I dissent on the ground that failure to comply with the requirements of Section 39-21-48, Subsection 1, N.D.C.C., is not a crime and therefore the trial court and this Court on appeal do not have jurisdiction of the subject matter. Therefore we cannot reach the constitutional question.
Criminal jurisdiction is that which exists for the punishment of crimes. The court derives its jurisdiction in criminal cases from the law and its jurisdiction extends only to such matters as the law declares criminal, and when a court undertakes to punish for an offense to which no criminality is attached, it acts beyond its jurisdiction. In re Corryell, 22 Cal. 179, 7 P. 178; Ex parte Rickey, 31 Nev. 82, 100 P. 134; 21 Am.Jur.2d, Criminal Law, Secs. 376 and 379; 22 C.J.S. Criminal Law §§ 107 and 108.
A crime in this State is defined by statute as follows:
“A crime or public offense is an act committed or omitted in violation of a *684statute forbidding or commanding it, and to which is annexed, upon conviction, one of the following punishments:
“1. Death;
“2. Imprisonment;
“3. Fine;
“4. Removal from office;
“5. Disqualification to hold or enjoy any office of honor, trust, or profit under this state; or
“6. Other penal discipline.”
Section 12-01-06, N.D.C.C.
Section 39-21-48, N.D.C.C., was enacted as Subsection 1 of Chapter 322 of the Session Laws of 1967. It is as follows:
“AN ACT
“To require motorcycle operators and passengers to wear protective helmets and to preclude the carrying of passengers on certain two-wheel motorcycles.
“Be It Enacted by the Legislative Assembly of the State of North Dakota:
“Section 1. CRASH HELMETS REQUIRED FOR OPERATORS OF AND PASSENGERS ON MOTORCYCLES.) Every operator of and passenger on a motorcycle, as defined by subsection 32a of section 39-01-01 of the North Dakota Century Code, shall at all times when such motorcycle is in motion be required to wear a crash helmet of a type and meeting the standards approved and established by the motor vehicle registrar, provided, however, such helmets shall not be required to be worn when such motorcycle is driven in a parade or ceremonial conducted or permitted under local ordinances.”
The above statute does not purport to create a crime or to impose any penalty or punishment whatsoever upon one who operates a motorcycle or rides as a passenger thereon while not wearing a crash helmet. The statute requiring every operator of and passenger on a motorcycle to wear a crash helmet when such motorcycle is in motion does not provide that failure to comply with the statutory provision constitutes a crime, a misdemeanor, an offense, or any other term used to define a crime, nor does it directly or by reference impose a penalty.
The statute legislates upon a subject not heretofore governed. It is a new statute. Standing alone, the statute is not penal and it does not incorporate by reference any other statute that would make it penal.
We have said that penal statutes are to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing, on the one hand, to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing, by any mere verbal nicety or forced consideration or equitable interpretation, to exonerate parties plainly within their scope. State v. Fargo Bottling Works Co., 19 N.D. 396, 124 N.W. 387, 26 L.R.A.,N.S., 872.
A criminal statute must be definite and certain in respect to the punishment it is intended to impose. Smith v. United States, 10 Cir., 145 F.2d 643, cert. denied, 323 U.S. 803, 65 S.Ct. 563, 89 L.Ed. 641. Statutes are not to be enlarged by construction or extended by inference to include acts not within the terms of the language defining crimes. State v. Clark, 67 S.D. 133, 290 N.W. 237; Nelson v. United States, 109 U.S.App.D.C. 392, 288 F.2d 376; United States v. Resnick, 299 U.S. 207, 57 S.Ct. 126, 81 L.Ed. 127; Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443. Where a crime is charged it must have a clear legislative basis. Nelson v. United States, supra; United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712.
The question then arises: Does the alleged criminal information charge a crime at all? Chapter 322 of the Session Laws of 1967 was designated as Section 39-21^18 *685in the 1967 pocket supplement to Volume 7 of the North Dakota Century Code by authority of the legislative assembly under the supervision and with the assistance of the legislative research committee and the secretary of state. The section number, 39-21-48, was not designated by the legislature in the enactment of the statute. The designation was an administrative decision by the legislative research committee and the secretary of state. Title 39 of the North Dakota Century is entitled “Motor Vehicles” and I assume the statute was given title number 39 because that is the title referred in the statute which defines a motorcycle. However, it is not the motorcycle or its operation that is governed by the statute in question. The statute governs the ■ “operator of and the passenger on” a motorcycle. Subsection 32a of Section 39-01-01 defines a motorcycle and the section number was inserted in the statute for that purpose only. Thus the statute is not directed to the motorcycle nor the operation thereof, but creates a duty imposed upon a person to wear a crash helmet under the conditions described in the statute. Title 39 governs motor vehicles and provides rules and regulations pertaining to the operation of motor vehicles, equipment, size, width, height, etc. Although a motorcycle is a motor vehicle [Section 39-01-01, Subsection 32a] it is not the motorcycle, its operation or equipment, that is governed by the statute here under consideration.
Section 39-07-06, N.D.C.C., is a general penalty provision contained in Title 39. It provides that any person violating any of the provisions of Title 39 for which another penalty is not provided specifically shall be subject to punishment as provided in that section. However, this section is not applicable to Chapter 322 of the Session Laws of 1967 for the reasons given above and for the further reason that this chapter was not classified by the legislature in its enactment of Chapter 322 of the Session Laws of 1967 as coming within Title 39. Furthermore, Chapter 322 of the Session Laws of 1967 is not specially designed to affect the operator of or passenger on a motorcycle in motion upon a highway or street. It is all-encompassing as to place. The motor vehicle laws deal with motor vehicles in relation to their use on the highways and streets. The only requirement to make Chapter 322 of the Session Laws of 1967 operative is that the motorcycle be in motion, wherever that may be. I believe the statute was classified under Title 39 for convenience and indexing purposes only.
“The juxtaposition of statutory provisions as a result of rearrangements in codes, revisions, or compilations is not decisive of the effect or application of such provisions. Such rearrangements are ordinarily not regarded as altering the construction of the statutes included in the compilation. The classification and arrangement should not obstruct or obscure the interpretation of the law as a whole, or the meaning derived from the history and express provisions of the law. It is clear that the place assigned to a statute in a compilation cannot control the plain meaning expressed in the statute itself. Sometimes, it is expressly provided in codes that the distribution and classification of the several parts thereof are made for the purpose of convenience and orderly arrangement, and therefore no implication or presumption of a legislative intention is to be drawn therefrom.”
50 Am.Jur., Statutes, Sec. 448.
For the reasons aforesaid it is my opinion that Section 39-07-06, N.D.C.C., providing for a general penalty for violations of Title 39, is not applicable to Chapter 322 of the Session Laws of 1967 and does not make its violation a crime.
The next question is: Does Section 12-17-27, N.D.C.C., apply ? It provides:
“When the performance of an act is prohibited by any statute and no penalty for the violation of such statute is imposed in any statute, the doing of such act is a misdemeanor.”
*686This is a general provision intended to apply in those cases where the legislature has enacted a law declaring certain acts to be prohibited or unlawful but prescribes no punishment for the violation thereof.
A crime or public offense is defined by statute in North Dakota. Section 12 — 01— 06, N.D.C.C. In North Dakota all crimes are statutory and no act is criminal unless the legislature has in express terms declared it to be so. In this state there is no common law in any case where the law is declared by the code. Section 1-01-06, N. D.C.C. The will of the State as a sovereign is expressed by its constitution, its statutes, and the decisions of its tribunals enforcing those rules. Section 1-01-03, N.D.C.C.
A crime is defined by our statute as “an act committed or omitted in violation of a statute forbidding or commanding it * * ” Section 12-01-06, N.D.C.C.
Section 12-17-27, N.D.C.C., purports to prescribe an act as a misdemeanor where the performance of the act is prohibited. It does not embrace within its definition the omission of the performance of an act commanded by a statue.
In Langer v. Goode, 21 N.D. 462, 131 N.W. 258, this Court in a civil action for the recovery of damages against a neighbor, on the theory that the defendant’s neighbor, contrary to law, permitted noxious weeds to grow and bear seed, injuring the plaintiff, held in construing the statute requiring that noxious weeds should be destroyed, that “there is a difference between omitting to do something which is required to be done by the statute, and the doing of something which is prohibited by the statute.” The Court, in that case, concluded that “Section 8760 of the Revised Code [this is now Section 12-17-27, N.D.C.C.] makes it a crime to do any act the performance of which is prohibited by statute in cases where no penalty for the violation of the statute is imposed under any statute, but this section cannot be construed so as to make it a criminal offense to fail to do an act which may be required by statute.”
Chapter 322 of the Session Laws of 1967 (Section 39-21-48, N.D.C.C.) does not prohibit or forbid an act; it requires one. For these reasons it is my opinion that Section 12-17-27, N.D.C.C., does not make a failure to wear a crash helmet, under the circumstances described in the statute, a criminal offense or a crime.
A similar result is obtained by this Court in Brissman v. Thistlethwaite, 49 N.D. 417, 192 N.W. 85. In that case an alleged criminal complaint charged that the defendant practiced as an accountant and assumed the title of certified public accountant without having received his certificate as a certified public accountant from the board of accountancy. The statute in question, under which the defendant was charged, provided:
“Any person in order to assume the title of certified public accountant or 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. * * * ”
Section 551 of the Compiled Laws of 1913.
The Act containing that part of the statute quoted above contained a penalty clause but the penalty clause did not embrace or define as a crime one assuming the title of a certified public accountant of this state by misrepresenting himself as such because he had not received a certificate as a public accountant. This Court, in disposing of the action by dismissal, stated:
“The complaint is drafted under that statute, but the statute does not create a crime because a violation of the command is not made penal or in any way punishable.
“Obviously there is no penalty or punishment annexed to the violation of section 3, and hence the section does not create a crime.”
*687On a petition for rehearing, the Court considered whether Section 9433, Compiled Laws of 1913, which is now Section 12-17-27, N.D.C.C., applied. The Court, in refusing to apply that section to create a crime for the violation of Section 551 of the Compiled Laws of 1913, quoted above, stated: “Section 9433, [Compiled Laws of 1913], is a general provision intended to apply in those cases where the legislature has enacted a law declaring certain acts to be prohibited or unlawful, but prescribed no punishment for a violation thereof” and concluded that the contention of the State that this section should apply is not well founded.
In the instant case the statute under the circumstances described therein requires that a crash helmet be worn. The statute does not declare that failure to wear a crash helmet is a crime or an offense, nor does it prescribe a penalty. The general penalty statutes are not applicable for the reasons heretofore stated. Thus the violation of the requirement of the statute that a crash helmet be worn does not constitute a crime. The violation of the statute in question is not made a crime and therefore a criminal prosecution is barred. Proceedings to enforce it must therefore be civil in nature. The court has no jurisdiction of the subject matter where the information charges as a crime the omission of an act which is not made a crime by statute. Jurisdiction of the subject matter cannot be conferred by consent or waiver of the parties. It is derived solely from the law. When it is ascertained that no jurisdiction exists, the court can go no further and no consideration of policy or convenience should induce the court to render a decision that would be merely advisory. Danforth v. City of Yankton, 71 S.D. 406, 25 N.W.2d 50.
I conclude the appeal should be dismissed with direction to the lower court to set aside its judgment of conviction and. sentence, and to dismiss the action.
As an addendum to my dissent I must make the observation that Section 39 — 21— 46, N.D.C.C., cited by the majority in answer to my dissent, was enacted by the 1963 session of the Legislature as Chapter 283, whereas Chapter 322 (the crash helmet statute) was enacted in 1967, four years later. No reference is made in Chapter 322 of the Session Laws of 1967 to Section 39-21-46 or Chapter 283 of the Session Laws of 1963, nor to any of the subject matters of that chapter. Certainly it was not the intent of the Legislature that Section 39-21-46 apply.
It is obvious the majority are confused, and rightly so, because the Legislature provided no penalty for a violation of the crash helmet statute. In the majority’s opinion, in answer to my dissent, they say:
“Accordingly, we believe the legislature may well have intended that the penalty provisions of § 39-21-46 should apply. As it failed to specifically so provide, however, we must search elsewhere for the applicable penalty. In that respect § 39-07-06 might reasonably apply. It provides a general penalty for the violation of any of the provisions of the title on motor vehicles not otherwise covered.
“We do not rely on that section, however, as the legislature did not specifically place the crash helmet statute under the motor vehicle title. It is our view that under these circumstances N.D.C.C., §§ 12-17-27 and 12-06-14 apply: * * * [Emphasis added.]
Thus the majority have pointed out three penalty provisions in our code but are unable to say specifically that any one of them applies to the crash helmet statute. They conclude, however, that in view of this conundrum Sections 12-17-27 and 12-06-14 apply. It is a strained construction.
“According to some authority, it is the punishment prescribed which makes an act a crime, not a mere interdiction of conduct without punishment, and a criminal statute without a penalty clause is of no force and effect, so that no conviction may be had thereunder. Moreover, the statute must be definite and certain *688with respect to the punishment it is intended to impose. So it has been held in some of the cases that where an act is a crime solely by statute, and no penalty is prescribed in the statute, an indictment will be quashed, or a judgment arrested; or in other words, that a description, definition, and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime unless a punishment is annexed, for punishment is as necessary to constitute a crime as its exact definition.
“However, a statute which, by reference to another, leaves the sentencing court in doubt as to the punishment it may impose for a described offense is void.”
22 C.J.S. Criminal Law § 25.KNUDSON, J., concurs in the dissent of TEIGEN, C. J.