I respectfully dissent. The core of the majority’s holding is contained in the following passage: “On the *1033other hand, as we have pointed out, it cannot be said this juvenile court has been given exclusive or even original jurisdiction of all children under 18 years of age who commit a crime. Jurisdiction of these courts is not to be classified as primary or secondary. To decide otherwise would constitute a holding that the legislature intended to abandon all criminal prosecutions of juveniles under the age of 18 years, except at the discretion of the juvenile judge who must decide whether the district court could or could not try a child under 18 years of age for a crime. Since this legislation does not so provide, we need not consider the legality of such an enactment.”
I believe the legislature did intend and in fact did provide that determination of the question as to whether a child is to be treated as a child in juvenile court or as an adult in criminal court should be left exclusively in the hands of the juvenile court. It is submitted that careful review of both chapters 231 and 232, as now reenacted, will bear this out. Further the failure of the legislature to repass parts of old chapter 232 makes our former pronouncements of doubtful validity now.
Before proceeding to the detailed review of the various statutory sections we should take a broad look at what we do here. We acknowledge the enlightened and beneficent purpose and result of the juvenile law but we rest its applicability to given individuals in the hands of the prosecutors, not in the hands of the courts where it-belongs.
The majority’s treatment of this objection is unsatisfactory. “Defendant complains of the power permitted a county attorney to bring these cases to the district court, but we must point out this is not an arbitrary power. He must have the approval of the court to file a true information against anyone. Section 769.8 of the Code.”
The approval of what court? The personnel of the juvenile court and of the district court are not necessarily the same.' Indeed under chapter 231 it is the mandatory duty of the judges in the larger districts to designate one of their number as juvenile court judge or appoint a superior or municipal court judge to handle those duties. If the juvenile court and the district court are. one and the same, does the act of designating the *1034municipal court as juvenile judges raise those judges to the level of the district court ? Or do we take the juvenile court law as it is written; i.e.', creating a separate court under a separate chapter with a separate staff of probation officers, physicians and nurses created for special and separate purposes %
In any event the county attorney may get approval of his county attorney’s information from any one of several district court judges (who may not even know the accused is a juvenile), or he may proceed directly to the grand jury (bypassing approval by the court). Thus the efficacy of the juvenile law is lost to the individual, not on the basis of judgment by the court, whose business it is to judge, but on the basis of judgment by the county attorney, whose business it is to prosecute.
I believe that several of the new juvenile court statutes show that the above result was not intended, indeed that the legislature sought to avoid that very result.
Section 232.17 provides: “If a child is not released as provided in section 232.16, the person taking the child into custody shall notify the court as soon as possible of the detention of the child and the reasons for the detention. The child shall be taken immediately to a place of detention specified in section 232.18 and may be held for not longer than twenty-four hours after the taking into custody unless an order for detention specifying the reason for the detention is signed by the judge. No child may be held longer than forty-eight hours after the taking into custody unless a petition had been filed and the judge determines that the child shall remain in custody or unless the court refers the matter to the prosecuting authority for proper action in the criminal court. The parents, guardian, or custodian of the child shall be notified of the place of detention as soon as possible. If continued detention is not ordered, the court or designated officer shall release the child in the manner provided in section 232.16.”
Section 232.19 provides: “Detention in jail — -when. No child shall at any time be confined in a police station, lockup, jail, or prison except that a child may be detained for the purpose of protective custody for a period not to exceed twelve hours or a child fourteen years of age or older may upon the *1035order of the judge be temporarily confined in a room entirely separate from adults in an adult detention facility. A child may be detained in an adult detention facility upon order of the judge only if the child is alleged to be delinquent and has shown by his habits, conduct, or conditions that he constitutes a menace to himself or society to the extent that he cannot be released or cannot be detained in a place designated in subsections 1, 2, or 3, of section 232.18.”
Section 232.20 states: “Notice to court by custodian of jail. The sheriff, warden, or other official in charge of a jail or other facility for the detention of adult offenders or persons charged with crimes shall inform the juvenile court immediately when a child who is or appears to be under eighteen years of age is received at the facility.”
Section 232.61 states: “Mandatory transfer from justice court. Any child taken before any justice of the peace or police court charged with a public offense shall, together with the case, be at once transferred by said court to the juvenile court.”
It would seem that these mandatory provisions that the juvenile court be notified as soon as a child is taken into custody, that justice of peace and police courts must transfer jurisdiction immediately to the juvenile court, that the jailer shall immediately notify the juvenile court when he has a person who even appears to be under the age of 18 years, all contemplate that the county attorney will not be able, on his own motion, to go into the adult criminal court and swear out an information before the juvenile judge can act. Nor does it seem that the county attorney should be able to do this on his own initiative after the juvenile court has acquired jurisdiction. Otherwise what is the purpose of the hearing clearly contemplated in section 232.27 where it is said in part “* * # except that if the hearing involves a child charged by information or indictment with the commission of a felony, persons having a legitimate interest in the proceedings, including responsible representatives of public information media, shall not be excluded from such hearings.” ?
Naturally the need for section 232.62 giving juvenile court and criminal court concurrent jurisdiction is present. If the *1036juvenile court judge (the only proper person to make the determination) does decide that the youth should be tried as an adult,this concurrent jurisdiction is necessary. But this should not mean concurrent original jurisdiction. The whole purpose of chapter 232, as now written, contemplates that the criminal court’s jurisdiction should not commence until the juvenile court judge orders trial in criminal court under the powers conferred in section 232.17. “# * * or unless the court refers the matter to the prosecuting authority for proper action in the criminal court.”
The majority relies on State v. Reed, 207 Iowa 557, 218 N.W. 609, and Ethridge v. Hildreth, 253 Iowa 855, 114 N.W.2d 311. The Ethridge case depends on the Reed ease. The Reed ease depends in large part on former section 3636, Code 1927, later designated as section 232.20, which was repealed by the Acts of the Sixty-first General Assembly (1965), chapter 215, section 1, and was not replaced by a comparable statute. This heavy reliance on the now repealed statute appears in part at 207 Iowa, loc. cit. 561, 562:
“This adds strength to the suggestion that the jurisdiction of the juvenile court is exclusive.
“One other section, however, casts serious doubt upon this conclusion. Section 3636, Code of 1927, provides:
“ When there is a conviction in the district court of any delinquent child of an indictable offense, the district court may' enter judgment thereon, or, if the punishment be not imprisonment for life, or death, it may transfer the cause to the juvenile court. The juvenile court shall have power to proceed with such child under the alternative or mandatory commitments provided in this chapter; but if the results, in the opinion of the court, be not conducive to the public interest and the welfare of the child, it may at any time revoke such orders of commitment and-enter such judgment of conviction as the district court might have entered.’
“* * * It is a difficult matter to harmonize these conflicting sections, and we are unable to do so, except to hold that a child under 18 years of age may be in the district court under indictment in two ways. If the matter has been taken up by the juve*1037nile court, and the juvenile judge determines that he should be charged with an indictable offense, he should then, acting as a magistrate, conduct a preliminary examination in the usual form, and if he concludes that a public offense triable on indictment has been committed, and there is sufficient reason for believing defendant guilty thereof, the defendant should be ordered held to answer to the grand jury. Or, on the other hand, by reason of Section 3636, above quoted, it is equally obvious that the grand jury may return an indictment (or the county attorney may fide an information) with equal force and effect without first submitting the matter to an investigation in the juvenile court, and if it should develop on the trial under the latter procedure that the defendant is under 18 years of age, the district court has the discretion, in event of a verdict of guilty, of attaching the usual punishment, or he may refer the same to the juvenile court for disposition.”
With section 3636 eliminated it is reasonable to believe that the legislature intended a new approach; i.e., initial exclusive control in the juvenile judge.
Ethridge v. Hildreth, supra, also decided before the 1965 amendment, relies entirely on former section 3636 and on State v. Reed, supra. Under the circumstances the only validity that those two cases can have in this ease is to indicate a new legislative intent; i.e., that the only committing magistrate with power to refer a juvenile for adult criminal trial is the juvenile court. This seems to be the only logical conclusion when we consider:
(1) That the new juvenile section 232.17 provides: “No child may be held longer than forty-eight hours after the taking into custody unless a petition has been filed and the judge determines that the child shall remain in custody or unless the court refers the matter to the prosecuting authority for proper action in the criminal court.” (Emphasis added.)
(2) Jurisdiction of police courts and justice of peace courts over juveniles is abolished (except for traffic violations).
(3) Former section 3636 was not reenacted or its sense substituted in any other section of the new chapter.
*1038I would reverse this ease for juvenile hearing so that the juvenile court, and only the juvenile court, can determine whether this person is to be tried as an adult or handled in the juvenile court as a minor under the age of 18.