dissenting:
On or about the 30th day of September 1959, in the County of Missoula, State of Montana, three teenagers, Gary Skoverski, Ken Pinto and Tom Miller allegedly participated in a robbery. It is asserted that on or about September 30, 1959, these three boys, using force, took from the possession of one Mrs. Fred Erlandson approximately $39. These facts were set *375out in a complaint filed on September 30, 1959, in the Justice Court of Hellgate Township, Missoula, Montana. The three boys appeared before the justice of the peace in answer to the complaint and without counsel representing them pled “guilty” to the charge. The justice of the peace thereupon set bond and bound the defendants over to the District Court, in and for the County of Missoula, for trial.
After this action was taken it is not clear just what procedure was followed.
If the justice of the peace obeyed the mandate of section 94-6124, R.C.M. 1947, he would have returned, without delay, to the Clerk of the District Court where the defendants were required to appear, “the complaint, testimony, and warrant, if any, and all undertakings of bail, or for the appearance of witnesses, taken by him.” Then, and in that event the county attorney could have filed his information as a matter of right based upon the record made in the justice court. It is only where there has been no examination and commitment by a magistrate that the county attorney is required to obtain leave of court. R.C.M. 1947, section 94-4910.
Here the county attorney did not follow the statutory procedure but on the other hand on or about the 14th day of October he filed a paper designated an “Application for Leave to File an Information” wherein he requested the District Court to exercise its discretion and (1) grant leave to file or (2) require an examination before a magistrate, justice of the peace or district judge prior to the filing of the information. R.C.M. 1947, section 94-4911. See State ex rel. Harrison v. District Court, 135 Mont. 365, 340 Pac. (2d) 544.
At the time the application for leave to file was submitted the District Court was required to do some act. The District Court did act by granting leave to file the information. Accordingly an information charging the crime of “robbery” was filed against these three defendants.
Counsel was then appointed by the court for the defendants *376and counsel promptly filed a motion to quash, the information. This motion was argued before the District Court by the county attorney, for the State and by defendant’s attorney, Mr. Garnaas. The teenagers being under the age of 18 years, it was contended by defendants’ counsel that these defendants could not be prosecuted in the criminal District Court, because the information did not charge that the defendants had or carried a deadly weapon, as provided by sections 10-602, subd. (1) and 10-602, subd. (2) (b), R.C.M. 1947, and that therefore because of the age of these defendants, one being 17 years old, the other being 16 years of age, the defendants were children under said section and the juvenile court and only the juvenile court had jurisdiction, over these defendants. The District Court after argument and briefs granted the motion to quash the information. The county attorney then moved orally that the court grant leave to file an additional information wherein the defendants would be charged with the same crime of robbery, a felony. This charge was, for all intents and purposes, the identical charge contained in the information which the court had just quashed. There was only an oral application here made by the county attorney.
Of course this verbal request for leave to file an identical information which the court had already ruled upon did not impose a burden upon the District Court to do anything. This is a different factual situation than was presented in the case of State ex rel. Harrison v. District Court, supra. While as set out in the Harrison case, when the application for leave to file an information is presented to the court, the court must either grant or deny or require an examination, at the court’s discretion. Here the court had already acted. If subsequently, the information is dismissed because it is held legally insufficient, whether the dismissal be error or not, the court cannot be compelled to go through the entire procedure again merely by being orally requested to allow the filing of another identical information. A writ of mandate will not lie under such cir*377eumstanees. Such application for leave to file must be in writing and just as complete and formal as though the matter had never been before the court. See State ex rel. Juhl v. District Court, 107 Mont. 309, 84 Pac. (2d) 979, 120 A.L.R. 353, and cases cited therein.
The county attorney here, minutes before, had had his information dismissed and the question presented was what was he going to do about it?
In the Juhl case, supra, this court held that when the former informations had been dismissed, before the District Court would be justified in granting leave to file a new information, the application therefor by the county attorney should be just as complete and formal as though the matter had never been before the court. Since the motion to quash performs the same function as a demurrer the State could have and should have appealed. See section 94-8104.
But the county attorney did not follow the statutory procedure nor the rule laid down in the Juhl case, supra, but he came running to this court seeking, as he put it, a “writ of mandamus or other appropriate writ,” to have this court compel the District Court to strike its order quashing the information and to allow the county attorney to proceed again against these defendants upon the subsequent proposed information he had requested leave to file. "What other appropriate writ was sought we never learned, as all arguments in this matter were based upon whether or not a writ of mandate should issue. To support his contention, that the writ was proper and should issue, it was necessary that the county attorney show that the State is entitled to have this court compel the District Court to perform an act, which act the law specifically enjoins as a duty upon the District Court. In addition, if the denial of a clear legal duty is shown, then the writ may issue if there is not a plain, speedy and adequate remedy provided by law. See B..C.M. 1947, sections 93-9102 and 9103.
What was the clear legal duty imposed upon the District *378Court in this matter? What clear legal right has the District Court denied the relator? Did the District Court have jurisdiction to rule on the motion to quash? Was the District Court, under the law, required to allow the refiling of an identical information which it had already dismissed after notice and hearing? Is the District Court compelled to rule only one way on disputed legal questions? Can this court compel the District Court under such facts and law to rule a certain way upon a legal question by a writ of mandate? The District Court, by law, is given a wide range of discretion in this matter.
These are the questions raised on this disguised appeal. The relator never pointed out to this court that the District Court had denied him any clear legal duty owing him. He never could make such a showing from the facts of this case and the record. The District Court had jurisdiction and the duty to rule upon the motion to quash. Whether its ruling was right or wrong it had the power to rule. The District Court by law could not be compelled, and never should be compelled by mandamus, to allow a refiling of the same information after it has already been ruled upon and dismissed. The law as given us by the Legislature sustains the action of the District Court.
If the State felt aggrieved it had a remedy by appeal which in this criminal ease would be plain, speedy and adequate. In State ex rel. Harrison v. District Court, supra, it is plain' that the court may have to do something when application is first filed for leave to file direct, but that case clearly holds that the District Cotirt could not be compelled to allow the filing of the information.
This court cannot, under the guise of a writ of mandate, compel the District Court to refrain from exercising its discretion under the statute, K.C.M. 1947, section 94-4910, and order it to perform an act not required by law. The law says, “written motion” not an oral one.
The question was presented here as to whether or not the *379crimes enumerated in section 10-602, subd. (2), (b), R.C.M. 1947, required a charge in addition to the enumerated crime of also having in possession a deadly weapon. To answer the question presented by the motion to quash, it required that section 10-602, subd. (2) (b), be construed and interpreted. That different legal conclusions, as to what the statute means, can be drawn is obvious from the briefs presented in this matter.
What is more obvious, however, is that the statute does not set out a clear legal duty which the District Court is or should be compelled to do or perform. The District Court had the jurisdiction and discretion to construe the statute, right or wrong, and this court does not have any power given it to issue a writ of mandamus to compel the District Court to rule one way or the other — only to require the District Court to rule. This power is given the Supreme Court only on appeals. The county attorney had the right to appeal here and we would confine his rights to what the Constitution and statutes of the State of Montana give him. This court should not legislate.
We would like to point out something here which we believe should be seriously considered and that is this. This increasingly popular procedure to review cases, which properly should be brought up on appeal to this court, by means of applications for special wrrits should be eliminated. In trying to rule upon the various petitions this court has presently entered into a never-never-lnad in regard to writs. This case is illustrative of the extent to which the court has granted writs which in fact have no statutory foundation at all. We would return to our constitutional and statutory limits of power and in the future insist that the statutes concerning special writs be strictly construed and applied to the end that these matters may be heard in their proper time and in their correct perspective, as contemplated by our Constitution and statutes. We refuse to think and act with the majority of the court in usurping the prerogative and constitutional powers of the Legislature.
*380' In this connection, we would like, to point out that in this ease our feeling is that these youthful defendants were denied due process of law because of the manner in which this ease was reviewed by this court. These defendants are in a strange State and, with a court-appointed attorney, they had moved to quash the information and had been successful. If that ruling had been appealed from, they would have been given ample time in this court to prepare a brief and argue at length the legal reasons supporting their construction of the applicable statute, and the legislative intent and reason for the special wording of section 10-602, subd. (2) (b), R.C.M. 1947. Instead of an appeal, however, they were presented a writ of mandamus issued ex parte by this court in an original proceeding here commenced, wherein the District Court was to be compelled to adopt the theory of the county attorney which theory, defendants’ attorney, Mr. Garnaas, had prevailed over in the first instance when he had been able to meet the county attorney’s argument in open court and present these defendants’ side of the argument.
The writ of mandate so issued out of this court against the District Court and judge, however, presented a new and different problem to the defendants’ attorney. Reading the applicable statutes on mandamus, sections 93-9101 and 93-9104 and applying these statutes to the facts of this case, it becomes obvious that the writ would not lie. Thus the district judge is in the position, on the return, of contesting the application for the writ and we believe properly so, but the case presently is being decided upon the legal construction of the statute and not upon whether the writ lies or not. While counsel for the respondent District Court and judge was permitted to briefly argue the merits yet in our opinion the time so allotted was wholly insufficient and thus denied respondents their day in court which right would not have been denied the youthful defendants had this case been brought before this court on appeal.
*381In their decision on this ease, the majority have declared that section 10-602, snbd. (2) (b), should have a certain construction. We do not agree with their ruling nor that the issues decided were even before this court in the original proceeding here commenced. As we read the section, the clause “while having in his possession a deadly weapon” applies to and becomes a part of each and all of the crimes set out immediately before the clause, the crimes being', murder, manslaughter, assault in the first degree, robbery, and first or second degree burglary. We do not agree it applies only to first or second degree burglary and we think a mere reading of the statute will convince any lawyer or layman. Any legislator in the 1943 and 1947 sessions when these sections were discussed and enacted well knows that the foregoing is the intent with which the Legislature enacted the same.
The purpose of the juvenile act as set out in section 10-601, R.C.M. 1947, supports this construction. Juveniles were to be prosecuted in the criminal court only in certain instances for committing certain crimes but only if, as the clause sets out, the juvenile had in his possession at the time of committing the enumerated crime a deadly weapon. Such possession would have to be charged and proven as a material element under this statute before conviction could be had in the criminal District Court. As we read the section, the legislative intent is clear and unequivocal, that a juvenile of the ages of these defendants, could not be prosecuted in the criminal court for any of the enumerated crimes unless it was alleged and proven that in addition to the committing of any of these enumerated crimes he was, at the time of the act, also armed with a deadly weapon; this was not alleged in the proposed information. An intent to use a deadly weapon in the commission of any of the statutory crimes must be shown. It should be remembered that chapter 6, R.C.M. 1947, Vol. 1, Part 2, is a special act, and must be so construed.
Any other construction defeats the purpose of the juvenile *382act. The construction of the statutes in this instance, by the judge of the District Court was correct. If the statute needs to be changed, it is for the Legislature, not for the courts to so legislate.
We would order the alternative writ of mandate dismissed, dismiss this cause with prejudice and direct the District Court to transfer all files in this action to the juvenile court and proceed therein as provided by R.C.M. 1947, section 10-610.