dissenting. I would probably join in the majority opinion if it were within the province of this court to make a policy decision. I certainly would, if I could find it possible to read the English language as the majority reads it in applying Ark. Stat. Ann. § 45-240 (Repl. 1964). But I find neither of these alternatives possible. The General Assembly has eliminated the possibility of a policy decision, even if it were otherwise in the jurisdiction of the judicial department. I am simply unable to understand how § 45-240 can be read to have the effect given it by the majority without emasculating it. In order to do so, this particular section must be read with a vision so peculiarly astigmatic that a whole limiting and qualifying clause printed in virtually two full lines in the official 1911 Acts of Arkansas, more than a full line in Ark. Stat. Ann. and nearly two lines in the majority opinion is totally obscured. In order to apply the section as the majority has, it must be read:
Nothing in this act shall be construed to be in conflict (with) or to repeal or to prevent proceedings under any act or statute of this State which may have otherwise defined any specific act of any person as a crime or misdemeanor of any character, **** or to prevent or to interfere with proceedings under any such acts, ****
The omission is that which clearly makes the section inapplicable here. The clause omitted is “. . . which act might also constitute contributory delinquency or contributory dependency ...”
If there could be any lingering doubt about the effect to be given these limiting and qualifying words and their inconsistency with the application of the statute made by the majority it should be totally dispelled by a reading of the remainder of the section. Those words clearly indicate that the type of offenses which might be described as contributory delinquency or contributory dependency were the only ones intended to be treated by that section of the act. The remainder of the section not quoted in the majority opinion follows:
**** nor shall it be construed to be inconsistent with or to repeal any act providing for the support of the parent, or parents of their minor children, or any act providing for the punishment or cruelty to children or the taking of indecent liberties with, or selling whiskey, tobacco or firearms to children, or permitting them in evil or disreputable places, and nothing in any such act or similar acts shall be construed to be inconsistent with or repeal this act or prevent proceeding hereunder, but in all cases where there shall be more than one prosecution for the same offense under whatever acts of the character herein described, the fact may be given in evidence to the judge of the court and may be in the discretion of the court considered in mitigation of any sentence in any such cases.
In order to properly view the matter, the provisions of Act 215 of 1911, now appearing as Ark. Stat. Ann. §§ 45-201 — 206, 45-209 — 216, 45-218, 45-220 — 225, 45-227 — 240 (Repl. 1964 and Supp. 1973) must be looked to. There the General Assembly was attempting to deal effectively with what was then, and is now, a difficult and perplexing social problem — the proper handling of minors who are either actual or potential offenders against the law and society. It was the first effort made in this state to treat the problem comprehensively. The plan adopted was in accord with a prevailing national trend. See Maxted, Some Problems of Courts for Arkansas, 9 Ark. L. Rev. 23. See also, McDonough, The Juvenile Court and Judicial Reform in Arkansas, 22 Ark. L. Rev. 17. It then was widely accepted and approved as a progressive move. It was first tested in Ex parte King, 141 Ark. 213, 217 S.W. 465. In that opinion this court mirrored the prevailing mood of the day, saying:
The progressive and enlightened policy of such legislation is everywhere recognized and commended. Happily for the unfortunate class benefited and for the public weal we find no barrier in our organic law to the act in its present form.
It then behooves us to ascertain the “unfortunate class benefited.” The very first section of the act makes all under the age of 18 years, for the purposes of the act, wards of the state, whose persons were made subject to the guardianship and control of the county court, sitting under the pseudonym, juvenile court. Ark. Stat. Ann. §§ 45-201 (Supp. 1973), 45-206, 45-202 (Repl. 1964). Ex parte King, supra. The act then undertakes to define the particular class benefited. It consists of dependent children, neglected children and delinquent children. Insofar as this case is concerned, we need only to look to the definition of the words “delinquent child” to determine whether appellant might be in that category. The definition includes any child under the age of 18 years who commits any act for which he might be prosecuted for a felony or misdemeanor if he were over 18. Appellant is in that class, if guilty. Ark. Stat. Ann. § 45-204 (Supp. 1973).
It was clearly the intention of the legislature to place within the jurisdiction and power of the county court (for convenience called the juvenile court), in the manner provided in the act, the disposition of minors, who are considered as wards of the state, i.e., under the age of 18 years. Ark. Stat. Ann. § 45-201, 45-209 (Repl. 1964). Ex parte King, supra. That jurisdiction extends to “all cases coming within the terms of the act.” Ark. Stat. Ann. § 45-206. The act explicitly requires a liberal construction, to the end that, in case of delinquency, as far as practicable any delinquent child shall be treated, not as a criminal, but as misdirected and misguided and needing aid, encouragement and assistance, and if such child cannot be properly cared for and corrected in his own home or with the help and assistance of probation officers, then he may be placed in a suitable institution where he may be helped and educated and equipped for industrial efficiency and useful citizenship. Ark. Stat. Ann. § 45-233 (Repl. 1964). Ex parte King, supra. It was not the intention of the act to confer upon the county court the power to institute criminal prosecutions against minors or to punish for alleged violations of law. It did undertake reclamation and reformation, rather than condemnation and punishment and to open the doors of an asylum rather than a jail. Through it, the state, as parens patriae, assumes the guardianship of her minors who are under the age of 18 because they come within the terms of the act and need her protection. Ex parte King, supra. The jurisdiction over infants under 18 and their guardianship, so far as their conduct might affect the welfare of the community in which they reside, or are found, is vested in the county court, as a local concern of the county. Ex parte King, supra.
The act, however, did not automatically vest that court with exclusive jurisdiction in every case in which a violation of a state law is involved or alleged. It did not give jurisdiction to the county court over a minor under 18 against whom prosecution has been commenced in a manner which requires his arrest upon a warrant issued out of any court in this state. Ark. Stat. Ann. § 45-224 (Repl. 1964). When, however, a child under the age of 18 years is arrested without a warrant, it shall be the duty of the arresting officer to take him directly before the juvenile court. That court then may either exercise its discretion to transfer the child to any of the courts of this state having jurisdiction of the offense of which he may be found guilty, or proceed under the provisions of the act for reclamation and reformation of wayward youth. Ark. Stat. Ann. § 45-224. The language of the act as to the minor who may be arrested without a warrant is clearly mandatory.1 If it had not been so intended, the word “may” rather than “shall” would have been used. A reading of this section (and other statutes) evinces a clear legislative intention that a court acting through a judicial officer, not an arresting officer, make the determination, in the exercise of judicial discretion, whether a youthful law violator should be prosecuted in the criminal courts as an adult would be, with the attendant publicity, the risk that he be imprisoned as an adult with adult offenders, the possibility of evidence in the proceeding being used against him in other proceedings and the resulting criminal record. If the minor is arrested without a warrant, that discretion is to be exercised by the juvenile court, but when arrested on a warrant, by the court from which the warrant issued, or which has jurisdiction by virtue of a charge filed therein.2 Ark. Stat. Ann. §§ 45-224, 241 (Repl. 1964).
The argument, that Ark. Stat. Ann. § 45-240 (Repl. 1964) makes proceedings against appellant in the municipal court permissible in spite of the fact that he was arrested without a warrant and never taken before the juvenile court, is based upon a misreading of the section. Whatever its effect may be, insofar as this argument is concerned, it is simply a disclaimer of any intention to repeal any act or prevent any proceedings defining as a crime or misdemeanor an act which might also constitute contributory delinquency or contributory dependency.
I have desperately but unsuccessfully tried to fathom the reasoning by which the majority is persuaded that Ark. Stat. Ann. 45-202.1, 202.2 (Supp. 1973) adopted 58 years later than the basic act, has any bearing whatever on the question before the court. Assuming that the latter sections are constitutional, the referee is at best an arm of the county court in the exercise of that court’s jurisdiction. Clearly, there was no legislative intent to create a new court. If so, the act is palpably unconstitutional. Furthermore, I cannot read these sections as the majority does. I do not see why the referee is not authorized to act in these cases as fully as he could in any other, if indeed the General Assembly can vest a referee with such broad powers as it has attempted by these sections. Ark. Stat. Ann. § 45-202.1 clearly states that the referee “. . . shall have power to hear and pass on all Juvenile cases ...”
The courts have no power to inquire into the wisdom, advisability, expediency or propriety of this legislative determination of this matter which was solely for consideration of the legislative department. Ward v. Bailey, 198 Ark. 27, 127 S.W. 2d 272; Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421; Reed v. Hundley, 208 Ark. 924, 188 S.W. 2d 117; Fugett v. State, 208 Ark. 979, 188 S.W. 2d 641; Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210; Longstreth v. Cook, 215 Ark. 72, 220 S.W. 2d 443; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478.
I would reverse the judgment denying the writ of prohibition and direct the Circuit Court of Jefferson County to issue the writ.
I am authorized to state that Mr. Justice Brown joins in this dissent.
I am not unaware of contrary dictum in Pritchard v. Downie, 216 F. Supp. 621 (D.C. 1963). I simply do not agree with the conclusion stated by the late distinguished trial judge who wrote that opinion.
Arkansas Statutes Annotated § 45-241 (Repl. 1964) was the only statute invoked in the motion to transfer in Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. The motion did not mention Ark. Stat. Ann. § 45-224, nor was there any allegation or evidence in support of the motion to indicate that Stanley was arrested without a warrant or prior to the filing of the information against him. No jurisdictional question was asserted in the motion in any manner. The motion simply asked the circuit court to transfer the case to the juvenile court in the minor’s best interest.