This whole case is contained in proceedings had under what is known as the juvenile law of this state. That the child Alf. Stensby was a delinquent child does not mean there were any criminal proceedings against him. The term "delinquent" is a broad term and does not necessarily mean one who had committed acts criminal in their nature. There is no suggestion of any criminal proceedings whatever in this matter.
There is no dispute as to the facts. Alf. Stensby was brought before the juvenile division of the district court under the provisions of chapter 177 of the Session Laws of 1911, being chapter 23 of the Code of Criminal Procedure of this state, known as the "Juvenile Court" Act, on the charge of being a delinquent child. No criminal complaint or information was filed against him. All of the proceedings were had under what is known as the juvenile law. On February 20, 1928, the court committed him to the state training school of this state otherwise known as the Reform School. On the 6th day of September, 1928, this minor became eighteen years of age. It is the contention of the applicant, that the superintendent of the state training school has no further control over the minor and that the juvenile branch of the district court *Page 380 has no further jurisdiction over him because the said minor has now reached the age of eighteen years.
It must be conceded that under the provisions of this chapter 23, providing for a juvenile court, when a minor attains the age of eighteen years he ceases to be a ward of the district court so far as the purposes of that act are concerned unless certain legislation subsequently adopted affects the situation, for under the provisions of § 11,402 of the Compiled Laws "all dependent, neglected and delinquent children under the age of eighteen years, shall, for the purposes of this act only, be considered wards of this state and their persons shall be subject to the care, guardianship and control of the court as hereinafter provided." As said in the Solberg Case — Re Solberg, 52 N.D. 518, 525, 203 N.W. 898 —
"The law gives parents the right to the custody of their children. There is no express provision in the juvenile court law to this effect but nothing therein is inconsistent with the general statutes that have been in force since early territorial days. Comp. Laws 1913, § 4424; Sess. Laws 1923, chap. 153. The amendment of 1923 gives both parents the same right in this respect and is subsequent to the Juvenile Act. It is only when it is made to appear that the parents and the parental home fail adequately to meet the responsibility of caring for the child that the state is justified in substituting itself as its guardian."
It is clear therefore that under the provisions of § 11,402 the state substitutes itself as the guardian of the child "for the purposes of this act only" and until the child is eighteen. Ordinarily children are not considered wards of this state. It is "for the purposes of this act only" they are so considered wards, and there is no provision whatever making them wards of the state after they are eighteen. It is essential to keep this in mind because if Alf. Stensby is to be detained in the state industrial school he must be detained as "a ward of the state" and not as a "criminal." He is not a criminal nor charged with crime.
It is the claim of the respondent, however, that certain legislation adopted in 1913 modifies this juvenile law so that a delinquent child, proceeded against in the juvenile court, remains a ward of the court until twenty-one years of age regardless of sex. *Page 381
Prior to that time we had on the statute books § 10,401 of the Code of 1905 which provided that "whenever any person under the age of eighteen years shall, in any district court of this state, be found guilty of a crime or public offense, other than murder, such court may, if in its judgment the accused is a proper subject therefor, instead of entering judgment against such person, direct by an order to be entered in the minutes of the court, that such person be committed to the state reform school for the remainder of such minority."
In 1913 the legislature of this state enacted chapter 242 of the Session Laws of 1913, amending § 10,401 of the Code of 1905 by increasing the age from eighteen years to twenty years and giving the same power to a "county court having increased jurisdiction." Another amendment was made by the legislature of 1925 (chapter 196 of the Session Laws of 1925) but we need not consider either. It is clear, that this statute with its amendments is not applicable to the case at bar because the minor involved herein has not been "found guilty of a crime or public offense" in any court. Therefore this minor cannot be detained by the superintendent of the state industrial school under the provisions of this law with its amendments as found in Section 11,281 of the Supplement. This law provides for an extension of the time of detention for a minor found guilty of a crime; but it does not extend the time of wardship under the juvenile law. The guardianship under the juvenile law is for correction, instruction and education and has no suggestion of criminal procedure. The juvenile law is a charitable, and educational act; whereas this one under consideration is providing for training, control and discipline of a child branded as a criminal.
This legislature of 1913 passed this statute also:
"In all cases where under the laws of this state the judge of the district court is authorized to sentence a person to the state reform school during the minority of such person, the person sentenced shall, regardless of sex, be deemed a minor until the age of twenty-one years is reached." Chapter 241 of the Session Laws of 1913 being § 11,282 of the Compiled Laws of 1913. It is the contention of the respondent that this law is applicable to the case at bar.
This statute is entitled "An act defining minority as regards persons sentenced to the state reform school." It does not purport to *Page 382 amend any of the provisions of the juvenile law; it makes no reference whatever to any provision or section of the juvenile law, and it does not purport to amend any law, it does not even state that "all acts and parts of acts in conflict with this law are hereby repealed" which is the usual clause where it is presumed to come in conflict with some other law. It is an independent enactment. It cannot be said the legislature did not know of the juvenile law hence we cannot concede that the legislature intended in any way to amend the juvenile law unless the provisions of this law are so diametrically opposed to and irreconcilable with the provisions of the juvenile law that both laws cannot stand.
Again, the legislature of 1915 amended the juvenile law by making provision for juvenile commissioners and said that this was "In order to more fully carry out the provisions of chapter 177 of the Laws of the State of North Dakota for the year 1911 entitled `Juvenile Court' (same being §§ 11,402 to 11,428 inclusive, Compiled Laws of 1913)." It is clear the legislature of 1915 deemed that under the provisions of the juvenile law the minor ceased to be a ward of the court at eighteen for it expressly refers to § 11,402 in its entirety and makes provision for the sending of these minors "to the reform school or other institution of this state." The legislature did not consider that chapter 241 of the Session Laws of 1913 worked any amendment to the juvenile law even as to age. Again, the legislature of 1921 adopted amendments to the juvenile law and said in § 1 of chapter 83 that "In order to more fully carry out the provisions of chapter 177 of the Laws of the state of North Dakota for the year 1911, entitled `Juvenile Court' (same being §§ 11,402 to 11,428 inclusive, Compiled Laws of 1913)," the district court shall appoint two juvenile commissioners. The same section makes provision for the sending of the minor "to the reform school or other institution of this state," and makes no reference to chapter 241 of the Session Laws of 1913 but specifically refers to § 11,402 setting the wardship of minors up to eighteen years of age. Evidently this legislature had no thought that such chapter 241 of the Session Laws of 1913 amended the juvenile law or had any bearing upon it. That the legislature of 1923 regarded only minors under eighteen years of age as being wards of the court must *Page 383 be clear from chapter 168 of the Session Laws of 1923, for it said in § 1 of that act:
"At the trial of a minor under the age of eighteen years charged with any crime, the judge or magistrate, prior to his being brought into the court room, shall clear the same of all persons, except officers of the court, attorneys, witnesses and relatives."
Why "a minor under eighteen years?" Evidently because such minor is "a ward of the court," and one over that age is not. It was only when the minor was under eighteen that the court room should be cleared but when the minor was over eighteen the court room need not be cleared. It is clear this legislature contemplated that it was only minors under eighteen who are wards of the court.
Further it will be noticed that this law — chapter 241 of the Session Laws of 1913 — is limited to persons "sentenced" to the state reform school but does not purport to affect those "committed" under the provisions of the juvenile law. To amend the whole juvenile law so as to make minors wards of the state in certain cases until they reach the age of twenty-one years it is necessary to do violence to the word "sentence," to stretch it to include the word "commitment" and also amend chapter 177 of the Session Laws of 1911 — the Juvenile Court Act — when the legislature made no reference whatever to this act in chapter 241, either in its title or its language, or even by providing for the repeal of anything in conflict therewith, and when subsequent legislatures did not contemplate that chapter 241 was applicable to the juvenile court law.
It is said that unless this word "sentence" be so defined and unless we consider chapter 241 amends the juvenile court act there was no need for the enactment of chapter 241, that its provisions were all included in chapter 242 and therefore it was a useless piece of legislation. Chapter 241 contemplated a trial for a criminal offense, and that the court was proceeding to sentence a minor. It may be it was unnecessary. It may be that the same legislature passed two laws covering the same identical subject when one was sufficient; but it will be noted that chapter 242 was a house bill and chapter 241 was a senate bill and that both were approved in March, the former two days after the latter, and it is quite possible that the legislature in the hurry of the close of the session overlooked the fact that when it approved chapter 241 *Page 384 similar provisions were incorporated in chapter 242. However this is not surprising for chapter 242 being a house bill would be passed by the house during the time that chapter 241 was being considered by the senate. The records of the two houses show this. Thus when chapter 241 came from the Senate the House had already passed chapter 242 and proceeded to consider chapter 241 while the senate having passed chapter 241 proceeded to consider chapter 242. At the time these statutes were before the legislature in 1913, as to-day, a female is of age when she reaches 18 years. It is conceivable the legislature had this in mind and that these laws were intended primarily to apply to girls — both dealing with criminal prosecution. When § 10,401 of the Compiled Laws of 1905 was adopted we had no juvenile law and so that matter of being "wards of the state" was not in contemplation. We have no reason to believe that when this section was amended by chapter 242 of the Session Laws of 1913 that the legislature had "wards of the state" in contemplation. It was merely amending a law dealing with criminal prosecutions. What reason have we to believe the same legislature had the juvenile law in mind or "wards of the state" in contemplation when it adopted chapter 241, conceding both laws cover the same ground? We must so consider it or amend an entirely different statute dealing with an entirely different subject by stretching the word "sentence" to include commitment and to repeal or amend by implication when a statute makes no reference whatever to the laws sought to be amended, and thus invade the rights of parents in their children and to the custody of their children without any definite or clear cut act of the legislature.
It will be interesting to know when this child ceased to be a ward of the state and became a criminal so as to require his detention in the state industrial school. The only proceedings against him are under the juvenile law and as said before there is no suggestion of criminal matters in the case. He ceases to be a ward of the court at eighteen — the juvenile law simply exercised guardianship over a ward — nevertheless the majority of the court says he may be detained until he is twenty-one years of age because of a law which says a child may be "sentenced" to the state industrial school. This child was never "sentenced" to the industrial school; he had committed no crime. The juvenile law has not been amended in any particular, unless we *Page 385 stretch our imaginations to say that chapter 241 of the Session Laws of 1913, being § 11,282 of Compiled Laws, amended it when no reference whatever is made to it. Thus the child cannot be held under the juvenile law — the law under which he was sent to the state industrial school. It is unique procedure to transmute proceedings, intended to be helpful and educational for an unfortunate child during a guardianship provided by law, into proceedings intended for the criminal child, by the mere passage of time. When does the juvenile court cease to function and the other branch of the district court take charge? It would only have been fair to have given the child an opportunity to contest this and to show that he is not a criminal, nor subject to statutes dealing with crime. If the holding of the majority be correct, then any child, no matter how unfortunate through dependency or neglect, may be held as a ward of the court until he is twenty-one if the court deems it wise, provided the proceedings are commenced before he is eighteen years of age. Certainly there is no such provision in the juvenile law. We learn now that a law intended to express the kindness, charity, and fostering care of the state in protecting minors under eighteen and until they are eighteen, is broadened until by its provision through amendments these same unfortunate minors can be sentenced to the state industrial school until they are twenty-one. To do this should require an amendment so certain and definite in its terms as to leave no question about the intent, instead of stretching the term "sentence" to mean "commitment."
To my mind the superintendent of the state industrial school has no more control over this child, for the child has now reached the age of eighteen. He was not "sentenced" to the industrial school but merely sent there for instruction and education and training until the wardship ended and the guardianship of the state ceased. I am authorized to state that Judge Burke concurs in this dissent. *Page 386