Morton v. Hayden

Dubord, J.

(Dissenting opinion.)

I am unable to agree with my associates. My opinion is that the petitioner was illegally sentenced and is entitled to be enlarged from his confinement in the reformatory for men.

The petitioner was between the ages of 16 and 17 years when he was arraigned in the municipal court, sitting as a juvenile court, upon the charge of having feloniously uttered and published as true a false, forged and counterfeit instrument. Upon trial, he was found guilty of juvenile *19delinquency and committed to the reformatory for men. He filed a petition for a writ of habeas corpus alleging that he is unlawfully deprived of his liberty. The matter was referred to this Court upon an agreed statement of facts.

The issue is whether the petitioner, who is more than 16 years of age, but less than 17 years of age, may be legally sentenced and committed to the reformatory for men by a judge of a municipal court, for juvenile delinquency.

The pertinent parts of the statutes with which we are concerned are as follows:

Section 2, Chapter 146, R. S. 1954.

“Judges of municipal courts within their respective jurisdictions shall have exclusive original jurisdiction over all offenses, except for a crime, the punishment for which may be imprisonment for life or for any term of years, committed by children under the age of 17 years, and when so exercising said jurisdiction shall be known as juvenile courts. Any adjudication or judgment under the provisions of sections U to 7, inclusive, shall be that the child was guilty of juvenile delinquency, and no such adjudication or judgment shall be deemed to constitute a conviction for crime." (Emphasis supplied.)

Section 6, Chapter 146, R. S. 1954, as amended by Section 2, Chapter 211, P. L. 1955.

“A municipal court may place children under the age of 17 years under the supervision, care and control of a probation officer or an agent of the department of health and welfare or may order the child to be placed in a suitable family home subject to the supervision of a probation officer or the department of health and welfare or may commit such child to the department of health and welfare or make such other disposition as may seem best for the interests of the child and for the protection of the community including holding such child for *20the grand jury or commitment of such child to the Pownal State School upon certification of 2 physicians who are graduates of some legally organized medical college and have practiced 3 years in this state, that such child is mentally defective and that his or her mental age is not greater than % of subject’s life age nor under 3 years, or to the state school for boys or state school for girls; but no boy shall be committed to the state school for boys who is under the age of 11 years and no girl shall be committed to the state school for girls who is under the age of 9 years and no municipal court shall sentence a child under the age of 17 years to jail or prison; any child or his next friend or guardian may appeal to the superior court in the same county in the same manner as in criminal appeals, and the court may accept the personal recognizance of such child, next friend or guardian, and said superior court may either affirm such sentence or order of commitment or make such other disposition of the case as may be for the best interests of such child and for the peace and welfare of the community.”

The 1955 amendment increased the minimum age for commitment to the state school for boys from nine to eleven years.

Section 66, Chapter 27, R. S. 1954, as amended by Section 1, Chapter 318, P. L. 1955.

“The state shall maintain a reformatory in which all males over the age of 16 years, except as provided in section 80, and under the age of 36 years who have been convicted of or have pleaded guilty to crime in the courts of this state or of the United States, and who have been duly sentenced and removed thereto, shall be imprisoned and detained in accordance with the sentences or orders of said courts and the rules and regulations of said reformatory.” (Emphasis supplied.)

The 1955 amendment inserted the words “except as provided in section 80” in the first sentence.

*21Section 67, Chapter 27, R. S. 1954, as amended by Section 2, Chapter 318, P. L. 1955.

“When a male over the age of 16 years, except as provided in section 80, and under the age of 36 years is convicted by any court or trial justice having jurisdiction of the offense, of an offense punishable by imprisonment in the state prison, or in any county jail or in any house of correction, such court or trial justice may order his commitment to the reformatory for men, or sentence him to any other punishment provided by law for the same offense;---. When a male is ordered committed to the reformatory for men, the court or trial justice ordering the commitment shall not prescribe the limit thereof, but no male committed to the reformatory as aforesaid shall be held for more than 3 years.”

The 1955 amendment inserted the words “except as provided in section 80” near the beginning of the first sentence.

Section 77, Chapter 27, R. S. 1954, as amended by Section 1, Chapter 211, P. L. 1955. Section 77 was formerly Chapter 58, P. L. 1919.

“When a boy between the ages of 9 and 17 years is convicted before any court having jurisdiction of an offense punishable by imprisonment in the state prison, not for life, or in the county jail or in the house of correction, such court may order his commitment to the state school for boys or sentence him to the punishment provided by law for the same offense. If to such school, the commitment shall be conditioned that if such boy is not received or kept there for the full term of his minority, unless sooner discharged by the department as provided in section 80, or released on probation as provided in section 82, he shall then suffer the punishment provided by law, as aforesaid, as ordered by the court;---. The record in the event of conviction in all such cases shall be that the accused was convicted of juvenile delinquency,

*22Section 80, Chapter 27, R. S. 1954, as amended by Section 3, Chapter 318, P. L. 1955.

“When a boy is ordered to be committed to said school and the department deems it inexpedient to receive him, or his continuance in the school is deemed injurious to its management and discipline, it shall certify the same upon the mittimus by which he is held, and the mittimus and boy shall be delivered to any proper officer, who shall forthwith commit said boy to the jail, house of correction or state prison, or if he has attained the age of 15 years, to the state reformatory for men according to his sentence. The department may discharge any boy as reformed; and may authorize the superintendent, under such rules as it prescribes, to refuse to receive boys ordered to be committed to said school, and his certificate thereof shall be as effectual as its own.”

Section 87, Chapter 27, R. S. 1954.

“If, in the opinion of the department, any boy, under the guardianship of the state school for boys or who may hereafter be committed thereto, who has attained the age of 16 years, is incorrigible, the superintendent may certify the same on the original mittimus and have it signed by the commissioner or some official duly authorized by him; whereupon said boy shall be transferred from said state school for boys to the reformatory for men, together with the original mittimus and certificate thereon. It shall be the duty of the officers of the reformatory for men to receive any boy so transferred and the remainder of the original commitment shall be executed at the reformatory for men.”

In my opinion all of the powers vested in the municipal court, sitting as a juvenile court, are to be found in Section 6, Chapter 146, R. S. 1954, as amended by Section 2, Chapter 211, P. L. 1955.

Now let us analyze what these powers are.

*23If a child under the age of 17 years appears before a municipal court and is found guilty of juvenile delinquency, what may a judge of the municipal court do? Section 6, gives him the following powers:

(1) He may place children under the age of 17 years under the supervision, care and control of a probation officer;

(2) He may place such child under the supervision, care and control of an agent of the department of health and welfare;

(3) He may order the child to be placed in a suitable family home, subject to the supervision of the probation officer, or the department of health and welfare;

(4) He may commit such child to the department of health and welfare.

Then follow additional powers set forth after the statement, “or make such other disposition as may seem best for the interests of the child and for the protection of the community including,”

(1) Holding such child for the grand jury, or

(2) Committing such child to Pownal State School (under certain requirements) or

(3) Committing such child to the state school for boys or state school for girls.

In the foregoing outline lie all of the powers reposed in the municipal court. The first four provisions, of course, are in the nature of probation and do not contemplate confinement in any institution. Assuming that the judge of the municipal court, upon trial of a juvenile, decides that these first four provisions should not be used, then he is given power to do certain things, listed in the statute, if he con-*24eludes that the interests of the child and the protection of the community require some other procedure. Nowhere is there given power to commit to the reformatory for men.

I propose now to discuss the development of the laws relating to juveniles, but before doing so, I call particular attention to the provisions of Section 66, Chapter 27, R. S. 1954, to the effect that there can be imprisoned and detained in the reformatory for men only males over the age of 16 years and under the age of 36 years who have been convicted of or pleaded guilty to crime.

Section 2, Chapter 146, specifically provides that no adjudication that a child is guilty of juvenile delinquency shall be deemed to constitute a conviction for crime.

Consequently, it is my position that with the exception of a transfer of incorrigibles under the provisions of Section 87, Chapter 27, R. S. 1954, and possible confinement under the provisions of Section 80, Chapter 27, R. S. 1954, a person who has not been convicted of crime cannot be detained as a prisoner in the reformatory for men.

At this point it may be well to mention the fact that Section 87, Chapter 27, specifically provides that it shall be the duty of the officers of the reformatory for men to receive any child so transferred, as an incorrigible, the remainder of the original commitment to be executed at the reformatory for men. Moreover, Section 66, Chapter 27, R. S. 1954, was amended, as previously pointed out, in 1955, to provide for Section 80, Chapter 27, R. S. 1954. If it had been the intention of the legislature to authorize a commitment to the reformatory for men by a municipal court judge, under the provisions of Section 6, Chapter 146, it would have been easy for the legislature to say so, as it did in the matter of Section 80.

The majority opinion recognizes that Section 66, Chapter 27, on its face, prohibits the commitment of a juvenile found *25guilty of juvenile delinquency to the reformatory for men, because such a juvenile has not been, convicted of crime. Here is what the majority opinion says:

“R. S. 1954, c. 27, § 66, the statute authorizing the reformatory for men, as amended, taken from its context of statutes and read literally would appear to eliminate the possibility of legal commitment to, or confinement of the petitioner in, the reformatory.”

If I understand the majority opinion correctly, it is to the effect that when Section 6, Chapter 146, was amended in 1951, by striking out the word “reformatory” Section 66, Chapter 27, was amended by implication to provide for the detention of juveniles between the ages of 16 years and 17 years. Quoting from the majority opinion:

“Very arguably may it be urged that the act of 1951 (P. L. 1951, c. 84) by clear implication also amended the reformatory creation statute which is now being construed.”

In my opinion this is going far afield in the interpretation of a statute. This Court can interpret laws, but has no power to enact them. Farris, Attorney General v. Goss, 143 Me. 227, 230. More about this later.

A study of the history of our juvenile laws shows that they have grown in a confused sort of way. While Chapter 58, P. L. 1919 is entitled “Act of Juvenile Delinquency” and might give the impression that this was the first act having something to do with juveniles, the fact of the matter is that this section merely amended a prior statute which was Section 3, Chapter 144, R. S. 1916. Chapter 58, P. L. 1919 amended Section 3, Chapter 144, R. S. 1916, by adding a clause authorizing the exclusion of the general public from hearings and for the first time appears a clause providing that:

*26“The record in the event of conviction in all such cases shall be that the accused was convicted of juvenile delinquency.”

This provision to the effect that an adjudication or judgment in the juvenile court shall not be deemed to constitute a conviction for crime is found in § 2, Chapter 146, R. S. 1954.

The pertinent part of Chapter 58, P. L. 1919 insofar as any power to sentence is concerned, reads as follows:

“When a boy between the ages of eight and sixteen years is convicted before any court or trial justice having jurisdiction of the offense, of an offense punishable by imprisonment in the state prison, not for life, or in the county jail, or in the house of correction, such court or justice may order his commitment to the state school for boys or sentence Mm to the punishment provided by law for the same offense.” (Emphasis supplied.)

The foregoing Chapter is the forerunner of Section 77, Chapter 27, R. S. 1954.

It appears that the first act giving municipal courts exclusive original jurisdiction of offenses committed by juveniles was enacted in 1931, and is Chapter 241, P. L. 1931. The pertinent section is Section 1, Chapter 241, P. L. 1931, now Section 2, Chapter 146, R. S. 1954, as amended.

In this Chapter 241, P. L. 1931, (forerunner of Section 6, Chapter 146) we find the powers of the municipal courts defined as follows:

“Sec. 4. Powers of the court. The court may place children under the supervision, care and control of a probation officer or an agent of the state board of children’s guardians or may order the child to be placed in a suitable family home subject to the supervisions of a probation officer or the state board of children’s guardians or may commit such child to the state board of children’s guard*27ians or make such other disposition as may seem best for the interests of the child and for the protection of the community including commitment of such child to the state school for boys or state school for girls.
“Unless the offense is aggravated or the child is of a vicious or unruly disposition no court shall sentence or commit a child to jail, reformatory, or prison, or hold such child for the grand jury.”

This is the first time we find the paragraph:

“Unless the offense is aggravated or the child is of a vicious or unruly disposition no court shall sentence or commit a child to jail, reformatory, or prison, or hold such child for the grand jury.”

It is of importance to note that this is the first section in which some power is given after the expression:

“Or make such other disposition as may seem best for the interests of the child and for the protection of the community.”

The fact that there is a paragraph providing for commitment to jail, reformatory or prison, when the offense is aggravated or the child is of a vicious or unruly disposition would seem to indicate that the clause, “as may seem best for the interests of the child and the protection of the community” does not relate in any manner to the power to sentence a child to jail, reformatory or prison.

Apparently the foregoing section remained in force until changed by § 5b, Chapter 118, P. L. of 1933, which read as follows:

“A municipal court may place children under the age of 15 years under the supervision, care and control of a probation officer or an agent of the department of health and welfare, or may order the child to be placed in a suitable family home, subject to the supervisions of the probation officer or the department of health and welfare, or may *28commit such child to the department of health and welfare, or make such other disposition as may seem best for the interests of the child and for the protection of the community, including commitment of such child to the state school for boys or state school for girls.”

Then follows the next sentence:

“Unless the offense is aggravated or the child is of a vicious or unruly disposition, no court shall sentence or commit a child under the age of 15 years to jail, reformatory, or prison, or hold such child for the grand jury.”

That portion of the act giving exclusive jurisdiction to municipal courts was amended by Chapter 18, P. L. 1933, increasing the age to 17 years, but no change was made in § 5b, giving apparent power to sentence a child under the age of 15 years, when the offense was aggravated or the child was of a vicious or unruly disposition.

By Chapter 197, P. L. 1937, § 5b, was amended by increasing the age to 17 years both in relation to the general power of municipal courts and also in relation to the age cited in the last paragraph pertaining to aggravated offenses.

Again in this section we find the sentence permitting the sentencing of a child when he is vicious or unruly or when the offense is aggravated, as the last sentence in the section, and in no way related to the clause “make such other disposition as may seem best, etc.”

This section remained in force until the amendment of 1941 which is § 2, Chapter 245, P. L. of 1941.

In this amendment the paragraph about power to sentence when the offense is aggravated and the child is of a vicious or unruly disposition remains, but after the clause “or make such other disposition as may seem best for the *29interests of the child and for the protection of the community” are added the powers to commit to Pownal State School, and the power to commit to the state school for boys or state school for girls remains.

In 1943 by § 2, Chapter 322, P. L. 1943, the section was amended by striking out the paragraph relating to the power to sentence for aggravated offenses and when the child is vicious or unruly, and there was also added to the powers after the clause “or make such other disposition, etc.” the power to hold for the grand jury. And for the first time we find the clause “no municipal court shall sentence a child under the age of 17 years to jail, reformatory, or prison.”

It seems clear that from here on there is no power to commit to jail, reformatory, or prison and it is my opinion that this clause was put in merely to emphasize that juveniles should be dealt with other than sending them to jail, reformatory or prison. By this amendment of 1943 all power to sentence to any institutions except Pownal, or state school for boys or girls was eliminated entirely.

The next amendment was in 1945, Chapter 63, P. L. 1945, and is of no great importance.

In 1947 by § 6, Chapter 334, an amendment was added providing power to appeal.

In 1951, § 4, Chapter 84, the section was further amended by striking out the word “reformatory.”

While it is now argued that the striking of this word gave implied power to sentence to the reformatory, my opinion is that all power was taken away by the 1943 amendment and never given back.

In 1955, § 66, Chapter 27, R. S. 1954, was amended by inserting the words “except as provided in § 80.”

*30Section 80 is the one which purports to provide for the commitment of boys, who have attained the age of 15 years, to the reformatory for men, when it is considered inexpedient to receive such boys in the state school.

Section 80 contemplates a sentence in the alternative, apparently based on Section 77. I have cited these two sections viz., § 77 and § 80, not because they have any particular bearing on the issue before us, but to stress the fact that the legislature saw fit to amend § 67 by specific reference to § 80, and could have taken similar action, if it had been the legislative intent to provide for detention of juveniles in the reformatory for men; and also to point out the apparent contradiction in the authority relating to the sentencing- of juveniles. Section 77 (formerly Chapter 58, P. L. 1919) after providing for commitments to the state school for boys, also authorizes “the punishment provided by law for the same offense.”

The powers set forth in § 77 are contradictory to those in § 6, Chapter 146, under which Morton was committed. Section 6, Chapter 146 was first enacted in 1931 and is antedated by § 77. As a result, it may well be that § 77, as well as § 80, are repealed by implication.

The majority opinion recognizes that there was a hiatus between the years 1943 and 1951 when there was no power to sentence a juvenile to the reformatory for men. The majority opinion says:

“From 1937 to 1943 vicious and unruly boys over the age of 16 years could have been so committed. From 1951 to the present such a commitment for all boys -under 17 years down the range of the juvenile scale has been permissible.”

It was in 1943, of course, that the legislature enacted a section to the effect that no child under the age of 17 years could be sentenced to jail, reformatory or prison; and in *311951 the statute was amended by striking out the word “reformatory.”

What of the period between 1943 and 1951 ? If there was no power to commit between these years of 1943 to 1951, what law has been enacted to authorize such commitment since then ?

The majority opinion says that § 66, Chapter 27, was amended by implication and would read into the section words equivalent to the following:

“And juveniles over the age of 16 years found guilty of juvenile delinquency.”

As previously stated, we interpret laws and do not enact them.

The cases cited in the majority opinion in support of its interpretation of the statute are not in point. As a matter of fact not one case upholds the premise intended to be supported.

The case of State v. Koliche, 143 Me. 281, involved a statute forbidding the sale of intoxicating liquor by a licensee to a minor under the age of 18 years. Respondent contended that criminal intent to sell to such a minor must be proven as a necessary element of the offense. The Court said the question presented was one of statutory construction and ruled that intent is not a necessary element of the offense.

The case of Craughwell et als. v. Mousam River Trust Co. 113 Me. 531, involves a statute relating to dissolution of corporations.

In State v. Cavalluzzi, 113 Me. 41, the state had failed to charge in the indictment that the respondent was a woman in accordance with the provisions of the pertinent statute. The Court ruled that the absence of the word “woman” was not fatal to the indictment.

*32In the case of State v. J. P. Bass Company, 104 Me. 288, the Court, in interpreting a statute ruled that the statute in question forbidding the publication of advertisements of the sale of intoxicating liquors included advertisements of intoxicating liquors sold without the state.

In Rackliff v. Greenbush, 93 Me. 99, the Court interpreted a statute involving the right to the recovery of burial expenses from towns:

In State v. Frederickson, 101 Me. 37, the Court ruled that cider, referred to in one section of a statute, was included in a list of intoxicating liquors described in another section.

The cases of Gould v. Bangor & Piscataquis Railroad, 82 Me. 122, and Cotton v. Wiscasset, Waterville & Farmington Railroad Company, 98 Me. 511, are concerned with the interpretation of statutes relating to statutory fences.

As a matter of fact, one of the cases cited supports the position taken in this opinion. In State v. Wallace, 102 Me. 229, 232, the Court said:

“It is a recognized rule that a penal statute is to be construed strictly in favor of the rights of a respondent. A statutory offense cannot be created by inference or implication nor can the effect of a penal statute be extended beyond the plain meaning of the language used.”

The following statement to be found in 128 Me. 298, seems to be quite applicable:

“The current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation.”

I lend my hearty. approval to the sentiments expressed by my associates relating to the noteworthy reforms adopted *33and developed since 1919 for the moral and social regeneration of criminal malefactors. However, I can see no connection between the theory of reformation and illegal confinement in a penal institution.

The majority opinion cites with approval the case of Gosselin Petitioner, 141 Me. 412. At the time Mrs. Gosselin was committed to the reformatory for women, § 53, Chapter 23, R. S. 1944 was in effect, and this section provided that “when a woman is sentenced to the reformatory for women, the court or trial justice imposing the sentence shall not fix the term of such confinement unless it be for a term of more than 3 years.” This section went on to recite that the duration of the commitment including time spent on parole should not exceed 3 years except where the maximum term specified by law for the crime for which the offender was sentenced shall exceed that period. Presumably, the section speaks of sentences in excess of 3 years because women sentenced to definite terms for felonies serve their time in the reformatory for women.

At the time of the Gosselin Case, the section relating to the reformatory for men was Section 66, Chapter 23, R. S. 1944, which provided for an indeterminate sentence for various offenses, regardless of the length of the sentence, and this section provided that no male committed for a felony could be held for more than 5 years and in case of misdemeanors not more than 2 years.

Mrs. Gosselin brought a petition for habeas corpus on the ground that she was denied the equal protection of the law in that a woman could be deprived of her liberty for 3 years and a man could be deprived of his liberty for only 2 years for the same offense.

The issue upon which the action was brought was never decided by this Court, but an ingenuous solution was found by a ruling that confinement in a reformatory was not *34strictly imprisonment; that a person sent to a reformatory was sent there to be reformed and rehabilitated, and that if in the judgment of the legislature, it took longer to reform a woman than a man, such was within its legislative prerogative.

See Page 421, Gosselin Petitioner for Writ of Habeas Corpus, supra:

“Whether the members of this Court individually would have considered that less time would be required to accomplish the reform of male first offenders than would be requisite for other males or for females or that two years would be sufficient for more hardened males although the reform of women would require three years is not important. Our power and authority collectively is to decide no more than that legislative decision is reasonable or unreasonable.”

In 1951, § 66, Chapter 23, was amended by Chapter 84, P. L. 1951 (now § 67, Chapter 27, R. S. 1954) which now provides in part:

“When a male is ordered committed to the reformatory for men, the court or trial justice ordering the commitment shall not prescribe the limit thereof, but no male committed to the reformatory as aforesaid shall be held for more than 3 years.” (Emphasis supplied.)

It will be seen that by virtue of this amendment, this section was put in accord with the section relating to women, the difference between the two previous sections being the basis for the Gosselin claim. So, apparently, in 1951, the legislature in its wisdom, concluded that it would take just as long to reform a man as it would a woman.

The decision in the Gosselin case is to the effect that confinement in a reformatory, is for the purpose of reformation, and it is not to be deemed as imprisonment in the ordinary sense. Such a conclusion is without merit. A per*35son committed to a reformatory is deprived of his liberty, and no person, man, woman, or child can be incarcerated in a penal institution unless such imprisonment is authorized by law. In this case Morton has a right to demand that his sentence be based upon a properly enacted law and not upon an implication, which itself is vague and ambiguous. When the liberty of a person is at stake, no court should have to resort to mind reading to find out what the law is.

Another question relating to the legality of Morton’s commitment is also raised as to the length of his term. How long can he be kept in the reformatory?

The old section for parole from the reformatory for men was Section 71, Chapter 27, K. S. 1954, and this section is specifically repealed by Section 11, Chapter 387, P. L. of 1957.

Section 13, Chapter 27A as enacted by Chapter 387, P. L. 1957, gives the provision regarding eligibility for parole from the reformatory for men.

This section provides that an inmate becomes eligible for parole when all of the following conditions are fulfilled:

I. After the expiration of 6 months, if convicted of a misdemeanor, and after the expiration of 1 year, if convicted of a felony.

II. Upon recommendation of the Superintendent to the Board of Parole when the conduct of the inmate justifies it, and,

III. When some suitable employment has been secured for him in advance.

Note that this contemplates that the inmate is serving a sentence for a misdemeanor or a felony, and nowhere is provision made for the parole of a juvenile delinquent.

*36Section 14, Chapter 27A, provides for the parole from a state school, but a juvenile held in a reformatory is not afforded the protection of any laws relating to parole.

Referring again to Section 87, Chapter 27, which relates to the transfer of incorrigibles, this section provides:

“It shall be the duty of the officers of the reformatory for men to receive any boy so transferred and the remainder of the original commitment shall be executed at the reformatory for men.”

That being true, a boy so transferred, although in the reformatory, would actually be serving a state school sentence, and presumably would be subject to the rules of the state school regarding parole.

The very last paragraph in the Gosselin Case, 141 Me. 422, is significant upon the question of parole. There the Court said:

“The statute under which she is held carries appropriate provision for her parole, etc.”

Another very serious and important objection arises to Morton’s commitment.

Section 67, Chapter 27, is the only statute which authorizes commitment to the reformatory for men. It reads in part as follows:

“When a male over the age of 16 years and under the age of 36 years is convicted by any court or trial justice having jurisdiction of the offense, of an offense punishable by imprisonment in the state prison, or in the county jail, or in any house of correction, such court or trial justice may order his commitment to the reformatory for men.”

A sentence imposed under authority of the preceding section is an indeterminate one. It presupposes that the candidate for the reformatory stands convicted of an offense punishable in the state prison or in the county jail.

*37It will be recalled that it was in 1943 when the legislature struck out the paragraph relating to aggravated offenses by juveniles and provided that “no municipal court shall sentence a child under the age of 17 years to jail, reformatory or prison.”

Now bearing in mind that a sentence to the reformatory is based on Section 67, Chapter 27, a respondent standing before a municipal court can be sent to the reformatory only if he is subject to a jail offense. However, since 1943, no child under the age of 17 years is subject to a sentence to jail or prison, so that the condition necessary, under § 67, for the imposition of an alternative or indeterminate sentence in the reformatory does not exist.

To repeat in different words, if a boy between the age of 16 and 17 years is not subject to the imposition of a jail sentence by the municipal court, he cannot be given an alternative or indeterminate sentence in the reformatory; and striking out the word “reformatory” in the statute involved, added nothing at all to the power of the municipal court.

This is another way of emphasizing the point, that the clause “or make such other disposition as may seem best for the interests of the child and for the protection of the community” has nothing to do with sentencing, other than to the state schools for boys or girls, because the same section which speaks of other dispositions is met by the sentence that no municipal court shall sentence a child under the age of 17 years to jail.

By the prohibition contained in § 6, Chapter 146, a boy between the ages of 16 and 17 cannot be sentenced to jail by a municipal court. It, therefore, follows that there is no power in the municipal court to impose an alternative sentence to the reformatory for men.

To briefly recapitulate, it is my opinion that powers of the municipal court in juvenile cases are derived solely from *38Section 6, Chapter 146, and that nowhere in this section is authority granted to sentence Morton to the reformatory for men.

Moreover, in the reformatory can be detained only persons who have been convicted of a crime, and Morton, by force of the statute, was not convicted of a crime.

The only way Morton could be sent to the reformatory legally would be to first send him to the state school for boys, and then transfer him to the reformatory for men, as an incorrigible, assuming that he were in that category, under the provisions of § 87, Chapter 27, R. S. 1954.

My opinion is that the petitioner was illegally sentenced and committed; that his imprisonment is unlawful and that he should be discharged from custody.