(dissenting).
I respectfully dissent from the conclusion reached by the majority in this cause.
In the first place article 6, section 6 of the Arizona Constitution insofar as the same is here material, provides that:
“The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting dependent, neglected, incorrigible, or delinquent children, or children accused of crime, under the age of eighteen years. The judges of said courts must hold examinations in chambers of all such children concerning whom proceedings are brought, in advance of any criminal prosecution of such children, and shall have the power, in their discretion, to suspend criminal prosecution for any offenses that may have been committed by such children. The powers of said judges to control such children shall be as prescribed by law.”
It will be observed that the exclusive jurisdiction granted to the superior court embraces “all proceedings and matters affecting * * * delinquent children * * *.” (Emphasis supplied.) The framers of the constitution in using the language above quoted, ‘in all proceedings and matters affecting * * * delinquent children” intended not only to vest the superior court with authority to conduct hearings and pronounce judgments of commitments in juvenile cases but it granted to the court jurisdiction in all matters affecting delinquent children which is broad enough in its terms to embrace every matter affecting the life of such juvenile during its minority. This court has no authority to ignore the words “and matters affecting * * * delinquent children”. It was intended to have *127a meaning different from court proceedings, otherwise it would not have been used.
It will be further observed that the constitution in the succeeding sentence provides that the judges of said courts (not the courts) must hold examinations in chambers of all such children concerning whom proceedings are brought in advance of any criminal prosecution and that the judges are given the power and discretion to suspend criminal prosecution. It then proceeds to provide that “The powers of said judges (not the courts) to control such children shall be as prescribed by law.” This latter provision constitutes in my opinion an implied mandate to the legislature to pass legislation giving to the judges of the juvenile courts the power to control such children during the period of their minority or until such time as their conduct may be restored to a normal pattern consistent with moral rectitude and right living.
When considering this section of the constitution relating to the jurisdiction of the superior court affecting dependent, neglected, incorrigible or delinquent children, it is my view that the legislature does not have the power to divest the superior court handling juvenile delinquents of its jurisdiction over all matters affecting such children, any more than it has the power to divest it of its jurisdiction over all proceedings affecting such children. Article 6, section 9 of the constitution providing for courts of justices of the peace, provides that said justices shall have such powers, duties and jurisdictions as shall be provided by law. The mandate to provide that jurisdiction and those powers is no more explicit than it is in article 6, section 6, providing that the powers of the judge (not the court) to control children shall be prescribed by law. It certainly cannot be argued that article 6, section 9, did not constitute a mandate to the legislature to prescribe the powers, duties and jurisdictions of justices of the peace. In any event it is clearly manifest from the language used in article 6, section 6 of the constitution, supra, that the framers intended that the legislature should provide for the judges of the superior courts exercising juvenile jurisdiction to have control over dependent, neglected, incorrigible and delinquent children, etc., during their minority. This is further evidenced from the fact that the framers of the constitution, in the same section thereof, recognized a distinction between the court and the judge, wherein it provided that:
“Superior courts and their judges shall have the power to issue writs of mandamus, quo warranto, (etc.) * * *»
In other words a judge wherever he may be found within the jurisdiction of the court may, under the above authority, issue a writ of this character which under the terms of the constitution has the same force and effect as if issued by the court. This *128court has, in at least two cases, discussed the difference between the court and a judge of the court and their respective powers. Andrade v. Andrade, 14 Ariz. 379 at page 384, 128 P. 813; and in Deatsch v. Fairfield, 27 Ariz. 387 at page 394, 233 P. 887, 890, 38 A.L.R. 651. The court there said:
“ * * * There is a difference between the court and the judge of the court. It takes more than the presiding officer to constitute the court. As is said in Chow Loy v. U. S., 112 F. 354, 50 C.C.A. 279: A court is not a judge, nor a judge a court.’ When we speak of a court we think of the presiding judge, a clerk, parties, and attorneys, and while all of these are not necessary to constitute the court neither is the judge alone the court. (Citing cases.) % Hí H« ff
Therefore when the framers of the constitution impliedly directed the legislature to give to the judge the control over juvenile delinquents necessary to carry out the purposes of the constitution they were intending that he should exercise that control rather than the court.
By directing the judges to hold examinations in chambers of children concerning whom proceedings are brought, in advance ■of any criminal prosecution, the framers .again indicated that such proceedings -should be by the judge and not by the court.
The legislature failed to enact legislation in accordance with the provisions of article 6, section 6, but it did enact laws providing that where proceedings were instituted concerning a delinquent pending final disposition the child should be subject to the order of the court and that it may be permitted to remain in the home of its parents, guardian or person having its custody or of the probation officers or it may be detained in a place provided by state or county authorities or by any association or agency, public or private, for the care of delinquent, neglected or dependent children. This gives to the court the authority to exercise control over the juvenile. Section 46-125, A.C.A.1939, provides for hearings, disposition, and continued control over all such delinquents not committed to the industrial school.
Section 46-132, A.C.A.1939, provides that:
“(a) When jurisdiction has been obtained by the juvenile court in the case of any child, the child shall continue under the jurisdiction of the court until he becomes twenty-one (21) years of age, unless sooner discharged. No commitment shall divest the court of' jurisdiction for the purpose of enforcing its judgments and orders. No commitment of any child shall extend beyond the minority of the child, ánd' commitments .to the state industrial school or a school or institution for girl juveline offenders shall be for the term *129of the child’s minority, unless sooner discharged.
“(b) The court, in making orders for the commitment or adoption of a child, shall place it, as far as possible, in the custody of persons having the same religious belief; and shall provide, as far as possible, that the care and discipline of the child shall be as nearly as possible that which should be given by its parents. Whenever possible the child shall be placed in an appropriate family home and become a member of the family by adoption or otherwise.”
Section 46-133 thereof provides that no delinquent child under the age of twelve years shall be committed to the state industrial school, nor to any school or institution for girl juvenile offenders unless after the care given it by probation, the court finds that the interests of the child and the welfare of the community demand its commitment, nor shall any neglected or dependent child be committed to any such school
Under section 46-132, supra, the legislature expressly provided that the court should not be divested of its jurisdiction over the juvenile by reason of its commitment to the industrial school so as to deprive it of its power to enforce its judgments and orders relating to such delinquent juvenile.
It is stated in substance in the majority opinion that the judgment of commitment means nothing whatever except that the child shall be committed to the institution. The inference is that the court should have incorporated in the judgment all those provisions necessary to its protection and safekeeping. Not having done so there is nothing upon which the court can justify its action in this case.
According to the provisions of section 47-410, A.C.A.1939, the very purpose of maintaining this institution for juvenile offenders is for the detention, education, employment, and reformation of male juvenile offenders committed in accordance with the provisions of article 1, chapter 40, Revised Code of 1928; and subsection (g) of section 47-407, A.C.A.1939, provides:
“The superintendent of each institution shall:
“(g) Provide for the care of residents of the institution, protection of their health, their instruction in academic subjects and useful trades and occupations, development of their characters, and inculcation of principles of morality, sobriety, and industry.”
These provisions become as much a part of the judgment of commitment as if written into the judgment itself. It is therefore the duty of the superintendent to see that the health of the residents of the institution is protected, that they receive instructions in academic subjects and useful trades, that their character shall be 'developed and that he shall inculcate into their minds and hearts principles of moral*130ity, sobriety and industry; reformation being the primary objective.
There is no authority granted under the provisions of this act for any of the treatment alleged to have been administered to the boys involved in this matter. Certainly there is no authority either express or implied for assault of any kind or character upon such boys and I am satisfied that no reputable child psychologist would recommend such treatment as being conducive to the rehabilitation or reformation of the type of boy committed to that institution.
The majority opinion states that under the provisions of section 47-402, supra, the government for state institutions of juvenile offenders is vested in the Board, and that this divests the court or the judge of any further authority over boys committed therein. Let us see what the statute says with respect to the powers of the board. Section 47-404, A.C.A.1939, states that the board shall:
“(a) Prescribe systems of records and accounts, subject to the approval of the state auditor.
“(b) Make frequent inspections of the institutions.
“(c) Supervise the instruction given in schools connected with the institutions, and order any changes in method which will improve the instruction given.
“(d) Appoint a superintendent for each of the institutions.
“(e) Cause its annual report to be printed for the information of the public, and a copy thereof to be mailed to each member or member-elect of the legislature.
“(f) Prescribe rules and regulations for the government of institutions.
All of these provisions except subsections (c) and (f) and perhaps (b) relate to the financial and business aspects of the institution. The duties of the superintendent as prescribed by section 47-407, supra, are that he shall:
“(a) Reside at the institution.
“(b) Have charge of the institution and its management, subject to the direction of the board.
“(c) Purchase supplies for the institution, under orders of the board.
“(d) File with the board not later than the fifth day of each month a detailed report of expenditures, with an account of the condition and activities of the institution during the preceding month, and such other reports as the board may require.
“(e) Make a report to the board at the end of each fiscal year, which shall include a comprehensive statement of the condition of the institution; a detailed financial statement including each individual transaction, total cost of maintenance, per capita cost per year and per month, per capita cost per month of the keep of residents, and *131such other items as will clearly reflect the financial status of the institution; and an account of rehabilitation work done, methods employed, and results obtained; recommendations for improvement of the institution; and such other information as the board may require.
“(f) Direct subordinate officers and employees in their duties and supervise their work.”
(g) As above quoted alone relates to the duties toward the inmates.
The board and the superintendent have only such powers as are expressly or by necessary implication granted to them by the legislature. The position of the majority opinion with respect to the government of the institution being vested in the executive branch of the state government would be sound except for the fact that the constitution vested power and jurisdiction in the juvenile court over juvenile delinquents in all matters affecting them and may I here pose the question, what could more vitally affect a child who for some cause happens to be a social misfit, than proper environment and proper treatment? The constitution further impliedly directed the legislature to enact laws giving to the judge power to control said juveniles during their minority and it did not limit that control to delinquents who were not committed to the industrial school.
The statute gives to the juvenile court the authority to supervise delinquent children not committed to the industrial school and expressly places supervision of the detention home in the juvenile court. It is a singular situation indeed if the law, under the provisions of section 46-125, supra, which clearly gives the juvenile court authority to place a delinquent child with such person, in such environment and under such supervision as the judge may deem to be for the good of the child and interest of the state, denies to the court or the judge thereof the authority to exercise such supervision over a child Committed to the industrial school as the court or judge deems to be for the good of the child or the interest of the state. It is this type of boy who is committed to the industrial school who needs such supervision more than any other type coming before the court.
It is my view that section 46-132, supra, vested the court with authority to protect boys committed to the institution from mistreatment or brutality of any character in the enforcement of its judgments and orders. Under a judgment of commitment it is just as much the duty of the superintendent of the industrial school to protect such a resident from improper or brutal treatment as it is to protect his health or as it is to safely keep him within the institution. Webster defines “safe” to mean, “free from danger of any kind, as safe from enemies; safe from disease.” Louisville & N. R. Co. v. Brownlee, 14 Bush 590, 595, 77 Ky. 590, 595. And under the provisions of section 46-129, A.C.A.1939, which provides *132that any persons who wilfully violates or neglects or refuses to obey or perform any order of the juvenile court may be proceeded against for contempt provides ample authority for the respondents’ citation for contempt and upon sufficient proof of violation of such judgments or orders the court has authority and power to punish as for civil contempt.
This is a civil action, not criminal, and as I see it the case of Howard v. State, 28 Ariz. 433, 237 P. 203, which had to do with the enforcement of a judgment in a criminal case, has no application here and it is therefore unnecessary to overrule that decision in this case.
In dissenting from the majority opinion I am concerned only with the power and jurisdiction of the superior court exercising juvenile jurisdiction as determined by what I consider to be a reasonable interpretation of the constitution and the acts of the legislature relating thereto. Whether the officials or employees of the industrial school have overstepped the rules of propriety or committed any wrong whatsoever, I have no knowledge. That question is not before us. It rests exclusively with the superior court.
I am thoroughly convinced that the respondents acted within their constitutional and statutory authority in issuing the rule to show cause against petitioner and that the writ of prohibition should be quashed.