Concurring.
Merrill, J.While I heartily concur in the majority opinion of the court, because of the dissenting opinion, I feel that it is my duty to set forth at length certain fundamental reasons which underlie some of the conclusions tersely and I believe correctly stated in the majority opinion, and which require my concurrence therein.
, Important as the result of this case is to the petitioner, and it cannot be denied that it is of the utmost importance to him, the determination of the fundamental principles of law upon which it must be decided and the application of the same to his case are even more important to the State itself.
*145It is a fundamental principle of law that no accused may be tried in, or sentenced and committed by a court that does not have jurisdiction over the offense with which he is charged and over his person. Lacking such jurisdiction the court is without legal right, authority or power to try, sentence or commit the accused. Lacking such jurisdiction, no matter how fairly and impartially the proceedings may be conducted, no matter how scrupulously the legal requirements and other safeguards applicable to trials of persons charged with the commission of crime may have been complied with, no matter how clearly the respondent’s guilt may appear from the evidence presented in the proceedings, no matter how just the sentence may seem to be, the respondent has not had the trial nor has he been convicted as required by the organic law of this State.
The only concern of this court in this case, as in every other case, is that the decision thereof is in accord with law. If the petitioner, as held by this court and so declared in the majority opinion was tried in, sentenced by and is now imprisoned under an order of commitment issued from a court without such jurisdiction it is our duty to so declare and order the writ of habeas corpus to issue. In arriving at our decision the ultimate question for our consideration is the legality of the imprisonment of the petitioner. In arriving at our decision of that question we are not concerned, except as it may affect the jurisdiction of the trial court, with the magnitude of the offense with which the petitioner was charged. As well said by the Supreme Court of Alabama in Seay v. State, 93 So. (Ala.) 403:
“But the law should prevail, without any reference to the magnitude or brutality of the offense charged. No matter how revolting the accusation, how clear the proof, or how degraded, or even brutal the offender, the Constitution, the law, the very genius of Anglo-American liberty demand a fair and impartial trial.”
Although that declaration of the Alabama court was made with respect to the conduct of a trial within the juris*146diction of the trial court, it is equally applicable to the situation when an accused is tried before a court which is not clothed with jurisdiction over the offense with which he is charged and over his person. No man can have a fair and impartial trial save in a court clothed with such jurisdiction. Such is the law of this State. By undergoing such a trial the accused has not even been in jeopardy. As we said in State v. Boynton, 143 Me. 313; 62 Atl. (2nd) 182, 187:
“Former jeopardy does not exist unless the previous trial was before a court of competent jurisdiction. State v. Slorah, 118 Me. 203, 106 A. 768, 4 A. L. R. 1256; State v. Elden, 41 Me. 165. Trial and conviction or trial and acquittal before a court without jurisdiction do not prevent another prosecution for the same offense.”
Even though it is of the utmost importance to the individual that he be tried and sentenced only by a court of competent jurisdiction, it is of far greater importance to the State itself that this principle of law be scrupulously maintained. Unless so maintained, the fundamental guaranties vouchsafed to us by the Constitution of this State in Article I, Par. 6, that no accused shall “be deprived of his life, liberty, property or privileges but by judgment of his peers or by the law of the land” are but meaningless words. It is a fundamental principle of the law of the land that no man can be tried before, sentenced by, or committed in consequence of a sentence of a court which did not have jurisdiction over the offense with which he is charged as well as over his person. Such is the law of this State.
Before discussing the specific question of whether or not the Superior Court in this case had jurisdiction over the offense with which the petitioner was charged and over his person, it is necessary to examine the basic principles of public policy which underlie the special treatment of juvenile offenders under our statutes.
*147The special treatment of juvenile offenders is not a personal privilege extended to them to enable them to escape the rigors of the punishment for crime meted out to adult offenders. Its purpose is to deflect their feet from the crooked paths of the wayward, to return them to the highway of rectitude, to enable them to conduct themselves properly during minority, and to rehabilitate them so that they may become in manhood the good citizens of the future. Important as this may be to them, it is of far more importance to that society at large which we term the State. The quality of the State of the future depends upon the quality of the citizenry which is turned into its bloodstream. The boy of today is the man of tomorrow. Just as we cannot foretell the ultimate effect of a virulent germ or virus introduced into the bloodstream of the body, so we cannot foresee the effect of turning a criminal-minded citizen into the bloodstream of the body politic. Just as preventive medicine has gone far in assuring the health of the body and has reduced to a minimum scourges which ravished the peoples in the past, it is now hoped that preventive treatment applied to juvenile offenders may reduce the prevalence of crime that in recurrent waves, like the plagues of the past, attacks, undermines, and if not checked will endanger and injure, if not ultimately destroy, the body politic.
Juvenile delinquency, as the term is used in its broadest sense, including crimes committed by juveniles, is one of the crying evils of the day and as such presents a challenge which must be met.
One of the methods devised and employed to meet the challenge of this evil is special treatment of juvenile offenders. Instead of treating them as criminals, the State as parens patriae takes them into protective custody and seeks to cure their criminal tendencies and rehabilitate them, to the end that they may become the good citizens of tomorrow. To enable it, so far as possible, to reach this de*148sired end, exclusive original jurisdiction is conferred upon the municipal courts of this State over certain offenses committed by juveniles under the age of seventeen years. By conferring upon such courts exclusive original jurisdiction of such offenses, the State assures in its own interest as well as in the interest of the juvenile offender, that every juvenile charged with an offense which is within the exclusive original jurisdiction of such court shall be brought in the first instance before such tribunal, and that such court, acting in its capacity as a juvenile court, shall judiciously'determine the disposition that shall be made of such child. Such required judicial action with respect to the disposition of the child includes the determination of whether or not the child is to be treated merely as a juvenile delinquent or whether he is ..to be subjected to criminal prosecution. If it seems best for the interests of the child and for the protection of the community, the juvenile court may hold the child for the grand jury, which body may formally present him for the commission of the offense. R. S., Chap. 133, Sec. 6.
With respect to such offenses as are within the exclusive original jurisdiction of the municipal court acting as a juvenile court, such preliminary determination by it, acting within such jurisdiction is essential, and unless and until it is made, the Superior Court has no jurisdiction to try, sentence or commit a juvenile therefor. A prosecution on an indictment returned to the Superior Court without such preliminary exercise of jurisdiction by the municipal court acting as a juvenile court is the exercise by the Superior Court of original jurisdiction. State v. Elbert, 115 Conn. 589; 162 Atl. 769. See also Ex Parte Albiniano, 6 Atl. (2nd) (R. I.) 554.
It is in recognition of the foregoing principles of public policy that juvenile courts have been established in most, if not all, of our states. To carry that public policy into full effect it has been recognized that it is necessary to *149clothe the juvenile court with exclusive original jurisdiction over such offenses committed by juveniles as in the opinion of the legislature may be treated as juvenile delinquency. This is true whether the juvenile court be a separate court or whether juvenile jurisdiction be conferred upon an already existing court. The offenses over which the exclusive original jurisdiction has been conferred upon juvenile courts varies in the different states which have adopted the system. In some states all crimes, including even those punishable by the infliction of the death penalty, have been so committed to the juvenile court. In others, only those crimes punishable by death or imprisonment for life are excluded, but in almost all states the juvenile courts are given exclusive original jurisdiction over serious felonies. The majority opinion correctly interprets the extent of such jurisdiction conferred upon municipal courts in this State.
Recognizing the broad principles of public policy which underlie the juvenile court acts, the great weight of authority is that the exclusive original jurisdiction conferred upon the juvenile court is a true jurisdiction, as distinguished from a mere privilege extended to the juvenile. That this is so is established by decisions which hold that failure to institute proceedings therein for offenses within the exclusive original jurisdiction of the juvenile court is fatal to a trial, conviction and sentence in the criminal courts. There are many cases in which convictions for very grave offenses have been set aside on appeal, or the convicted juvenile discharged from imprisonment on habeas corpus for failure to take the juvenile before the juvenile court in the first instance, and included are many cases where the age of the juvenile was first raised either on the appeal or in the habeas corpus proceedings. Examples may be found in Clark v. Commonwealth, 256 S. W. (Ky.) 398 (appeal, murder). Talbott v. Commonwealth, 179 S. W. (Ky.) 621 (appeal, malicious wounding and cutting). Watson v. Commonwealth, 57 S. W. (2nd) (Ky.) 39 (appeal, manslaughter). Powell v. State, 141 So. (Ala.) 201 (appeal, *150rape). Sams v. State, 180 S. W. (Tenn.) 173 (carrying concealed weapons — motion in arrest of judgment). Wilson v. State, 82 Pac. (2nd) (Okl.) 308 (appeal, murder). Ex Parte Powell, 120 Pac. (Akl.) 1022 (habeas corpus). Ex Parte Hightower, 165 Pac. (Okl.) 624 (habeas corpus, charge murder, conviction manslaughter). State v. Alexander, 196 Pac. (Okl.) 969 (appeal by State to quashing charge of murder). Ex Parte Parnell, 200 Pac. (Okl.) 456 (habeas corpus, larceny). Ex Parte Alton, 262 Pac. (Okl.) 215 (habeas corpus, larceny). Ex Parte Humphries, 237 Pac. (Okl.) 624 (habeas corpus, burglary). In one of these cases failure of the record on appeal to disclose proceedings in the juvenile court was sufficient ground for sustaining the appeal. Watson v. Commonwealth, supra. In Talbott v. Commonwealth, supra, it was stated “the circuit court has jurisdiction only to indict and try juvenile offenders when they have been transferred to that court in the manner authorized by statute.” (Emphasis mine.)
In Louisiana, the juvenile court has exclusive original jurisdiction over manslaughter but not over murder, The Louisiana court held that the conviction of manslaughter of a juvenile charged with murder and who had not previously been before the juvenile court could not be sustained and amounted only to a verdict of not guilty of murder, and that the child was still subject to proceedings before the juvenile court based upon manslaughter as juvenile delinquency. State v. Dabon, 111 So. (La.) 461. It is to be noted, however, that a contrary result was reached by the Tennessee court in Howland v. State, 268 S. W. (Tenn.) 115, which holds that if a juvenile is properly indicted for murder, that crime not being within the jurisdiction of the juvenile court, the jurisdiction of the criminal court having attached, it attached for all purposes and the juvenile could be convicted of the minor included offense. This question not being before us, no opinion upon it is either expressed or intimated by calling attention to these latter cases.
*151In some states, Illinois for instance, jurisdiction over criminal offenses is specifically conferred upon certain courts by constitutional provision. In such states it is held that the legislature is without power to confer exclusive original jurisdiction over offenses upon juvenile courts. People v. Lattimore, 199 N. E. (Ill.) 275. In the case of Ex Parte Mei, 192 Atl. 80, the New Jersey court held that its constitution prevented original exclusive jurisdiction over the crime of murder being conferred by the legislature upon juvenile courts. The effect of this decision, however, has been modified with respect to crimes other than murder in the later case of State v. Goldberg, 11 Atl. (2nd) (N. J.) 299 affirmed in State v. Goldberg, 17 Atl. (2nd) 173.
Some may question the authority of the foregoing cases on the ground that the statutes in the states where rendered materially differ from our own. It may be objected that in some, if not all of those states, the jurisdiction over juveniles is committed to separate distinct juvenile courts. It may be further objected that in these cases the juvenile had not been taken before the juvenile court prior to the institution of criminal proceedings either by indictment or information filed in the criminal courts. All of these so-called differences may exist, but the fundamental reasoning upon which these cases are decided is not merely that the juvenile had not been taken before the juvenile court, but that there had been no exercise of the exclusive jurisdiction possessed by the juvenile court to determine that the juvenile should be prosecuted as a criminal. As will be hereinafter set forth, it is the exercise of jurisdiction by the juvenile court, not the mere taking of the juvenile before it which is required. This is just as essential in the case of a single court which possesses dual jurisdiction over juveniles and adults, as it is in the case of a separate juvenile court. Also, as will hereinafter be shown, if the juvenile be taken before a court of dual jurisdiction and held for the grand jury, it is essential that the record show that the court exercised its exclusive original jurisdiction and that *152it was in the exercise thereof that it so disposed of the juvenile.
The creation of juvenile courts and the special treatment of juveniles in a manner unknown to the common law has been of gradual development. As stated in the Twelfth Edition of Wharton’s Criminal Law published in 1932, Vol. 1, Page 485:
“These courts have not come quietly into existence without strong opposition both from criminally inclined juveniles and from that class, of ‘conservative’ lawyers whose footsteps are guided entirely by the light of the past, - - by the glimmer of the dying torch of the Dark Ages, who are guided by ‘precedent’ rather than by principle, and are ever found planted in the pathway of civic advancement. But these laws have, in the main, been upheld ; and where not upheld, it was due to defect in drafting the act, and not to the fact that the principle upon which such courts rest is disapproved.”
The attitude towards juvenile courts has gradually changed. As said in the February 1950 issue of the Journal of the American Judicature Society:
“Fifty years ago a revolutionary preventive device was created in the field of crime by the establishment of courts to deal with juvenile delinquents. The full flowering of this device has been at a slow pace, but the hour has at last arrived when the leaders of the profession are beginning to know where we are heading. They not only have sighted the target but are preparing actively to promote what appears to be necessary revisions of statutes, court procedures and practice.”
Maine has adopted the principle of preventive treatment of crime with respect to juveniles, yet in so doing it has also recognized that there are cases where juveniles must be subjected to criminal prosecution. Our juvenile court system and the method of its administration, including the power of municipal courts acting as juvenile courts to hold juveniles for criminal prosecution, is found in R. S., Chap. *153133, Secs. 2 to 7, both inclusive, and the amendments embodied in P. L., 1945, Chap. 63 and P. L., 1947, Chap. 334. It is the duty of this court to see that the provisions of this law are given full effect. To this end we must by our decisions scrupulously enforce the provisions of the juvenile law which require that before a juvenile can be tried as a criminal for an offense within the exclusive original jurisdiction of the municipal court, in its capacity as a juvenile court, that the required proceedings be had in said court, and then only after that court has determined in the manner provided by the law that such criminal proceedings be had. I do not feel that any justice of this court disagrees with this conclusion. The difference of opinion which obtains among the members of the court is not so much with respect to the basic principle which requires action by the municipal court as a condition precedent to the indictment of a juvenile for an offense within its exclusive original jurisdiction, but with respect to what action the municipal court must take if it holds the juvenile for the grand jury, and whether or not it took the required action in this case.
If public policy and legal jurisdictional requirements prevent the prosecution of a juvenile for an offense in the criminal courts, unless and until proceedings have been instituted in the juvenile court possessed of exclusive original jurisdiction over such offense, the same principles of law and the same public policy require that the juvenile court exercise the jurisdiction which it possesses. It is not the mere taking of the juvenile before the juvenile court which is important. A judicial determination by the juvenile court of the disposition to be made of the juvenile delinquent, such determination being made in the exercise of its jurisdiction as such, is what is required. If when a juvenile is brought before the juvenile court charged with an offense within its exclusive original jurisdiction, such court be allowed to refuse to take jurisdiction of the offense and be allowed to proceed in the same manner as in the case of an adult, the spirit, purpose and letter of the juvenile law *154are violated and defeated. There is no difference in legal effect between taking a juvenile before a juvenile court which wrongfully refuses to exercise jurisdiction and an omission to take the juvenile before such court. Neither course is sufficient to enable the Superior Court to exercise jurisdiction over the juvenile and the offense with which he is charged.
It is the exercise of exclusive original jurisdiction by the juvenile court not its refusal to exercise it that confers jurisdiction upon the Superior Court to try a juvenile offender for an offense within the exclusive original jurisdiction of the juvenile court.
Neither in the juvenile court nor in the Superior Court may the juvenile waive the exercise by the juvenile court of its exclusive original jurisdiction. To allow such waiver by the juvenile in either court would be against public policy and the law respecting jurisdiction. As above stated, compliance with the requirements of the juvenile law is jurisdictional in the strict sense of that term. Until such requirements are complied with, the Superior Court has no jurisdiction over the offense or the juvenile. Jurisdiction cannot be acquired by express consent and a waiver can amount to no more. State v. Bonney, 34 Me. 223. Not only sound legal reasoning, but the weight of authority as well, supports this doctrine with respect to waiver in juvenile delinquency cases. Talbott v. Commonwealth, 179 S. W. (Ky.) 621, Ex Parte Parnell, 200 Pac. (Okl.) 456, Ex Parte Albiniano, 6 Atl. (2nd) (R. I.) 554. As said in the latter case where the question was first raised in a habeas corpus proceeding:
“The state also urges that the petitioner waived any right he may have had to attack the validity of the indictments on the ground of his age, because he permitted himself to be arraigned before the superior court on said indictments and voluntarily pleaded thereto, without then raising any question regarding his age. The state’s contention in this *155connection is supported by authority which rests, in substance, on the theory that, while one under a certain age may have a legal right to be proceeded against in a juvenile court when accused of crime, yet such right may be waived, under the proper circumstances, by the conduct and acts of the accused ; and he may consent to stand trial and take sentence in the same manner as an adult. See Fifer v. State, 90 Tex. Cr. R. 282, 234 S. W. 409.
Granting that the above holding as to waiver is the law in certain other jurisdictions, we find ourselves unable to adopt such holding because of our view of the meaning and intent of the statute we now have under consideration. We construe our statute providing for juvenile courts and the care of delinquent children as establishing certain jurisdictional limitations and requirements, and not merely personal rights or privileges in favor of a juvenile, which the latter may waive or not as he desires. Jurisdiction in proceedings such as are involved herein cannot be conferred on the superior court by the conduct of the accused minor, but depends upon the proper construction of the statute as applied to the facts then before the court. We find, therefore, that this contention advanced by the state, that the petitioner by his conduct waived certain rights, has no application in the present case.”
The cases to the contrary in Texas and California are based upon statutory requirements which set forth the manner and time for raising the issue. Because of these requirements the courts in these states held that preliminary proceedings in the juvenile court were a personal privilege of the juvenile and were not strictly jurisdictional requirements and that they could be waived by failure to raise the issue at the time and in the manner provided by statute.
Notwithstanding the fact that R. S., Chap. 133, Sec. 24 provides,
“In all prosecutions before municipal courts or trial justices the respondent may plead not guilty and *156waive a hearing, whereupon the same proceedings shall be had as to sentence and appeal as if there had been a full hearing.”,
this provision of the statute in my opinion does not relieve the municipal court from its duty to exercise the exclusive original jurisdiction which it has over a juvenile offender. It is to be noted that in this case it is stipulated that the judge of the municipal court after plea of not guilty “refused to exercise jurisdiction over the offense” with which the Defendant was charged and rendered judgment of “Probable Cause” and bound the respondent over to the Superior Court, etc. Even if the above statute permitting waiver of hearing before municipal courts applies to juvenile offenders, such waiver does not permit the municipal court to refuse to exercise its exclusive original jurisdiction over the offense and refuse to determine whether or not the juvenile is to be treated as a juvenile delinquent only, or held- for criminal prosecution. To hold otherwise would permit the juvenile not only to waive the hearing but to waive the provisions of the juvenile law.
It must be borne in mind that although this particular case involves a juvenile sixteen years of age charged with manslaughter, the principles of law which we herein decide are applicable to his case may apply to all juveniles between the ages of seven and seventeen years, and will apply to all over twelve years of age and under seventeen, and to all offenses within the exclusive original jurisdiction of the municipal court. If the juvenile court can refuse to take jurisdiction or refuse to exercise its jurisdiction in the case of this boy, it can do the same thing in the case of a seven year old or a child of any of those intermediate ages, in which age group so many of the juvenile delinquents are found. It is to eliminate possibility of such action so at variance with the purposes of the act that it must clearly appear that, in holding the juvenile for the grand jury, the municipal court actually exercised its exclusive original *157jurisdiction before we can sustain a sentence imposed by the Superior Court.
I agree with the majority opinion that manslaughter is one of the offenses within the exclusive original jurisdiction of the municipal court as a juvenile court. I also agree with the majority opinion that the Superior Court was without jurisdiction to try, convict, sentence or commit the petitioner because proper proceedings to hold the petitioner for the grand jury to enable his prosecution for the crime of manslaughter in the Superior Court were not had in the municipal court. The reasons for this latter conclusion are as follows:
The Superior Court is a statutory court. It has only such jurisdiction as is conferred upon it by statute. The jurisdiction of the Superior Court over offenses is conferred by R. S., Chap. 132, Sec. 5, which is as follows:
“The superior court shall have original jurisdiction exclusive or concurrent, of all offenses except those of which the original exclusive jurisdiction is conferred by law on municipal courts and trial justices, and appellate jurisdiction of these.”
Nor is this jurisdiction of the Superior Court enlarged by R. S., Chap. 94, Sec. 5, as amended by P. L., 1947, Chap. 16 which is its general grant of jurisdiction, because the jurisdiction of the Supreme Judicial Court over offenses prior to January 1, 1930 was limited by a statute similar to that limiting the jurisdiction of the Superior Court above quoted.
The petitioner being less than seventeen years of age and being charged with manslaughter, the municipal court, acting in its capacity as a juvenile court, had exclusive original jurisdiction over the petitioner and the offense with which he was charged. Therefore, the only way that the Superior Court could acquire jurisdiction over the offense with which the petitioner was charged was under the provisions of the so-called juvenile law and especially R. S., Chap. 133, Sec. *1586. Under this section the Superior Court could only acquire jurisdiction by an appeal or by an indictment returned by the grand jury in pursuance of and subsequent to the holding for the grand jury by the municipal court under authority conferred upon it by Section 6 supra.
The distinction between holding a juvenile and a non-juvenile for the grand jury for felony and the basis thereof is as follows:
In the case of the non-juvenile charged with a felony, the municipal court has no jurisdiction whatever over the offense with which the respondent is charged. R. S., Chap. 133, Sec. 2, Par. 1. It cannot make any final disposition with respect to the offense nor render any judgment either of innocence or of guilt. The non-juvenile respondent, if a felony be charged, is before it not for trial but for examination. R. S., Chap. 134, Sec. 9. It can find that the crime has been committed by someone and that there is probable cause to charge the respondent with its commission. If so, it causes him to be held for trial by requiring him to recognize to await action of the grand jury and answer to any indictment that may be found. R. S., Chap. 134, Sec. 13. If it fails to find either that the crime has been committed or that there is probable cause to charge the respondent, the respondent is discharged. R. S., Chap. 134, Sec. 13. This, however, is not to the slightest degree a determination of the guilt or innocence of the accused. The magistrate or municipal court has no jurisdiction over the offense, and if the respondent is charged or discharged he has never been in jeopardy. If discharged, he may be arrested on a new warrant and brought before the same magistrate again, and held for the grand jury. Even if charged, should the grand jury fail to indict, he may be again arrested on a warrant and brought before the same or another magistrate and again held for the grand jury. However, he is held for the grand jury because the magistrate has no jurisdiction over the offense and cannot make a final, disposition of the case.
*159On the other hand, when a juvenile is charged with, a felony within the exclusive original jurisdiction of the municipal court, it does have jurisdiction to hear and try the case. It can make a final determination of the case, subject to the right of appeal. It can find the juvenile guilty of juvenile delinquency, and can then deal with the juvenile in any of the methods prescribed in Section 6 of the juvenile law. R. S., Chap. 133, Sec. 6. The constitutionality of the grant of such authority over offenses committed by juveniles is assured, even though the offense, if committed by a non-juvenile, would be a felony. The only adjudication or judgment of guilt that the municipal court can make is that the child was guilty of juvenile delinquency. All power to punish the child as a criminal by imprisonment, either in jail, reformatory or prison, is expressly negatived. R. S., Chap. 133, Secs. 2 and 6. Juvenile delinquency is not a crime. Section 2 supra. None of the dispositions that the municipal court can make of the juvenile amount to punishment for crime. However, when the municipal court deals with a juvenile charged with any offense over which it has exclusive original jurisdiction, it has to determine whether he is to be ultimately dealt with as a juvenile delinquent or a criminal. If, however, the municipal court determines that the best interests of the juvenile and the safety of the community require a criminal prosecution of the juvenile, it may hold him for the grand jury.
If it so determines it does so not because it had no jurisdiction over the offense, not because it could not make any final disposition of the cause, but because it has exercised the discretion of judgment as to disposition of the cause with which it was invested by Section 6 of the statute.
In holding the juvenile for the grand jury, the juvenile court does not act as a mere examining magistrate as in the case of a non-juvenile. In so doing it acts as a court clothed with jurisdiction over the offense and the juvenile authorized to make disposition of the juvenile. Holding him for *160the grand jury is only one of the dispositions it may make of the juvenile. Such action by the juvenile court is no less a disposition of the juvenile in the exercise of its jurisdiction because it contemplates other and further action may be taken by the grand jury and the Superior Court.
When the municipal court holds the juvenile for the grand jury, unless it exercises the jurisdiction with which it has been invested and holds for the grand jury as an act of discretion under Section 6 the legal effect of such action is just the same as though the juvenile had never been before the court.
If the municipal court expressly ruled that it had no exclusive original jurisdiction over the crime of manslaughter committed by the juvenile and held for the grand jury, it would take that action because under its interpretation, except to discharge it could take no other action. It would fail entirely to exercise the judgment of choice with which it is invested in juvenile cases, and it would not' hold for the grand jury because that course of action seemed for the best interests of the child and the safety of the community as provided under Section 6 of the statute.
Under such an interpretation of the statute, the municipal court would do just exactly what the record and the stipulation show that it did do in this case. It would refuse to exercise jurisdiction over the offense with which the juvenile was charged, and find Probable Cause and hold for trial.
It is common knowledge in the profession and it is well known to those of us who have served on the Superior Court subsequent to the enactment of P. L., 1947, Chap. 334, that there has been a lack of uniformity in the interpretation of the phrase “the punishment for which may be imprisonment for any term of years” by municipal courts. Some municipal courts have erroneously held that their exclusive original jurisdiction did not extend to offenses which might *161be punishable by imprisonment for two years or more. Such municipal courts have therefore felt that the law required them to hold every juvenile charged with such an offense for the grand jury as the only disposition which they could make of a child so charged other than ordering him discharged. Such offenses include nearly all if not all felonies. It was to settle this question that in January, 1948, I reported the case of State v. Fraizer, 144 Me. 383; 64 Atl. (2nd) 179, from the Superior Court to the Law Court. However, upon a careful analysis of the indictment by this court it was found that the crime charged therein was within the provision of R. S., Chap. 118, Sec. 2 authorizing punishment by imprisonment “for any term of years” and not within that provision of said section which provided for imprisonment “for not less than one year nor more than ten years.” As the question was not in issue and as any discussion thereof would have been obiter dictum, the case was disposed of by per curiam.
The majority opinion in this case settles this question of interpretation. Under the record and stipulation in this case it may well be that the Municipal Court of Portland erroneously interpreted the extent of its jurisdiction and held the petitioner for the grand jury because it felt that it was the only course of action it could legally take in the premises. The record alone is consistent with such action. The stipulation established that it refused, either for that or some other reason, to exercise jurisdiction over the offense with which the petitioner was charged. When dealing with juvenile offenders charged with offenses within the exclusive original jurisdiction of the municipal court, both the municipal court and the Superior Court are courts of limited jurisdiction. The jurisdiction of the Superior Court depends upon the precedent exercise by the municipal court of its exclusive original jurisdiction. It is for this reason that the record of the municipal court must show either by express declaration or by necessary implication that the municipal court has exercised its jurisdiction as a *162juvenile court and that in the exercise thereof and of the discretion with which it is invested by Sec. 6 of R. S., Chap. 133, held the juvenile for the grand jury, before the jurisdiction of the Superior Court can attach.
I interpret the record and the stipulation as establishing that the Municipal Court of Portland in this case never exercised its exclusive original jurisdiction over the petitioner or the offense with which he was charged. The record, though not to be commended and open to criticism, if it is sufficient for any purpose, is consistent with such action. The stipulation, however, taken together with this record is conclusive with respect thereto. The statute gives the court exclusive original jurisdiction over the offense. The stipulation is that the “Judge of said Municipal Court then refused to exercise jurisdiction over the offense with which the Defendant was charged and rendered judgment of ‘Probable Cause.’ ” To my mind this cannot mean that he exercised the jurisdiction with which he was invested, that he considered whether he would treat the accused as a juvenile delinquent and make a final disposition of the case and the juvenile, decided against that course and as an exercise of the discretion as to disposal of the case vested in him by Section 6, held the child for the grand jury because it seemed for the best interests of the child and the safety of the community. To my mind the record and the stipulation show that he refused to exercise this jurisdiction. The child was not properly held for the grand jury, and when the Superior Court tried and sentenced upon the indictment, it was exercising original jurisdiction over the offense, a jurisdiction that it did not possess.
To construe the provisions of Section 6 relating to holding a juvenile for the grand jury, as conferring upon the municipal court the unfettered right to hold a juvenile for the grand jury as in the case of an adult would in my opinion destroy the effectiveness of the juvenile law. It would open the door for municipal courts which wrongfully *163construed the extent of their jurisdiction as a juvenile court as not covering any felonies to hold for the grand jury without consideration of the case as a juvenile case.
To my mind it is of the utmost importance not only to the juvenile but to the State itself that cases within the exclusive original jurisdiction of the municipal court as a juvenile court be first considered as juvenile cases and a legal determination made by that court whether it will finally dispose of them as such or, within the discretion with which it is vested by Section 6 of the juvenile law, hold them for the grand jury. In my opinion such action upon the part of the juvenile court is a prerequisite to an indictment by the grand jury which is cognizable by the Superior Court and to trial and sentence in that court upon an indictment. In my opinion this is the intent of the amendment in P. L,, 1943, Chap. 322, which struck out the prohibition against holding for the grand jury “unless the offense is aggravated or the child is of a vicious or unruly disposition,” and which expressly included holding for the grand jury among the dispositions that could be made as seemed to the court for the best interests of the child and for the protection of the community. The deleted prohibition had been in the law since its enactment in 1931. It had been interpreted by this court as excepting cases within its terms from the exclusive original jurisdiction of the municipal court. State v. Rand and Henry, 132 Me. 246. The amendment not only struck out the prohibition but it deleted the provision of the prior law which the court held excepted cases within its terms from the exclusive original jurisdiction of municipal courts. By doing this and giving the court authority to hold for the grand jury as it did and in the clause where it did, it is my opinion that the amendment of 1943 made holding for the grand jury one of the dispositions of the juvenile which the court could, in the exercise of its exclusive original jurisdiction, make of the juvenile.
*164In my opinion the record of the municipal court holding for the grand jury should be such that it shows either expressly or by necessary implication that it has taken the required action, and that it has held the child for the grand jury in the exercise of the discretion conferred upon it by Section 6 of the juvenile law and not under the authority conferred upon it by Section 13 of Chapter 134 as in. non-juvenile cases.
It may be argued that as the municipal court, either acting under R. S., Chap. 133, Sec. 6 or under R. S., Chap. 134, Sec. 13, may hold for the grand jury, it makes no difference which route the case takes to arrive at the same destination and that this is a distinction without a difference. This argument is based upon a misconception of the functions of the municipal court and its jurisdiction when acting as a juvenile court. The confusion is due to the fact that in this State a single municipal court acts in a dual capacity and exercises a dual jurisdiction. If we had a separate juvenile court which had exclusive original jurisdiction over offenses by juveniles, it would be perfectly clear that that court would have the exclusive right to exercise such jurisdiction over the juvenile. If such court were given the authority to deal with the juvenile as a juvenile offender in the manner provided in Section 6, it would have to choose the disposition it made of the case from those authorized by that section. Such choice would have to be made in the exercise of its judicial discretion. Such choice would necessarily involve a consideration by the court of the various possible dispositions which could be made and the selection of the one to be carried out. It would only be in the exercise of this discretion of choice that the court could hold for the grand jury. It is the right of both the State and the juvenile that the court exercise this discretion and that the disposition actually made be chosen from among the various dispositions that it could make. It is only by this exercise of its discretion of choice that the court exercises the jurisdiction conferred upon it.
*165This is also true of our municipal court with its dual jurisdiction. When a juvenile is brought before it for an offense over which it has exclusive original jurisdiction, it must exercise that jurisdiction. If it would hold such child for the grand jury, it must exercise the discretion as to disposition which has been conferred upon it by Section 6. If it holds for the grand jury it can only do so acting within its jurisdiction and by virtue of the authority conferred by Section 6 as one of the dispositions it is authorized to make of the delinquent. If it fail or refuse to exercise its exclusive original jurisdiction it necessarily fails and refuses to exercise the discretion of disposition conferred upon it by Section 6. If it refuses to exercise jurisdiction over the offense and finds probable cause and holds the juvenile for the grand jury, as in this case, the only construction that can be placed upon such action is that it assumed to do so under the provisions of R. S., Chap. 134, Sec. 13. The legal effect of such action is exactly the same as though there were a separate juvenile court, a failure to take the juvenile before it, or if he were taken before it that court refused to act in the premises, and then without action by the juvenile court a prosecution was commenced by indictment.
As heretofore shown herein, in my opinion the record and stipulation in this case not only fail to show that the municipal court did exercise its jurisdiction as a juvenile court but show that it did not, and that it held the juvenile for the grand jury in the belief that such was the only action it could take in the premises. In my opinion the Municipal Court of Portland in this case never exercised its exclusive original jurisdiction over the offense nor over the petitioner. It treated the juvenile throughout as though it had no exclusive original jurisdiction over the offense or the right to treat the juvenile as a juvenile delinquent. It is my further opinion that in this case the juvenile was improperly held for the grand jury. A holding for the grand jury in accord with Section 6 is a condition precedent to jurisdiction in the Superior Court. This being true, the Su*166perior Court exercised original jurisdiction in trying and sentencing the juvenile. See State v. Elbert, supra. The commitment under such sentence is therefore illegal and there is no justification for the detention of the petitioner and the writ of habeas corpus should issue.
I realize that there are contingencies and situations which may arise in the administration of the present juvenile law which are not specifically or even by implication provided for therein. If so, it is for the Legislature not the Court to make the necessary revision of the law. To interpret a law in such a manner as to either read provisions into it which it does not contain or to read out of it those which it does contain is to legislate not to interpret. It may be possible, though not probable, that either lack of necessary action or improper action taken in the municipal court may enable some juveniles to escape well merited punishment. However that may be, in an attempt to avoid such result, this court should not by construction of the law permit a municipal court, by its refusal or neglect to exercise its exclusive original jurisdiction, to defeat the purpose of the law itself. It is further my opinion that the reasons which I have stated for my conclusions at length are implicit in the majority opinion of the court and I therefore concur therein.