(dissenting). I think it sufficiently appears from the analysis of the act under review contained in the majority opinion that a court, and not a more administrative agency, has been created. It is so expressly stated in the act, and the jurisdiction of this court is defined and the practice and procedure therein are prescribed. It is true that certain functions of an administrative character are imposed on this court, but it remains a court notwithstanding that fact.
In my opinion, the difficult question in the case is, has the jurisdiction here defined been conferred upon the proper court ? And the very difficulty we have experienced, in arriving at a correct answer to that question confirms me in my view that the jurisdiction here conferred upon the county court properly belongs to the circuit court, and that the act is void because it was not lodged there.
The majority opinion reflects the fact that it has been seriously considered whether or not, under the authority of the cases there cited, the jurisdiction defined in the act under review did not inhere in the chancery court. But, after a careful consideration of all our cases throwing light upon the subject, we have all concluded that the chancery court does not have the jurisdiction here conferred upon the county court.
I agree fully with the majority that this jurisdiction does not belong to the probate court. There is nothing in the act which would interfere with any guardian in the discharge of his duties as such. Children with guardians who are dependent, neglected or delinquent are made subject to the act just as are dependent, neglected or delinquent children having parents.
A minor with a guardian might be convicted of some misdemeanor, under the judgment of a justice of the peace, or of some felony in the circuit court without infringing upon the jurisdiction of the probate court. So, here, the necessity for the restraining and corrective influence of the industrial school might be as great in the case of a minor having a guardian as in that of a minor who did not have one. So I fully concur with the majority that the constitutional provision vesting in probate courts jurisdiction in matters relative to guardianship refers solely to the private guardianship of the person and estates of minors, that is, to the guardianship as it affects the person and the estate of the individual minor, but not the interests of the' public, and that the jurisdiction over infants so far as their conduct and condition might affect, not only themselves, but also the welfare of the communities in which they reside, was vested in some tribunal other than the probate court.
If it were conceded that the custody and control of delinquent, dependent or neglected children was a matter of local concern, as that term is used in the Constitution, then the majority have reached the correct conclusion; but I submit that the framers of the Constitution had no such definition in mind when they employed that term in defining the jurisdiction of county courts.
The “local concern” must not be interpreted as meaning those things which the people of a particular community are locally concerned, for such a definition would include the suppression of crimes generally and many other matters over which no one would contend the county court had jurisdiction.
In the case of Little Rock v. North Little Rock, 72 Ark. 195, it was insisted that the attempt of the Legislature to confer authority upon the town council to order an election upon the question of a change of municipal boundaries was a violation of the provision of the Constitution giving the county courts “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that they may be necessary to the internal improvment and local concerns of the respective counties.” Article 7, section 28, Constitution 1874. Answering that insistence, the court there defined “local concern” in the following language, which is appropriate here:
“'But the argument that the change of boundaries between two incorporated towns is a ‘local concern,’ within the meaning of this' provision of the Constitution, seems to prove too much; for, if that be true, why are not the improvements of city streets and the other local improvements of the city local concerns, within the meaning of the Constitution, and why does not the county court have exclusive jurisdiction in such matters also? * * * It thus appears that the local concerns over which the county court, is given exclusive jurisdiction are those-which relate specially to county affairs, such as public, roads, bridges, ferries, and other matters of the kind mentioned in the section referred to, and we do not. think that the formation of towns and cities, or the change-of their boundaries, is a local concern, of which the county court has exclusive jurisdiction. This conclusion is, we. think, sustained by the former decisions of this court.”'
The majority say that, if this jurisdiction is not. vested in the county courts, it must be vested in the circuit courts; and that, in my opinion, is where it is vested. The jurisdiction of the circuit courts is not of a “lest-we forget” character. These courts have the great residixum of jurisdiction over all matters -which, have not been confided by the Constitution to the jurisdiction of other tribunals. The jurisdiction of these other tribunals is defined, and the jurisdiction not assigned to some other tribunal is vested in the circuit courts. It must be true, therefore, that if the chancery courts, the county courts or the probate courts do not possess this jurisdiction, the circuit courts must do so.
The desire to uphold this legislation is common to us all, and is fully shared by me, but, as the jurisdiction was taken from the only court which, in my opinion, could properly exercise it, and was conferred upon a court which, under the Constitution, could not exercise it, I must express my view that the legislation is unconstitutional, and I, therefore, dissent from the order and judgment of the majority.