DISSENTING OPINION
•Gilkison, C.J.—In Indiana the legislature has authorized instituting prosecutions by affidavit except the offenses of treason and murder. The statute granting this authority is as follows:
“All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.
“And such affidavit may be filed in vacation time as in term time, but only with the approval of the judge of such court, who may arraign and admit to bail as in term time, or may receive a plea of guilty and proceed forthwith as in term time.”
This statute was enacted originally in 1905, Acts 1905, Ch. 169, §118, p. 584, 611. It was amended by *656Acts 1927, Ch. 132, §4, p. 411, 415, but only with respect to filing the affidavit in vacation, and being the last sentence in the statute as quoted above. Prior to the enactment of this statute all prosecutions were required to be by grand jury indictment or by information as provided for by the common law and the state and national constitutions. Art. 1, §13, Indiana Constitution, 5th Amendment United States Constitution. This statute being criminal, and in derogation of the common law as consistently followed in Indiana from 1816 until the date of its enactment, must be strictly construed in favor of the defendant and against the state. State v. Lowry and Lewis v. State (1906), 166 Ind. 372, 393 to 397 inclusive, 77 N. E. 728, 4 L. R. A. (N. S.) 528, 9 Anno. Cas. 350; Hammell v. State (1926), 198 Ind. 45, 52, 152 N. E. 161; Ashbaucher v. Price (1924), 83 Ind. App. 604, 607, 145 N. E. 775; State v. Squibb (1908), 170 Ind. 488, 491, 492, 84 N. E. 969; Pontarelli v. State (1931), 203 Ind. 146, 171, 176 N. E. 696; Kelley v. State (1933), 204 Ind. 612, 630, 185 N. E. 453.
If there is any doubt as to whether the statute in question will permit an affidavit charging a crime or misdemeanor to be filed in the circuit court when the same charge is pending in the city court (a court with full jurisdiction to hear and determine the case here involved) that doubt must be resolved against the state. This court has reiterated additional controlling law as follows:
“ ‘Another fact to be considered is that the statute, which, as a penal enactment, cannot .receive an equitable construction, is subject to be limited, so far as the meaning of its words are in doubt, by the fact that it is in derogation of the common law. “The general rule in exposition of all acts of parliament is this, that in all doubtful matters, and where the expression is in general *657terms, they (the words) are to receive such a construction as may be agreeable to the rules of the common law, in cases of that nature; for statutes are not presumed to make any alteration in the common law, further or otherwise than the act does expressly declare.” ’ State v. Lowry (1905) and Lewis v. State (1905), 166 Ind. 372, 77 N. E. 728.”
Kelley v. State (1933), 204 Ind. 612, 630, supra; Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 42, 91 N. E. 939; City of Indianapolis v. Indianapolis Water Co. (1916), 185 Ind. 277, 288, 113 N. E. 369. See also: 50 Am. Jur. Statutes, §§402, 403, pp. 425 to 428. 59 C. J. Statutes, §617, p. 1039.
The statute before us in this case (§9-908, Burns’ 1942 Replacement) is not doubtful in any sense. There is nothing in it requiring a judicial construction, and if there were, since it is a criminal procedure statute, and in derogation of the common law we cannot give it an equitable construction either to put something in it the legislature left out, or to take something out of it the legislature put in. State v. Lowry and Lewis v. State, supra. The exception contained in the statute as follows: “except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit,” (my italics) must be given full force and effect. Rogers v. State (1937), 212 Ind. 593, 594, 10 N. E, 2d 730. If this exception is given full force and effect the prosecution of the charge by affidavit in respondent’s court cannot be pursued further, because the respondent judge is without jurisdiction to entertain the case. State ex rel. Spurlock v. Reeves (1949), 227 Ind. 595, 597, 87 N. E. 2d 725. It is an accepted fact in this case that when the affidavit was filed in respondent court on October 24, 1951, a prosecution for the same offense was pending in the *658city court of Evansville where it was filed by the state on October 13, 1951. It remained on file in the city court at least until October 30, 1951, and a serious question is presented whether it is not still pending in that court. However, the statutory exception noted prohibits the filing of an affidavit “when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit.” (My italics). The affidavit in respondent’s court in the case at bar comes squarely and unequivocally within the statutory exception noted. Respondents are without jurisdiction to act in the matter, and a permanent writ of prohibition should issue.
Dismissal of the prosecution in the city court after the filing of the affidavit in respondent’s court (if that has been done) would not and could not have the effect of then enduing respondents with jurisdiction in the pending case. That jurisdiction is specifically denied them by the exception contained in the very statute that authorizes the prosecution by affidavit. The jurisdiction to entertain a prosecution by affidavit always has been limited by this exception. The majority opinion in substance destroys, the exception, as though it were within the power of the court to repeal part of a legislative act that is in all -things constitutional. This action is in direct conflict with the controlling rule announced by the United States Supreme Court and fully adopted by our court as follows:
“The fact must be remembered that the statute we are called on to construe is a criminal statute; and that the rule applicable to such statutes is that of strict construction; that is, the case must be within the spirit as well as the letter, of the statute. This rule, said Chief Justice Marshall, in United States v. Wiltberger (1820), 5 Wheat. *76, *95, 5 L. Ed. 37 ‘is founded on the tenderness of the law for the rights of individuals; and on *659the plain principle, that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.’ Mr. Endlich states that the rule of strict construction ‘requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. To determine that a case is within the intention of a statute, its language must authorize the court to say so; but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions, so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated. In this characteristic, the difference between liberal and strict constructions is clearly presented. Whilst the letter of a remedial statute may be extended to cases clearly within the same reason and within the mischief the act was designed to cure, unless such construction does violence to the language, a consideration of the old law, the mischief and the remedy, though proper in the construction of criminal as well as other statutes, is not in itself enough to bring a case within the operation of the former class of statutes; their language, properly given its full meaning, must, at least by that meaning, expressly include the case; and in ascertaining that meaning the court cannot go beyond the plain meaning of the words and phraseology employed in search , of an intention not certainly implied in them.’ Endlich, Interp. of Stat., §329.”
State v. Lowry and Lewis v. State (1906), 166 Ind. 372, 393, supra.
So far as I can find when a statute in derogation of the common law is enacted, it always has been the rule that:
“'It will be presumed that the legislature does not intend by a statute to make any change in the common law beyond what it declares either in ex*660press terms or by unmistakable implication. The construction of á statute will be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the act in question. (Many authorities).
“ . . When the common law and a statute differ, the common law gives place to the statute, only where the latter is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. 1 Blackstone’s Comm. *89. It is a rule of exposition that statutes are to be construed in reference to the principles of the common law, for it is not to be presumed •that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced, for if the parliament had had that design, it is naturally said they would have expressed it. Dwarris, Statutes 695.’ ”
Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 42, 43, supra. (The last paragraph quoted being an approved quotation from State v. Norton (1850), 23 N. J. L. 33.)
The statute involved not only does not authorize the filing of a criminal charge by affidavit when a prosecution for the same offense is pending at the time in a court "of competent jurisdiction but by the exception contained in the statute it expressly prohibits such filing.
We have a statute authorizing this court to issue writs of prohibition to confine certain inferior courts to their lawful jurisdiction. §3-2201, Burns’ 1946 Replacement. The purpose of this statute and of prohibition is to protect parties from injury by the unwarranted usurpation of jurisdiction by courts, and also to protect the dignity of the sovereign state by preserving the integrity of its judicial system in prevent*661ing unseemly controversy and confusion between co-ordinate courts. This court has stated the law applicable to the situation before us, thus:
“. . . Two courts of concurrent jurisdiction may have jurisdiction of the same class of cases, and may acquire jurisdiction of the same person, but where one of the two first acquires jurisdiction of the subject-matter and person in a particular case, the jurisdiction becomes exclusive. . . the court having jurisdiction of the particular case in litigation, effectively segregates that case from the general class and excludes all other courts of like jurisdiction from assuming any authority in connection therewith. Proper and orderly administration of the laws compel these courts to thus observe the rights of each other, in order to prevent unseemly, expensive and dangerous conflicts of jurisdiction and of process.’ ”
State ex rel. Kunkel v. LaPorte Circuit Court (1936), 209 Ind. 682, 694, 200 N. E. 614; State ex rel. Cook v. Circuit Court of Madison County et al. (1923), 193 Ind. 20, 27, 138 N. E. 762.
“ ‘A court that proceeds in the trial of a cause against an express prohibition of a statute is exceeding its jurisdiction and may be prevented by prohibition from this court.’ ”
State ex rel. Kunkel v. LaPorte Circuit Court, supra, p. 694, quoting Hayne v. Justice’s Court (1889), 82 Cal. 284, 285, 23 Pac. 125 and citing Culver Contracting Corp. v. Humphrey, Supreme Court Justice (1935), 268 N. Y. 26, 196 N. E. 627.
If there is any reason why the venue in the case involved in the two courts should be laid in the respondent court the law provides ample ways in which that may be done, but it must not be accomplished by an unlawful usurpation and a resulting conflict of jurisdiction.
*662The writ should issue permanently prohibiting the respondents from proceeding further in the case involved.
Note.—Reported in 104 N. E. 2d 735.