dissenting.
No statute of this state indicates whether a defendant who it is claimed maltreated a child should be indicted for the crime of contributing to the delinquency of the minor (OES 167.210) or should be prosecuted for causing the child to become a dependent (OES 167.215). In the absence of legislation upon that subject a grand jury which is about to return an indictment against an accused would have no direction from the legislature which would enable it to determine whether the defendant’s wrongful act should *580be treated as (1) the crime of contributing to the delinquency of a child and thus subject him possibly to a term in the penitentiary or (2) the crime of causing the child’s dependency and thereby subject him to a penalty for a misdemeanor. Since courts and grand juries have no legislative powers they can not complete this incomplete statute so as to render it workable. It is true that parts of the statute which I will presently cite describe wrongful conduct which many would recognize as capable of rendering a child delinquent and other wrongful conduct which it is commonly assumed may cause a child to become a dependent, but those parts do not indicate that conduct of the one kind should be treated as tending to the child’s delinquency and conduct of the other kind as causing the child’s dependency. Further, and this is also important, our statute lists other conduct difficult of classification. In any event, reasonable individuals could classify it variously. Since the choice is legislative in nature and not judicial, the absence of a statute signifying the legislature’s choice renders our law incomplete. The omission is accompanied with grave consequences. One who is found guilty of contributing to the delinquency of a minor may receive a penalty of as much as five years in the penitentiary whereas if the grand jury, based upon the same action detrimental to the minor, had returned an indictment for causing the child to become a dependent, no penitentiary sentence could have been imposed. Since our law fails to specify the conduct which should be deemed by a grand jury as rendering a minor a delinquent and that which should be treated as rendering him a dependent, neither a court nor a grand jury can know whether an accused should be indicted for the one crime or for the other. State v. Pirkey, 203 Or 697, *581281 P2d 698, in speaking of a similar situation, declared :
* * So far.as the statute is concerned, the same identical act, under the same circumstances, may constitute a felonious crime when committed by one person, and a misdemeanor when committed by another. * * *”
That act was declared violative of Article I, § 20, Oregon Constitution, and of the Fourteenth Amendment of the United States Constitution. The act was more complete than the one now before us. The present act is also violative of Oregon Constitution, Article IV, § 21.
Oregon Laws 1959, chapter 432, page 719, gave to us the comprehensive act known as the juvenile code. Section 66, page 739, of that act (now OES 419.101) reads as follows:
“As used in OES 419.105 to 419.140, unless the context requires otherwise:
“(1) ‘Child delinquency/ ‘delinquent child/ ‘child dependency’ and ‘dependent child’ means a person under 18 years of age whose conduct or condition is such as to fall within the provisions of subsections (1) to (5) of section 2 of this 1959 Act.”
Section 2 of the act, page 720, now OES 419.476, reads as follows:
‘‘The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
“(1) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; or
“(2) WTio is beyond the control of his parents or other person having his custody; or
*582“(3) Whose behavior or condition is such as to endanger his own welfare or the welfare of others; or
“(4) Whose parents or other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or
“(5) Who has run away from Ms home.”
Section 17 of the 1959 act (page 725 Oregon Laws 1959), codified as ORS 419.507, provides:
“A child found to be witMn the jurisdiction of the court as provided in subsection (1) of ORS 419,476, shall be made a ward of the court. In connection with such wardsMp, the court may:”
At that point the section enumerates the various measures which the court may employ for the good of the cMld.
ORS 419.502, prior to its repeal by Oregon Laws 1959, chapter 432, section 59, enumerated the attributes of unsocial behavior wMch if exMbited by a child rendered the latter, in the purview of ORS 419.502, a “delinquent cMld.” ORS 419.102, prior to its repeal by Oregon Laws 1959, chapter 432, section 65, specified the conditions and circumstances affecting a child wMch rendered it a “dependent child.” Before the repeal of those two sections of our laws a grand jury, which had before it an adult who was accused of maltreating a cMld, could determine from those two acts whether the accused’s wrongful conduct constituted the crime of contributing to the delinquency of the child or the crime of causing the cMld to become dependent. The 1959 act, after repealing ORS 419.502 and ORS 419.102, gave us nothing wMch applied the *583appellation of “delinquent” to the one group of unfortunate children and “dependent” to the other but, as we have seen, united both groups of children in ORS 419.101. I have quoted the latter section of our laws. It will be recalled that after defining the term “agency” it says:
“(2) ‘Child delinquency/ ‘delinquent child/ ‘child dependency’ and ‘dependent child’ mean a person under 18 years of age whose conduct or condition is such as to fall within the provisions of paragraphs (a) to (e) of subsection (1) of ORS 419.476.”
The appropriate part of ORS 419.476 is quoted in a preceding paragraph of this opinion. By reverting to that quotation it will be observed that although ORS 419.476 enumerates various conduct in which unfortunate children may engage it does not state whether an adult who induced the child to so conduct itself should be prosecuted for contributing to the delinquency of a minor or for causing the child to become a dependent. For example, ORS 419.476, in enumerating the unfortunate children, includes a child “who has run away from his home,” but it does not state that an adult who induced the child to take that course should be dealt with under ORS 167.210 which creates the crime of contributing to the delinquency of a minor or under ORS 167.215 which authorizes the prosecution of one who has caused a child to become a dependent.
The above statutes seemingly present no difficulties when the court is concerned only with the rehabilitation of the child; but trouble arises when a grand jury or a court is concerned with an adult who is accused of having maltreated a child. The present sections of our laws which create the crimes of contributing to the delinquency of a child (ORS 167.210) and of *584causing a child to become a dependent child (ORS 167.215) do not themselves define the two crimes, but refer, without giving citations, to sections of our laws which they assume contain the needed definitions. But, we have seen that the sections which, up to 1959, gave the needed definitions were repealed in that year.
ORS 167.210 says: “When a child is a delinquent child as defined by any statute of this state, any person responsible for * * * shall be punished * * ORS 167.215 says: “Any person who wilfully does any act which causes * * * any child * * * to become a dependent child, as defined by any statute of this state * * * shall be punished * * No definitions- are set forth.
Our present statutes render it impossible for a court to say whether a child “who has run away from his home” [see ORS 419.476 (l)(e)] should be deemed a delinquent or a dependent child. Likewise, difficulties confront any one who undertakes to determine whether the legislature intended 'that a child “whose behavior or condition is such as to endanger his own welfare or the welfare of others” [ORS 419.476 (1) (c)] should be deemed a delinquent or a dependent child. Reasonable men could differ upon the interpretation and application of that provision. If an indictment charges that a defendant induced a child to run away from home and thereby contributed to -its delinquency, ORS 167.210 authorizes a penalty as great as five years in the penitentiary in the event of a verdict of guilty. But if another indictment for a similar act charges that defendant with causing dependency, ORS 167.215 treats the crime as a misdemeanor subject only to a fine and county jail sentence.
Let’s suppose that both defendants in the conjectured cases were found guilty and appealed to this *585court. How could this court determine from anything that the legislature has enacted that the grand jury which indicted the one for contributing to the delinquency of a minor caught the legislative conception of the crime more accurately or less accurately than the other grand jury which indicted for causing dependency. In short, how is a court or a grand jury to discern, from anything that the legislature has written, whether a defendant who induces a child to run away from home subjects himself to a potential penitentiary sentence and that therefore he should be indicted not for causing dependency but for the crime of contributing to delinquency?
It is clear that after the repeal of OHS 419.502 and OKS 419.102 the circuit court can not determine from anything that the legislature has enacted that a child who is mentioned in an indictment which charges the defendant with inducing the child to take any of the courses enumerated in OKS 419.476 is a delinquent or a dependent. Even with the help of a statutory definition a given set of circumstances sometimes presents difficulties to the court in determining whether a child is a dependent or something else. An illustration is State v. Visser, 249 Iowa 768, 88 NW2d 925. In that case the complaint charged that two sisters who were 16 and 11 years of age and who lived with their widowed mother were dependents. According to the decision,
“There is no specific showing in the record that the mother of these two girls has physically abused them * * * nor does it appear that they have lacked suitable food and clothing.”
Nevertheless, the court held that the children were dependents. It emphasized the unwholesome moral condition under which they lived and found that the *586statute conferred upon the court discretion in the application of the definition.
We see from the foregoing that ORS 167.210 creates the crime of contributing to the delinquency of a minor and ORS 167.215 creates the crime of causing the dependency of a minor, but neither section specifies the wrongful action of the adult which shall be deemed contributory to delinquency and that which shall be regarded as causing dependency. ORS 419.476 sets forth categories of children over whom the juvenile court has jurisdiction; but it does not say that the children who are in this category are delinquents and those in that one are dependents. Nor does any other section of our laws take that indispensable step.
Under our act as it is now written, with the definitions previously given by ORS 419.502 and ORS 419.102 deleted, it is impossible for a grand jury to know whether an accused whose conduct was of the type suggested by subdivisions such as (a), (c) and (e) of ORS 419.476 (1) should be indicted upon a charge of contributing to the delinquency of the child or upon a charge of causing the minor’s dependency. As we have seen, if the defendant is indicted for rendering the child a delinquent, a penitentiary sentence may follow; whereas, if the wrongful act of the accused is entered in the indictment as nothing more than rendering the child a dependent, the accused can not be dealt with on the basis of a felony. In the absence of anything in the statute prescribing what conduct on the part of the accused should be deemed contributing to the child’s delinquency and that which should be deemed as rendering the child a dependent, the act must be held incomplete and unworkable. Since the courts have no legislative power they can not usurp the function of restoring to the act ORS 419.502 and *587ORS 419.102. Moreover, no attempt in that direction should be made, for it is plain that the legislature repealed those sections. We can not overrule the legislature. We have no power to do so directly and should not attempt it obliquely.
The majority, unless I am mistaken, recognize that none of our laws designate the conduct of an adult which shall be deemed contributory to a child’s delinquency and that which shall be regarded as causing its dependency. In the face of a situation of that character no help can be obtained from ORS 419.509 to which the majority reach out for help. In the first place, to seek help from ORS 419.509 is virtually a confession that the statutes which govern this indictment are incomplete. The simple truth is that ORS 419.509 does not complete the statutes which authorize indictments for contributing to the delinquency and causing the dependency of minors. Further, to endeavor to construe criminal statutes by resort to legislation of a purely administrative character is unprecedented. Various other of our statutes, in addition to ORS 419.509, designate the place where prisoners shall be confined both before trial and after conviction. None of them have ever been held to throw any light upon the meaning of criminal legislation.
In State v. Brantley, 201 Or 637, 271 P2d 668, the circuit court, in recognizing that the statute which the grand jury had invoked against the defendant was incomplete, sustained a demurrer to the indictment. This court affirmed, and in so doing said:
“ ‘A valid criminal law must definitely show with reasonable certainty what acts or omissions the lawmaking body intended to prohibit and punish’ : 1 Cyclopedia of Criminal Law, Brill, § 62.”
I dissent.