(dissenting). The constitutional parceling out of the jurisdiction of the various courts is complete. Jurisdiction is specifically assigned as to almost every conceivable subject, but out of superabundant caution, the framers of the Constitution made the circuit court the residuum of all unassigned jurisdiction. It is only where a subject is not found within the list of those specifically assigned to other courts that it falls within the residuum clause of the jurisdiction of the circuit court.
The statute now under consideration with reference to the consignment of children to the place of refuge provided for in that statute is not one for the punishment of crime, and, of course, does not fall within the criminal jurisdiction vested in the circuit court or of the justices of the peace. It comes within the range of that subject which embraces the care and custody and protection of infants. The jurisdiction of that subject-matter is expressly vested by the Constitution in the probate court. Section 34, article 7, provides that a court of probate shall have “such exclusive original jurisdiction in matters relative to the probate of wills, the estates of de-' ceased persons, executors, administrators, guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law.” At the time of the adoption of the Constitution of 1874, circuit courts had exclusive jurisdiction over the persons and property of infants. The act of April 22, 1873, conferred that jurisdiction on the circuit court, and provided for the appointment of guardians, both of the person and of the estate of minors, and also provided that guardians of the person of a minor should be entitled to the “charge, custody and control of the person of his ward, and the care of his education, support and maintenance.” Kirby’s Digest, secs. 3776, 3777. All of that jurisdiction passed to the probate court under the provision of the Constitution quoted above. That jurisdiction is exclusive, but it does not supplant or interfere with the jurisdiction of chancery courts over that subject exercised on independent equitable grounds. State v. Grisby, 38 Ark. 406; Watson v. Henderson, 98 Ark. 63.
The matter of adjudicating the question of propriety of sending a child to the refuge provided by the statute could, therefore, be vested in the probate court as a part of its jurisdiction over the persons of infants without impairing the jurisdiction of chancery courts on independent equitable grounds according to the doctrine of the two cases cited above and without encroaching on the criminal jurisdiction of the circuit court. Ex parte Baker, 121 Ark. 537. In the Baker case, supra, we held (quoting from the syllabus) that “giving circuit judges jurisdiction over an insane person acquitted of a crime on the grounds of insanity” is “not an invasion of the exclusive jurisdiction of the probate court. ’ ’
In Watson v. Henderson, supra, Judge Wood, speaking for the court, quoted with approval from another case, as follows:
“Equity sits silent in the courts as long as the law is able to meet the demands of justice; it aids the law, but is not officious in its services. Equity distinguishes between the shield and the sword. To protect the estate from a danger which the infant, because of his tender years, is unable to defend against is one thing; to commission some one to go into the field of trade, selling and buying on account of the infant is another thing. Courts of equity have original jurisdiction over the estates of minors, but conceding that jurisdiction for certain equitable purposes does not concede jurisdiction to do any and everything whatsoever with the estate of a minor, quia minor. The act to be valid must be based on some equitable principle.”
Further on in the opinion it was said: “The same principles that govern courts of chancery in interfering with the proceedings and adjudications of courts of probate in the administration of estates of deceased persons should control them in interfering with the administration of the estates of minors in the hands of their guardians, because the original jurisdiction of probate courts in each case is exclusive.”
I confess my utter inability to comprehend the use of the term “private guardianship of infants” as dis tinguishing a class over which the general jurisdiction of the probate court does not extend. As I have already remarked, in the allotment of jurisdiction of the courts the framers of the Constitution vested in the probate court all of the jurisdiction over the persons and estates of minors as such. This does not take away any of the jurisdiction allotted to other courts on independent grounds, even though its exercise may relate to the interests of minors. It does not take away the criminal jurisdiction of the circuit courts or of justices of the peace, even though the exercise of that jurisdiction may be and often is exercised in the rendition of judgments against minors. It does not take away from those courts the civil jurisdiction over litigation concerning the property rights of minors. But, so far as the courts may deal with infants as such, the exclusive jurisdiction is given to the probate courts.
The control of infants and any other class of dependent or helpless persons is not a matter of “local concern,” within the meaning of that term as used in prescribing the jurisdiction of county courts. Such an application of it would convert it into a “general welfare clause,” under which authority might be conferred on the county courts in all of the varied and intricate matters affecting' society in the county — health, morals or prosperity, or anything else. Such was not, in' my judgment, the intention of the framers of the Constitution in the use of the term “local concern.” I think it related solely to the antecedent term “internal improvement.” Little Rock v. North Little Rock, 72 Ark. 195.
The construction of jails and the maintenance of prisoners incarcerated therein are matters of local concern within the exclusive jurisdiction of the county court, but the control over prisoners charged with crimes are not within such jurisdiction, for it belongs to those courts which exercise criminal jurisdiction. Counties may, as matters of local concern, be authorized to build infirmaries for the care of insane persons and jurisdiction over it would be vested in the county court; but this would not carry with it jurisdiction over insane persons, which is, by the Constitution, vested in probate courts. So the counties could, by the Legislature, be authorized to build refuges for the care of dependent or incorrigible children, and that would constitute a matter of local concern, but it would not carry with it jurisdiction to determine when a child should be consigned to that refuge, for to do so is an invasion of the jurisdiction of the probate court.
The majority rely, in support of their views, on certain decisions of this court upholding statutes giving jurisdiction to county courts in the matter of regulation of the liquor traffic. Language is quoted from the opinion in one of those cases which seems to sustain the views of the majority that all matters affecting the interests of society in a county are matters of “local concern” over which the county court has exclusive jurisdiction; but when the whole opinion in that case is examined, and the opinions of other cases of like nature, it will be seen that the real basis of the county court’s jurisdiction over the regulation of the liquor traffic is the taxation power in the granting of license and over elections held for the purpose of determining whether or not license shall be granted. The case of Freeman v. Lazarus, 61 Ark. 247, is instructive on this subject.
I dissent, therefore, from the holding that jurisdiction was properly conferred in the county court.