Dissenting opinion.
Murchie, C. J.I am unable to concur in the opinion of Mr. Justice Fellows. It construes a provision in that section of our municipal court law which vests such courts with power to punish a child for juvenile delinquency or, in the alternative, to hold him for a grand jury, in a manner which seems, to me, entirely without justification. R. S., 1944, Chap. 133, Sec. 6. It does so without stating, except by implication, the principle of statutory construction it applies. The implication is that it gives statutory language its usual and ordinary meaning. It is undoubted that the rules of statutory construction declare that language which is plain and unequivocal needs no construction. It is obvious, however, that the opinion has dealt with a single provision without reference to the section, or the law of which it is a part, “as a whole,” as a well established rule of construction requires.
Reliance on the unequivocal nature of the language is implicit in the manner in which the opinion casts full responsibility for the decision it carries on the legislature which wrote the provision into our law. That was our Eighty-fifth Legislature, of which I was a member. P. L., 1931, Chap. 241, Sec. 4. The provision stands today, in R. S., 1944, Chap. 133, Sec. 6, in the exact language in which it was originally stated, without change in punctuation or context.
The provision follows express grant of power to place a child found guilty of juvenile delinquency on probation and carries a further express grant of power to:
*135“make such other disposition as may seem best for the interests of the child and for the protection of the community including”,
the power to commit him to a correctional institution. That is the only “other disposition” identified in P. L., 1931, Chap. 241, Sec. 4. Additional “other dispositions” since identified are to hold him for a grand jury and to commit him to the Pownal State School. When P. L., 1931, Chap. 241 became effective municipal courts were given a limited power to punish a child for juvenile delinquency, without reference to his interests or the protection of the community, by subjecting him to some form of probationary control, and they have been so limited at all times since. An express restriction was carried in the second paragraph of P. L., 1931, Chap. 241, Sec. 4, which prohibited a municipal court from holding a child for a grand jury except for an offense which this court in State v. Rand et al., 132 Me. 246; 169 A. 898, declared was beyond its jurisdiction. This curtailed the authority such a court would have had under R. S., 1930, Chap. 145, Sec. 13 (now R. S., 1944, Chap. 134, Sec. 13) if the jurisdiction over juvenile delinquency included any indictable offenses.
To get the complete historical picture in the record, it should be noted that P. L., 1943, Chap. 322, Sec. 2 deleted the paragraph restricting the authority of municipal courts to hold a child of juvenile age for a grand jury and declared such a power in terms of an express grant, by writing the words “holding such child for the grand jury or” into what is now R. S., 1944, Chap. 133, Sec. 6 immediately following the word “including” which closes the provision construed. Simultaneously it purported to enlarge the jurisdiction of municipal courts over juvenile delinquency by rewriting the definition of such jurisdiction and providing that when such courts were exercising it they should be “known as juvenile courts.” P. L., 1943, Chap. 322, Sec. 1. That the enactment did not enlarge the jurisdiction, because the language used was inept, is of no importance.
*136It does not seem to me that it can be doubted that criminal jurisdiction involves both the adjudication of guilt and the imposition of appropriate punishment. P. L., 1931, Chap. 241, in its original form, and as amended from time to time, has always contemplated that the jurisdiction vested by Sec. 1 (now the second paragraph of R. S., 1944, Chap. 133, Sec. 2) should be exercised by an adjudication of guilt of juvenile delinquency, under that section, and the imposition of punishment under Sec. 4 (now R. S., 1944, Chap. 133, Sec. 6), if, but only if, the power in that regard seemed adequate for the purpose. Otherwise, it has been contemplated, at all times, as the opinion recognizes, that:
“(under certain conditions) juvenile offenders * $ * should be dealt with as criminals and made amenable and accountable to the rigors of the criminal law.”
The clearest declaration in that regard is carried in the 1943 law already cited, where the power of a municipal court to hold a child for a grand jury is stated in terms of an express grant.
As the law stood at all prior times, the purpose that grant was designed to accomplish could not have been accomplished by repealing the restriction on the authority of a municipal court to hold a child for a grand jury to cases involving offenses that were aggravated. All the authority of a municipal court to hold anyone for a grand jury was then stated in R. S., 1930, Chap. 145, Sec. 13 (now R. S., 1944, Chap. 134, Sec. 13), the closing mandate of which is that if an offense is within the jurisdiction of a magistrate (a term including municipal courts and trial justices) :
“he shall try it and award sentence thereon.”
Writing the power of a municipal court to hold a child for a grand jury .in terms of an express grant must have indicated legislative intention that a municipal court having exclusive original jurisdiction over an offense, limited to finding him guilty of juvenile delinquency and punishing *137him as a juvenile delinquent, might terminate such jurisdiction by refusing to impose a limited punishment and by exercising, simultaneously, jurisdiction over the child, as distinguished from his alleged offense, in ordering him held for a grand jury, under bail.
The result reached in the opinion is accomplished by declaring that the provision construed imposes a jurisdictional requirement on the power to hold a child for a grand jury, rather than its power to impose bail. The course of reasoning by which it is accomplished is not made apparent. The opinion indicates that the provision imposes no jurisdictional requirement on the power to commit a child to a correctional institution, or that, if it does, the requirement is satisfied by necessary implication in exercising the power to commit. It cannot be doubted that when the provision was written into our law it related to nothing except the power to commit. The power to which the opinion finds that it relates exclusively was granted as an alternative to that power, and involves the exercise of no jurisdiction, within the ordinary meaning of that word, except that of imposing bail. Whenever the power to hold a child for a grand jury is exercised by any court having the power to take such action, its effect, undoubtedly, is to terminate all the jurisdiction of the court exercising it.
I digress to note that it is within the judicial knowledge of the court that for many years, if not at all times since the enactment of P. L., 1931, Chap. 241, children committed to our correctional institutions under its provisions have been committed by the use of printed mittimuses supplied by such institutions, or the administrative body which governs them. The forms so supplied require the courts to declare that there has been an adjudication of guilt of juvenile delinquency, but make no reference to the interests of the child or the protection of the community as the basis for the commitment. In all probability every child now held in such an institution under a commitment of a munici*138pal court is held under that form of mittimus. It is obvious that if the law establishes a jurisdictional requirement applicable to one of the powers vested in terms of an express grant following the provision, it must be equally applicable to each and" every other such power. If that is so, a child committed in disregard thereof and now restrained of his liberty thereby is restrained as unlawfully as the opinion finds the Petitioner to be. This possibility is sought to be cleared in the opinion, as I read it, by declaration that in the limited field of commitments, the requirement is supplied by the “necessary implication” of a record. Why it is not supplied as effectively when a child is ordered held for a grand jury as when he is committed is not stated.
The implication, perhaps, is that it is satisfied by an adjucation that the child is guilty of juvenile delinquency, but reference to the law will show that this is not so and cannot be so. The only power vested in a municipal court to punish a child on the basis of such an adjudication, without more, is to place him on probation in some form. This has been true at all times since the enactment of P. L., 1931, Chap. 241.
The decision is not supported by the citation of any authority; Eminent jurists and lawyers have been writing on juvenile delinquency and juvenile delinquency courts for more than half a century. Juvenile courts have been in operation in many states for many years. There must be a multitude of cases construing laws establishing them. Yet notwithstanding the undoubted great bulk of writings and decisions, no case or writing is cited declaring, or advocating, a jurisdictional requirement for terminating an exclusive original jurisdiction over juvenile delinquency. Neither is there any such citation for construing a juvenile delinquency law as requiring, or even permitting, a court vested with exclusive original jurisdiction over juvenile delinquency to adjudicate guilt thereof and simultaneously transfer jurisdiction on that issue to a higher court. The *139same thing is true with reference to the particular language involved. Neither a decided case nor a legal periodical is said to have declared or suggested, heretofore, that a jurisdictional requirement could be or should be found imposed on any court by a requirement limiting its action to what, to it, seemed best. It seems the worst kind of sophistry to me to say that a court empowered to take any one of several actions which may seem best to it must in exercising one of them make a record that it does so because it seems best. I am in entire accord with the declaration or implication of the opinion that if the provision restricts a municipal court to take the particular action among those authorized which may seem best to it, the taking of it carries the necessary implication that it does. The place where I disagree with the opinion is that I think it is as clearly and necessarily implied in holding a child for a grand jury as it is in committing him to a correctional institution.
A jurisdictional requirement, as that term is generally understood, operates to prohibit a court from exercising a power to sentence a person or subject him to bail, without compliance with it. I have never known the term to be applied heretofore to a refusal to exercise jurisdiction over an offense and hold the person accused of it for a higher court. My point is illustrated by State v. Hartwell, 35 Me. 129, cited in the opinion, where the validity of a recognizance was in issue. An exercise of jurisdiction over the person, as distinguished from the offense alleged against him, was undoubtedly involved, and the recognizance was held ineffective. The issue here has nothing to do with the effectiveness of the bail the petitioner was ordered to furnish.
I cannot be certain that the opinion declares an additional jurisdictional requirement because the particular term is not applied. It seems apparent, however, that it declares a formal hearing in a municipal court a necessary preliminary to holding a child for a grand jury. It makes no ref*140erence to R. S., 1944, Chap. 133, Sec. 24, which is a part of the chapter carrying the section of law in which the provision is contained, and has been at all times since our municipal court law was revised by P. L., 1933, Chap. 118. The express provision of that section is that in:
“all prosecutions before municipal courts * * *, the respondent may plead not guilty and waive a hearing.”
Why this is not applicable to the present case is not stated. It seems obvious that a municipal court is authorized to find a child guilty of juvenile delinquency, without a hearing, on his plea of guilty, and that it may commit him to a correctional institution, without a hearing, on such a plea. The opinion does not negative either procedure. I see no reason why it may not hold a child for a grand jury without a hearing if the child waives it, particularly when, as the record before us shows, he is represented by counsel in the municipal court. The record makes it apparent that the petitioner was represented there by the same able counsel who is prosecuting this petition. It cannot be doubted that the waiver was made as a considered action in the interests of the petitioner, or that it carried recognition that the inevitable result of a hearing would have been the holding that was ordered without one, on his waiver. No substantial right of the petitioner was prejudiced thereby.
The opinion carries many references to juvenile courts and to the necessity that our municipal courts in proper cases should act as juvenile courts, as well as to juvenile delinquency laws. It seems to ignore the facts that Maine has no juvenile courts and that it has not had a juvenile delinquency law except as part and parcel of our municipal court law since P. L., 1933, Chap. 118 incorporated the provisions of P. L., 1931, Chap. 241 into our municipal court law. The Legislature which enacted P. L., 1931, Chap. 241 rejected an act to establish a system of juvenile courts and gave us that law in its stead. See the Legislative Record *141for 1931 and particularly the act in question, Legislative Document No. 236, and the legislative action thereon.
In this case it is undoubted that the Portland Municipal Court was vested with power to hold the petitioner for a grand jury and that it purported to do so. It could have done so and placed the petitioner under effective bail under R. S., 1944, Chap. 133, Sec. 6, if the offense with which he was charged was within its jurisdiction, and under R. S., 1944, Chap. 134, Sec. 13, if it was not. The record before us shows clearly that it did not purport to act under the latter law, within the principle declared in State v. Hartwell, supra. The inference is strong that it purported to act under the former and that the refusal of its judge to “exercise jurisdiction over the offense,” charged in the complaint on which it was acting, was a refusal to adjudicate that he was guilty of juvenile delinquency and impose any punishment a municipal court was empowered to impose, accompanied by the decision that it seemed best under the circumstances to exercise jurisdiction over the person instead of the offense and hold the petitioner for the grand jury under bail. Assuming that the provision established a jurisdictional requirement to the imposition of effective bail, I can see no reason why the decision of the court to terminate its jurisdiction should not be recognized.
Before calling attention to one circumstance that should not be overlooked, I must refer casually to the construction placed on the phrase “any term of years.” It seems to me that the construction placed on it might be proper under the principle of liberal construction applicable to such laws as those providing limited punishment for juvenile delinquency, but such principle has never been declared applicable, so far as I know, to any particular phrase in a statute. It is applicable to statutes as a whole, and has been recognized in decided cases involving juvenile delinquency laws. It has never been applied in my knowledge in a manner that would infringe on another well established *142principle of statutory construction requiring that statutes in derogation of common law should be strictly construed. It would be one thing to construe it in a manner which would enlarge the exclusive original jurisdiction of a court to deal with juvenile delinquency if such jurisdiction was one, as I believe it has always been intended by our legislature that it should be, which was terminable by action of a municipal court in holding a child charged with a serious crime for grand jury action.
The sequence of past events is entirely plain. The petitioner feloniously and wilfully committed a homicide on November 20, 1949. He was taken before the Portland Municipal Court, charged with that offense, on November 22, 1949. That court, having the authority to hold him for a grand jury, purported to take that action. He was tried and convicted in the only court which can ever try him for it as a criminal. He is restrained of his liberty under a sentence imposed in that court. - The current event is that he is to be discharged therefrom forthwith. For future events the opinion offers nothing except complete uncertainty. It contemplates, probably, that new proceedings will be instituted to impose corrective treatment on the petitioner for juvenile delinquency or punish him for manslaughter, whichever he may deserve. Such proceedings must be commenced in the court which purported to hold him for the grand jury when complaint was made to it heretofore. That court had power to adjudicate his guilt of juvenile delinquency and subject him to corrective treatment, or hold him for the grand jury, that it might be determined in the only proper manner whether he had committed a crime which should be punished as such. It did not find him guilty of juvenile delinquency. It imposed no corrective treatment. The opinion does not say what the court should have done to hold the petitioner for the grand jury effectively. It does not construe the law except to declare that what was done was not effective. It furnishes no guide to future action for our courts or our prosecuting attorneys.
*143What effect, if any, are the events of the past to have on the future? The opinion does not say. The Kentucky Court in Tabbutt v. Commonwealth, 179 S. W. 621, in setting aside a conviction in a court which would have had jurisdiction of the offense charged against a child, if proceedings had been instituted in the court of original jurisdiction (which was a juvenile court) and appropriate action had been taken therein to terminate such jurisdiction, declared expressly that the proceedings set aside would not constitute a bar to new proceedings in either the juvenile court, or the higher court, if the original jurisdiction of the juvenile court was terminated. In that case, as in Ex Parte Parnell, 200 Pac. (Okla.) 456, and Fifer v. State, 90 Tex. Cr. R. 282; 234 S. W. 409, the jurisdictional requirement involved was age, something far different from what might seem, to be best. Yet in the last cited case it was held that even an age requirement might be waived in a court trying the child as a criminal if the waiver was made on the advice of counsel, as was the case with this petitioner. In each and every one of the cited cases the decision related to proceedings in a higher court commenced without prior proceedings in the court of original jurisdiction.
Is there a principle of law applicable to offenses over which municipal courts have a complete jurisdiction similar to that involving double jeopardy? What is the future of one convicted of crime in a criminal court, sentenced to a punishment the court has no jurisdiction to impose, and discharged therefrom on habeas corpus? Is a municipal court entitled to two chances to find a child guilty of juvenile delinquency for a single act? or to hold him for the grand jury? These are questions that will confront this court if and when the petitioner is called upon to answer to a new complaint. If a hearing is a jurisdictional requirement and cannot be waived, what is the situation to be when a child not only waives one but insists on his right not to participate vocally in one on the ground of his constitutional right not to give evidence which might incriminate him?
*144Many more questions may arise when a new attempt is made to prosecute the petitioner. The result can be that he will neither be subjected to corrective treatment nor punished. For that result, if it comes, I deny the responsibility of the Eighty-fifth Legislature. That is the particular purpose of this dissent.
The responsibility is a judicial one, accomplished by an unusual combination of liberal and strict statutory constructions of separate parts of a single law. Each operates for the benefit of one who stands in the position of a convicted felon, after proceedings in the two courts and the only two courts where prosecution of him was or is possible. I believe the construction erroneous and that our municipal court law, as a whole, should be construed liberally to give the maximum power and authority to our municipal courts to clear children from punishment for offenses, and records declaring them criminals, in all cases where it seems to the court that corrective treatment may accomplish its intended purpose, or, in the alternative, to permit them to hold children for a grand jury, without fetters of any kind, when it seems that that is not so.
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