cities, over but one of lature system prevailing judicial decision views of the state. police magistrate municipal incident of mere the government. ' part integral me court is an coor- To government judicial not of the state created dinate branch component part legislature made a constitution and but judicial system. that the itself interest here to note has It is of responsibility for the creation to assume reluctance shown jurisdiction beyond their and the determination of courts Thirty-third prescribed by recent At the the constitution. now assembly Legislative Assembly 'the re- of North Dakota itself jected if Resolution C submitted which, Concurrent Senate repealed approved would have amended or electorate, and 722 constitution, pro- Section including

various sections and have that “The municipal provided for would courts, viding North Dakota be vested in judicial power State may other courts as Courts, District Supreme Court, law.” The of this resolution indicated a rejection be created by the courts and legislature permit on the part desire remain for in the presently their jurisdiction provided constitution. to the 113 is a and direct mandate legislature

Section .plain cities, election of incor- provide police magistrates “who addition to their towns, jurisdic- porated villages cities, of all under tion cases the oi’dinances of said arising peace ex . . .” villages, justices towns shall be officio . that the cannot dimin- inescapable The conclusion is legislature ish police magistrates jurisdiction by transferring part primarily it to another court. The here in question not not curtailed or judicial, municipal abolished general law. with procedure juve The books contain cases many dealing myriad nile under statutes. search divergent Diligent courts revealed no our has constitutional' such as Section provision none citation re has been cited to us. Neither search nor been single permitted veals case where the' has jurisdiction. conferred An anal impinge constitutionally Lattimore, 362 Ill People situation was v. ogous presented NE 275, wherein is said: 206, 199

“Article 6 of the 1870 created judicial Constitution our of that the criminal court of system. By section 26 article Cook defined. was established and its While county circuit court a court of yet juris general jurisdiction, diction the circuit court of is not county necessarily Cook in all the circuit other respects same courts.of counties of It does not have state. concurrent causes, jurisdic criminal court Cook of criminal- but county- our tion of cases is section 26 of Constitution placed criminal county. in the criminal v. People Feinberg, Cook NE Ill 181 NE 260 Ill 437; People Warren, Legis jurisdiction. juvenile The of limited court is court authority an inferior court the to confer lature is without proceed by stay power from the a court created Constitution expressly jurisdiction ing of which is trial of a cause the with opinion, by it granted Nor, in the it the our Constitution. attempt power upon legislative to confer such intent to People 362 Ill ex rel. Malec v. Lewis, also court.” See NE 276. 229, 199 by of statute created while cities creatures state, this authority pre- limits under of and within the including by courts, most of those constitution, our

scribed police magistrates, of the itself are creations constitution of the by jurisdiction provided courts wherever the these and, abrogated by legisla- or it not be altered constitution, applies respect rule to the courts same tive action, magistrates applies that district court and the supreme court. depart- government form of the three

“In the constitutional judicial depend legislative, for their executive, and — ments— organic powers law of the Hence, state. Constitution on power authority every court, is the common source concerning jurisdiction questions of a must all exception by of certain in- instrument, determined courts] right belong powers to all Therefore, herent perform authority of a court to a contem- or unless plated in the or the laws enacted can be found Constitution act jurisdiction and its acts are invalid. thereunder, it without prescribe legislature may, proper bounds, within while the Thus, jurisdiction practice procedure for the exercise rules abridge enlarge powers cannot or conferred on courts, away jurisdiction thereby take vest- them the Constitution Courts, 14Am 163. Jur, ed them.” Section “Except legis- the constitution, far authorized so reorganize, divide, or consolidate abolish, lature cannot- consti- juris- diminish the nor alter or essentials courts, tutional judicial powers on conferred such courts.” diction, functions, CJS, Courts, Section I other than that the district act- can reach no conclusion m

ing aas court cannot interfere with the police magistrate court which has obtained of a person years age’and eighteen years over fourteen under arising opinion a case under a ordinance. This would here end but for the fact that much has been written and said jural clarify which tends to obscure rather than history issues. The development in America courts shows justice respect a noble shift in the administration of with punishment from children to rehabilitation. This movement sprang prerogative parens'patriae from the of the state as protect powers the interests of children. But like all other of state, be exercised in must accordance question policy of the constitution. The here is not one of social powers. finally people speak but of constitutional The first through supreme their which constitution is the law the of state parens patriae yield to which the of doctrine must in event of government conflict. still “a of This is and not men.” laws of proponents of The the writs seek solace in obiter dicta to be Overby, in the of found ex rel. Neville case State ND54 opinion light 209 NW 552. The in that case must be read in-the only of issues then before the court which involved the crimi- jurisdiction jurisdiction nal of the district court’ versus of acting the district court aas court. The case concerned state statutes and not criminal ordinances. There nowas question question jurisdiction of constitutional and no of the police magistrates of under Section 113 of the constitution. This clearly by opinion the court in is thus stated its as follows: question are not concerned “We with-the police magistrate justices peace over of- against persons fenders law. behalf the whose writ by corpus prosecuted, not habeas are held virtue of a com- magistrate justice peace; or- mitment issued judgment they felony are held virtue of conviction which in the district court has exclusive over such- offenses.” (cid:127) argued legislature age

It has to fix the at may responsible criminally which children be held to be and that age-may either-absolutely it follows that the be fixed -or condi- respects, depending, 'tionally. true This how- in'some age the conditions. . The has.-fixed the ever, responsibility criminal state Section 12-0201 NDRC provides that: capable persons except committing “All crime those following . belonging to the classes: age years;

“1. under the Children seven years age “2. over the Children of seven but under the years, proof of fourteen in the clear absence of that at the time committing neglect charged against they the act them knew wrongfulness its applicable

The rules thus stated are to all courts. Our Chapter purport change law, 27-16 NDRC does not capacity modify according the'rules to commit crime. But proponents juve- to the views' of the writs, it vests in the jurisdiction superior police magistrate nile court to that of against city child courts over offenders ordinances. It does not incapable purport committing amake .child the offense. It just opposite strongly says: infers when it years age charged child, “When fourteen older, juvenile judge with commission'of an offense, court, permit may proceeded against his discretion, such child to be may in accordance the laws or ordinances which inbe force governing such offense.” Section 27-1613 NDRC 1943. recognizes years that a

Thus fourteen child capable committing older an itBut offense. is claimed that judge court, of the not the statute, not the consti proceeded whether tution, determines the offender against governing in accordance with ordinance of power purports fense. The which the statute thus vest in judge directely collides with the police magistrate, 113 of under Section constitution. being supreme, yield.

constitution the statute must case judge powers relying of the..district court, purports give judge statute him as court, erroneously reached the conclusion that he had the police magistrate divest the court of the which it acquired against had over the two offenders ordinances improvidently Belying upon he City statute, Minot. proponents corpus freeing writs of habeas writs

issued custody. from J., concurs.

Burke, 7346]

[File No. Defend Respondent, CHRISTMAN, KNELL, ED SAMUEL Appellant. ant and 293)

(59 NW2d Opinion May Rehearing July filed denied 29, 1953.

Case Details

Case Name: State Ex Rel. Minot v. Gronna

Court Name: North Dakota Supreme Court

Date Published: Jun 5, 1953

Citation: 59 N.W.2d 514

Docket Number: Cr. 248

Court Abbreviation: N.D.