(concurring specially). This was a criminal prosecu*424tion before a justice of the peace under the act relating to certified public accountants, Laws 1913, chap. 2. The justice of the peace appeals from an order or judgment dismissing the prosecution for want of jurisdiction. The points in the case are three:
1. The justice of the peace was not a party to the action and in no manner interested in the judgment or the dismissal, and hence he had no right to appeal. That point needs no argument.
2. The prosecution was without the consent and against the will of, the state’s attorney.
3. The complaint does not state a cause of action.
So far as material, the statute is as follows: Sec. 3. — ■
“Any person in order to assume the title of a certified public accountant, on the abbreviation C. P. A., or any other words, or letters, or abbreviations, tending to indicate that the person, firm, or corporation, so using the same, is a certified public accountant, must receive a certificate as a certified public accountant.”
The complaint is based on that section. It avers that defendant did' commit the crime of misrepresentation as a certified public accountant; that he did wrongfully and unlawfully assume the title of a certified public accountant of this state, and by misrepresenting himself as such,, made and submitted to the board of auditors, and senate and house of ‘representatives of the state of North Dakota, a certain audit of the books and records of the Bank of North Dakota, he, the said Herman G! Brissman; not having received a certificate as a certified public accountant. The complaint is drafted under that statute, but the statute does not create a crime because a violation of th¿ command is not made penal or in any way punishable.
“A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, a punishment or penalty.” Comp. Laws, § 9195.
Obviously there is no penalty or punishment annexed to the violation of § 3, and hence the section does not create a crime. The averment of the complaint concerning the defendant, does not charge him with a crime any more than if it were that the moon is made of green cheese. The justice of the peace had no color or shade of jurisdiction; that is so obvious that it is in no way debatable and it seems that lawyers, hav*425ing regard for their reputations, should be .moré careful how they prosecute such groundless cases, and appeal same to this court.
In this case the state’s attorney did not approve the issuing of a warrant and for good reasons he disapproved it. The rule is that criminal prosecution must be conducted in the name and by the authority of the state, and by the state’s attorney, and such -is the statute:
“When a complaint is made to a magistrate, charging the commission of a public offense, before issuing a warrant, he must submit the matter to the state’s attorney, for approval, or disapproval, and if the state’s attorney disapproves, no warrant shall be issued.” § 10,535.