Dissenting. This is an original proceeding in the supreme court -wherein the Chief of Police of the City of Minot and the Police Magistrate of the City of Minot seek a review, by a supervisory writ of this court, of the action of Honorable A. J. Gronna, Judge of the District Court of Ward County, in issuing writs of habeas corpus and upon hearings thereunder discharging from custody of the chief of police, Arthur Helland and Thomas Smith.
Arthur Helland and Thomas Smith are sixteen years of age. They were arrested on the evening of August 11, 1952, by an officer of’ the police department of the City of Minot and charged with disorderly conduct, an offense under the ordinances of the City of Minot. They pled guilty to the offense charged before the police magistrate of the city who sentenced each of them to be confined to the city jail for a period of ten days and to pay a fine of $5.00 and the costs of the action, amounting to an additional $5.00, and in default of the payment of fine and costs, each was sentenced to an additional ten days in jail. On the day of sentence, upon application of the offenders, Honorable A. J. Gronna, Judge of. the District Court of Ward County, issued writs of habeas corpus directing the chief of police to deliver the offenders to the district court. At the hearings on these *717writs, the district court determined that the offenders were illegally imprisoned and issued orders commanding the chief of police to discharge them from custody.
A petition was filed in this court by the officers of the City of Minot invoking the power of general superintending control over inferior courts, and we, deeming this a proper case for the exercise of the jurisdiction vested in this court by the constitution, (See State ex rel. Johnson v. Broderick, 75 ND 340, 27 NW2d 849) issued an order to the district court to show cause why his orders, directing the discharge of the offenders should not be reviewed and set aside. The district court accordingly made his return, upon which a hearing was had and arguments presented on behalf of the officers of the City of Minot and on behalf of the offenders.
The facts with respect to the offense, arrest, and sentence of the offenders are the same in each case and the problems of law are identical. The boys in petitioning for writs of habeas corpus and the district court in granting the writs took the position that because of certain provisions of Chapter 27-16 NDRC 1943, commonly known as the juvenile court law, the police magistrate of the City of Minot was wholly without jurisdiction to sentence juvenile offenders for violations of ordinances of the city. There is no question as to the ages of the offenders or the commission of the offenses.
The juvenile court is in fact the district court functioning under a special statute (Section 27-1601 NDRC 1943). Section 103 of the North Dakota Constitution provides: ;-
“The district courts shall have original jurisdiction, except as otherwise provided in this constitution, of all causes both at law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction and' other original and remedial writs, with authority to hear and determine the same.”
Section 111 of the North Dakota Constitution provides:
“The county court shall have exclusive original jurisdiction . In probate and testamentary matters, . ...”
*718The authorities of the City of Minot rely on Section 113 of the North Dakota Constituti on, which provides :
“The legislative assembly shall provide by law for the election of police magistrates in cities, incorporated towns, and villages, who in addition to their jurisdiction of all cases arising under the ordinances of said cities, towns and villages, shall be ex officio justices of the peace of the county in which said cities, towns and villages may be located. And the legislative assembly may confer upon said police magistrates the jurisdiction to'hear, try and determine all cases of misdemeanors, and the prosecutions'therein shall be by information.”
It is contended that under this section the police magistrate has jurisdiction of all cases involving offenses by juveniles, as well as adults, arising under the city ordinances and that, insofar as- the juvenile court act may deprive a police magistrate of the jurisdiction thus constitutionally vested in him, it is void.
In McDermont v. Dinnie, 6 ND 278, 69 NW 294, after quoting Section 113 of the North Dakota Constitution, this court said:
“It will be observed that police magistrates and their courts are provided for and established by the constitution. This being the case, the legislature is powerless to legislate the one or the other out of existence. This proposition is admitted in terms by the counsel for respondents, and, being elementary, no authorities need be cited. The term ‘police magistrate’ or ‘police justice’ has a definite and well-understood meaning. Allen, J., in Wenzler v. People, 58 NY 530, thus defines it: ‘A police justice is a magistrate charged exclusively with the duties incident to the common-law office of a conservator or justice of the peace, and the prefix “police” serves merely to distinguish them from justices having also civil jurisdiction.’ A police magistrate is an inferior judicial magistrate, whose jurisdiction in the absence of'constitutional or statutory extensions,-is confined to criminal cases arising under the ordinances and regulations of a municipality. Hence a court presided over by such magistrate was never a court of record, never had a seal, or was entitled to a clerk. It will be observed, also, that Section 113 of the constitution confers absolutely upon police magistrates a certain jurisdiction, to-wit: jurisdiction of all cases arising under the *719ordinances of said cities, towns, and villages, and also the jurisdiction of county justices of the peace.”
Under Section 85 of the North Dakota Constitution “The judicial power of the state of North Dakota shall be vested in a supreme court, district, courts, county courts, justices of the peace, and in such other courts as may be created by law for cities, incorporated towns and villages.” Concerning this section, it is said in McDermont v. Dinnie, supra:
“Undoubtedly, the legislature, under Section 85 of the constitution, might create additional courts for cities, incorporated towns, and' villages; but it cannot abolish those established by the constitution.”
In Becker County Sand and Gravel Co. v. Wosick, 62 ND 740, 245 NW 454, in an opinion written by Judge Christianson, after quoting Section 85, this court said:
“This constitutional provision inhibits the legislature from abolishing any of the courts enumerated therein or from diminishing or increasing their jurisdiction . . . (Citing Mc-Dermont v. Dinnie, supra.)
In Espeland v. Police Magistrate’s Court of City of Grand Forks, 78 ND 349, 49 NW2d 394, this court again spoke through Judge Christianson and in the syllabus by the court, consisting of all the present members, we said:
“A police magistrate is ex officio justice of the peace of the county in which the city in which he holds office as police magistrate is located. As police magistrate he has exclusive jurisdiction to hear, try and determine all cases arising under the ordinances of the city; as ex officio justice of the peace he has concurrent jurisdiction with, the justices of the peace of the county in all civil actions and in all criminal actions for offenses against the laws of the state committed within the county. ND Const, Sec 113; NDRC 1943,40-1801.”
In Section 40-1801 NDRC 1943 it is said:
“The police magistrate within a city and the village justice of the peace within a village each shall have exclusive jurisdiction of, and shall hear, try, and determine, all offenses against the ordinances of the city or village, as the case may be.”
*720Section 40-1110 NDRC 1943 provides:
“Any action brought to recover any fine, to enforce any penalty/ 'or to punish' any violation of an ordinance of any municipality shall be brought in the corporate name of the municipality as plaintiff.” •
In Village of Litchville v. Hanson, 19 ND 672, 124 NW 1119, we find that:
“City or village ordinances, though penal in character, are not criminal laws. Prosecutions under city or village ordinances are not covered by that section of the Constitution which reads: ‘All prosecutions shall be in the name and by authority of the state of North Dakota.’ Cases under city or village ordinances, while resembling criminal cases in being penal proceedings, are not, strictly speaking, criminal proceedings.”
These are the cases over which Section 113 vests jurisdiction in police magistrate courts.
Under Section 103 of the constitution the district courts are given general original jurisdiction, except as otherwise provided. It was otherwise provided by Section 111 in which the county .courts were given exclusive jurisdiction in probate matters. It was also otherwise provided in Section 113, which, as we have stated in the quotations above, confers upon police magistrates jurisdiction in all cases arising under the ordinances of' cities, towns, and villages. It may be noted that Section 113 uses the word “cases,” while Section 103 uses the word “causes.” These words as used in these two sections of the constitution are synonymous and import a state of facts which furnishes occasion in each instance for the exercise of the jurisdiction of the court. Buell v. Dodge, 63. Cal 553.
It is pointed out that cities are incorporated through general law of the legislature and that they are creatures of statute subject to the legislative will. See State ex rel. Shaw v. Frazier, 39 ND 430, 167 NW 510; North Fargo v. Fargo, 49 ND 597, 192 NW 977; Sitte v. Paulson, 56 ND 146, 216 NW 344; Fargo v. Sathre, 76 ND 341, 36 NW2d 39. .In none of these cases was a municipal court or its jurisdiction involved. It is fallaciously assumed that the legislative authority over the governmental and proprietary powers of cities extends to the jurisdiction of *721police magistrates. An examination of pertinent constitutional provisions makes the error apparent.
Article VI deals with municipal corporations and consists only of Section 130, which reads:
“The legislative assembly shall provide by general law for the organization of municipal corporations restricting their powers as to levying taxes and assessments, borrowing money and contracting debts, and money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law.”
This article and section is wholly silent regarding the creation or organization of courts within municipal corporations. This silence is significant and in itself becomes eloquent when we turn to Article IV dealing with the judicial department and consisting of Sections '85 to 120 inclusive. By this article the constitution itself sets up a complete judicial system from the supreme court of the state down to and including the courts of police magistrates. The creation of police magistrates courts was not left to the discretion of the legislature. Neither could the legislature determine their jurisdiction by general law, nor could the jurisdiction thereof be increased or diminished by a legislative enactment. See Becker County Sand and Gravel Co. v. Wosick, supra. The question here is not one of the power of the legislature over cities, but one of the power of the legislature over the judicial system of the state. The prevailing decision views the court of the police magistrate as a mere incident of municipal government. ' To me this court is an integral part of the coordinate judicial branch of the state government created not by the legislature but by the constitution and made a component part of the judicial system.
It is of interest here to note that the legislature itself has shown reluctance to assume responsibility for the creation of courts and the determination of their jurisdiction beyond that now prescribed by the constitution. At the recent Thirty-third Legislative Assembly of North Dakota 'the assembly itself rejected Senate Concurrent Resolution C which, if submitted to and approved by the electorate, would have amended or repealed *722various sections of the constitution, including Section 113 providing for municipal courts, and would have provided that “The judicial power of the State of North Dakota shall be vested in a Supreme Court, District Courts, and such other courts as may be created by law.” The rejection of this resolution indicated a desire on the part of the legislature to permit the courts and their jurisdiction to remain as presently provided for in the constitution.
Section 113 is a .plain and direct mandate to the legislature to provide for the election of police magistrates in cities, incorporated towns, and villages “who in addition to their jurisdiction of all cases arising under the oi’dinances of said cities, towns and villages, shall be ex officio justices of the peace . . . .” The conclusion is inescapable that the legislature cannot diminish the jurisdiction of police magistrates by transferring a part of it to another court. The power here in question is primarily judicial, not municipal and may not be curtailed or abolished by general law.
The books contain many cases dealing with procedure in juvenile courts under myriad and divergent statutes. Diligent search has revealed no constitutional' provision such as our Section 113 and none has been cited to us. Neither search nor citation reveals a single case where the' legislature has been permitted to impinge upon constitutionally conferred jurisdiction. An analogous situation was presented in People v. Lattimore, 362 Ill 206, 199 NE 275, wherein it is said:
“Article 6 of the Constitution of 1870 created our judicial system. By section 26 of that article the criminal court of Cook county was established and its jurisdiction defined. While the circuit court is a court of general jurisdiction, yet the jurisdiction of the circuit court of Cook county is not necessarily the same in all respects as the circuit courts.of other counties of the state. It does not have concurrent jurisdiction with the criminal court of Cook county- of criminal- causes, but jurisdiction of criminal cases is by section 26 of our Constitution placed in the criminal court of Cook county. People v. Feinberg, 348 Ill 549, 181 NE 437; People v. Warren, 260 Ill 297, 103 NE 248. *723The juvenile court is a court of limited jurisdiction. The Legislature is without authority to confer upon an inferior court the power to stay a court created by the Constitution from proceeding with the trial of a cause jurisdiction of which is expressly granted to it by the Constitution. Nor, in our opinion, was it the legislative intent to attempt to confer such power upon the juvenile court.” See also People ex rel. Malec v. Lewis, 362 Ill 229, 199 NE 276.
In this state, while cities are creatures of statute created by the legislature under authority of and within the limits prescribed by the constitution, most of our courts, including those of the police magistrates, are creations of the constitution itself and, wherever the jurisdiction of these courts is provided by the constitution, it may not be abrogated or altered by legislative action, and in this respect the same rule applies to the courts of police magistrates that applies to the district court and the supreme court.
“In the constitutional form of government the three departments — legislative, executive, and judicial — depend for their powers on the organic law of the state. Hence, the Constitution is the common source of the power and authority of every court, and all questions concerning jurisdiction of a court must be determined by that instrument, with the exception of certain inherent powers which of right belong to all courts] Therefore, unless the power or authority of a court to perform a contemplated act can be found in the Constitution or the laws enacted thereunder, it is without jurisdiction and its acts are invalid. Thus, while the legislature may, within proper bounds, prescribe rules of practice and procedure for the exercise of jurisdiction by the courts, it cannot abridge or enlarge powers conferred on them by the Constitution or take away jurisdiction thereby vested in them.” 14 Am Jur, Courts, Section 163.
“Except in so far as authorized by the constitution, the legislature cannot- abolish, divide, reorganize, or consolidate constitutional courts, nor alter or diminish the essentials of the jurisdiction, functions, or judicial powers conferred on such courts.” 21 CJS, Courts, Section 122.
I can reach no conclusion other than that the district court act*724ing as a juvenile court cannot interfere with the jurisdiction of a police magistrate court which has obtained jurisdiction of a person over fourteen years of age’and under eighteen years of age in a case arising under a city ordinance. This opinion would end here but for the fact that much has been written and said which tends to obscure rather than clarify the jural issues. The history of the development of juvenile courts in America shows a noble shift in the administration of justice with respect to children from punishment to rehabilitation. This movement sprang from the prerogative of the state as parens'patriae to protect the interests of children. But like all other powers of the state, it must be exercised in accordance with the provisions of the constitution. The question here is not one of social policy but of constitutional powers. The people first and finally speak through their constitution which is the supreme law of the state to which the doctrine of parens patriae must yield in event of conflict. This is still “a government of laws and not of men.”
The proponents of the writs seek solace in obiter dicta to be found in the case of State ex rel. Neville v. Overby, 54 ND 295, 209 NW 552. The opinion in that case must be read in-the light of the issues then before the court which involved only the criminal jurisdiction of the district court’ versus the jurisdiction of the district court acting as a juvenile court. The case concerned state criminal statutes and not city ordinances. There was no question of constitutional law and no question of the jurisdiction of police magistrates under Section 113 of the constitution. This is thus clearly stated by the court in its opinion as follows:
“We are not concerned with-the question of the jurisdiction of police magistrate and justices of the peace over juvenile offenders against the law. The persons in whose behalf the writ of habeas corpus is prosecuted, are not held by virtue of a commitment issued by the police magistrate or- justice of the peace; they are held by virtue of a judgment of conviction of a felony in the district court which has exclusive jurisdiction over such-offenses.”
It is argued that the • legislature has power to fix the age at which children may be held to be criminally responsible and that it follows that the age-may be fixed either-absolutely -or condi*725'tionally. This may be true in'some respects, depending, however, upon the conditions. . The legislature has.-fixed the age of criminal responsibility in this state by Section 12-0201 NDRC 1943 which provides that:
“All persons are capable of committing crime except those belonging to the following classes: .
“1. Children under the age of seven years;
“2. Children over the age of seven years but under the age of fourteen years, in the absence of clear proof that at the time of committing the act or neglect charged against them they knew its wrongfulness
The rules thus stated are applicable to all courts. Our juvenile law, Chapter 27-16 NDRC 1943, does not purport to change or modify the'rules of capacity to commit crime. But according to the views' of the proponents of the writs, it vests in the juvenile court jurisdiction superior to that of police magistrate courts over child offenders against city ordinances. It does not purport to make a .child incapable of committing the offense. It strongly infers just the opposite when it says:
“When any child, fourteen years of age or older, is charged with commission' of an offense, a judge of the juvenile court, in his discretion, may permit such child to be proceeded against in accordance with the laws or ordinances which may be in force governing such offense.” Section 27-1613 NDRC 1943.
Thus the law recognizes that a child fourteen years of age or older is capable of committing an offense. But it is claimed that the judge of the juvenile court, not the statute, not the constitution, determines whether the offender may be proceeded against in accordance with a city ordinance governing the offense. The power which the statute thus purports to vest in the juvenile judge collides directely with the jurisdiction of the police magistrate, under Section 113 of the constitution. The constitution being supreme, the statute must yield. In this case the judge of the.. district court, relying upon the powers the statute purports to give him as judge of the juvenile court, erroneously reached the conclusion that he had the power to divest the police magistrate court of the jurisdiction which it had acquired over the two offenders against the ordinances of *726the City of Minot. Belying upon the statute, he improvidently issued writs of habeas corpus freeing the proponents of the writs from custody.
Burke, J., concurs.