January 30, 1945, a complaint was filed in the Juvenile Court of Clearwater County by Oscar W. Gilmore, Probation Officer of that county, against Marlin Hewlett, Monty Newell, Donald Anderson, Tommy Johnson and Guy Helm, minors under the age of eighteen years. The complaint charged these minors were "engaged in breaking and entering buildings belonging to others, namely, the store of the Oud Pharmacy, the store of J.J. Johnson, known as the Corner Store; the store of Wells Grocery store and the store of Holmes Hardware store; and take and remove therefrom, and did take and remove from cars and other places property not their own." The complaint further charged the minors associated with thieves and "persons not of good moral character," and "did habitually wander the streets and highways at night and in the nighttime without being on any lawful business," and that each of said minors "is deemed a juvenile delinquent person."
Thereafter a hearing was had in the Juvenile Court on the charge set forth in the complaint and on the first day *Page 700 of February, 1945, Monty Newell was "found guilty of having burglarized two stores at Peck, Nez Perce County, Idaho on January 20, 1945; twice broke and entered Oud's Pharmacy in Orofino, Idaho once December 6, 1944 and once in January, 1945; that on January 13, 1945 he robbed a man at Ahsahka, Idaho; broke into one car at Ahsaka, Idaho on October 28, 1944, and five cars at Peck, Idaho January 20, 1945 and of taking one express package from the railroad station in Orofino, Idaho in summer of 1944"; Marlin Hewlett was "found guilty of two robberies of the Corner Store in Orofino, Idaho once on January 1, 1945 and once prior thereto; Oud Pharmacy in Orofino, Idaho once December 6, 1944 and once in January, 1945; two stores in Peck, Idaho on January 20, 1945 and robbing a man at Ahsahka, Idaho on January 13, 1945 and five cars at Peck, Idaho on January 20, 1945"; Tommy Johnson was "found guilty of robbery of two stores at Peck, Idaho on January 20, 1945 and being present at the robbery of five cars at the same place and time"; Guy Helm was "found guilty of two robberies of the Oud Pharmacy once some time in the summer of 1944; and was the lookout for an attempted robbery of Oud Pharmacy in January of 1945; and knew of the robbery of the cars in Ahsahka and of the man and knew of the robbery at Peck"; Donald Anderson was "found guilty of stealing from five cars at Peck, Idaho on January 20, 1945; robbery of two stores in Peck, Idaho on January 20, 1945; robbery Oud Pharmacy in Orofino, Idaho, summer of 1944 and an attempt in January of 1945."
Thereafter and on the 9th day of February, 1945, these minors were "committed to the Industrial Training School of Idaho, at St. Anthony, until they reach the age of twenty-one years, or are sooner released from said school under the regulations thereof."
February 12, 1945, the parents jointly and severally appealed to the District Court of Clearwater County from the "decree" of the said Juvenile Court, committing the minors to the State Industrial Training School. And on the same day the minors and their parents filed an application in the District Court of Clearwater County for a writ of review. February 12, 1945, the application was granted and a writ of review issued. March 13, 1945, the District Court affirmed the judgment of the Juvenile Court "that *Page 701 the said juveniles are, and each of them is, delinquent be, and the same here is, affirmed; that portion of the judgment committing said delinquents, and each of them, to the Industrial Training School be, and the same hereby is, adjudged a nullity and to be held for naught, and the matter is to be remanded to the probate court, sitting as a juvenile court, for such further proceedings as that court shall be advised are necessary and proper in the premises."
Thereafter, the parents, as well as the minors, appealed from that part of the judgment of the District Court adjudging the said minors were delinquents. On the 24th day of April, 1945, Hon. E.B. Steele, respondent Judge of the Juvenile Court of Clearwater County, cross-appealed "from that part of the judgment shown on page one (1) thereof overruling the demurrer to the application for writ of review and from that part of the judgment, and the whole thereof, which refused to quash the writ of review and the giving of judgment in any form upon such writ of review."
These appeals require an inquiry into the power and jurisdiction of a juvenile court. To determine the powers and jurisdiction of that court, it is necessary to examine and construe the pertinent provisions of Title 31, Chapt. 13, I.C.A., "Correction of Delinquent Children."
Section 31-1303, I.C.A., provides:
"All proceedings under this chapter shall be by sworn information to be filed by the prosecuting attorney or a probation officer of the county in which the child proceeded against resides. Such information shall set forth, in a generalway, the facts constituting any alleged delinquency, and also that such child is without the care or protection of a parent or guardian, or that any parent or guardian (naming him), is neglecting such child, or that such child is a juvenile disorderly person within the meaning of section 31-1311 of the Idaho Code. When the information states sufficient facts to apprise the court that a probable delinquency exists, or that the child proceeded against is a juvenile disorderly person, all irregularities or defects of form therein must be disregarded and all technical pleas or objections thereto must be summarily disposed of by the court, and the court's ruling thereon shall be final. * * *" (Emphasis added.) *Page 702
Section 31-1304. "Issuance of warrant. — Imprisonment to be avoided. Upon the filing of an information under this chapter, a warrant or capias may issue as in other cases, but no incarceration of the child proceeded against thereunder shall be made or had, unless, in the opinion of the judge of the court, or, in the absence of the judge from the county seat, then in the opinion of the sheriff of the county, it shall be necessary to insure its attendance in court at such times as shall be required. In order to avoid such incarceration, if practicable, it shall be the duty of the sheriff of the county, or his deputy or representative, to serve a notice of the proceedings upon at least one parent of the child, if living and known, or its legal guardian, or if his or her whereabouts or residence is not known, or if neither parent or guardian shall be in this state, then some relative living in the county, if any there be whose whereabouts are known, and such judge or sheriff may accept the verbal or written promise of such person so notified, or of any other proper person, to be responsible for the presence of such child at the hearing in such case, or at any other time to which the same may be adjourned or continued by the court. * * *"
Section 31-1305:
"When any child under the age of eighteen years is arrested, with or without warrant, except when the charge against suchchild is a felony, such child shall, instead of being taken before a justice of the peace or police magistrate, be taken directly before the probate court; or if the child is taken before a justice of the peace or police magistrate, upon complaint sworn out in such court or for any other reason, it shall be the duty of such justice of the peace or police magistrate to transfer the case to such probate court, and of the officers having the child in charge, to take the child before that court, and in any such case the court may proceed to hear and dispose of the case in the same manner as if such child had been brought before the court upon information originally filed as herein provided." (Emphasis added).
Section 31-1306:
"It shall be the duty of the court, upon any child being brought before him upon any such information, to make such investigation as may be necessary to ascertain the *Page 703 degree of delinquency, or the facts tending to show such child is a juvenile disorderly person. * * * If the court shall be of the opinion, after making such investigation, that the child proceeded against should be committed in the manner provided for in Section 31-1308 of the Idaho Code, it shall then be the duty of the court to make an order in said cause fixing the time and place for a hearing to be had upon the information, which shall not be less than five days nor more than fifteen days from the time of making the order * * *"
Section 31-1307:
"It shall be the duty of the county attorney to appear at the hearing on any information filed under this chapter, and he shall, if the probate judge request, assist the court at the hearing. * * * The court shall determine, without the intervention of a jury, all issues of law and of fact raised upon the hearing. At the conclusion of the hearing or within forty-eight hours thereafter, the court shall enter a written judgment in said cause, and record the same in the records of the court, and the court in such judgment shall make findings of what facts have been proven or not proved. If the court shall adjudge that the child proceeded against is a delinquent within the meaning of section 31-1301, the particular delinquency or delinquencies as found by the court shall be set forth in said judgment; or if the court, in its judgment, find such child is a juvenile disorderly person, the court shall set forth in said judgment wherein such child has been disorderly within the meaning and intent of section 31-1311. * * *"
Section 31-1308:
"In any case of a delinquent child coming under the provisions of this chapter, the court may continue the hearing from time to time, and may commit the child to the care of the sheriff, and may allow said child to remain in its own home, subject to the sheriff, such child to report to the court or sheriff as often as may be required, and subject to be returned to the court for further proceedings whenever such action may appear necessary, or the court may cause the child to be placed in a suitable family home, subject to the friendly supervision of the sheriff, and the further order of the court; or it may authorize the child to be boarded out in some suitable family home, in case *Page 704 provision is made by voluntary contribution or otherwise for the payment of the board of such child, until suitable provision be made for the child in a home without such payment, or the court may commit such child to the Idaho industrial training school; or the court may commit the child to any institution within the county, incorporated under the laws of this state, that may care for children or to any state institution which may now or hereafter be established for the care of boys or girls. * * *"
Section 31-1301:
"Delinquent Child Defined. — This chapter shall apply only to children under the age of eighteen years not inmates of a state institution, or any institution incorporated under the laws of the state, for the care and correction of delinquent children. * * * The words 'delinquent child' shall include any child under the age of eighteen years who violates any law of this state, or any city or village ordinance; or who is incorrigible or who knowingly associates with thieves, vicious or immoral persons; or who is growing up in idleness or crime, or who knowingly visits or enters a house of ill-fame; or who knowingly patronizes or visits any policy shop or place where gambling device is, or shall be operated; or who patronizes or visits any poolroom or bucket shop, or who wanders the streets in the nighttime without being on any lawful business or occupation; or who habitually wanders about any railroad yard or tracks, or who jumps or hooks on to any moving train, or enters any car or engine without lawful authority; or who habitually uses vile, obscene, vulgar, profane or indecent language, or is guilty of immoral conduct in public places or about any schoolhouse. Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and shall be proceeded against as such in the manner hereinbefore provided. * * *"
Section 31-1311:
"Juvenile Disorderly Person Defined. — Every child within the provisions of this chapter who does not attend school, as provided in section 1018 of the Compiled Statutes of Idaho, or who is in attendance at any public, private or parochial school, and is vicious, incorrigible or immoral in conduct, or who is an habitual truant from school, or who habitually wanders about the streets and public places during *Page 705 school hours without lawful occupation or employment, or who habitually wanders about the streets in the nighttime, having no employment or lawful occupation, shall be deemed a juvenile disorderly person, and be subject to the provisions of this chapter."
With this rather complete picture before us, the purpose of the legislature becomes clear: to correct and reform delinquent children, and also and as well to provide for the care, training and protection of neglected children permitted by their parents to "wander about the streets in the nighttime having no lawful occupation or employment," or a child "who habitually wanders about any railroad yard or tracks or who jumps or hooks on to any moving train." Two classes of children come within the provisions of the statute — the delinquent and the neglected. To the end these children may be built into honest, industrious, useful citizens every precaution is taken to protect them from bad or corrupting influences. When arrested, the child cannot be incarcerated, unless necessary. Furthermore, to avoid any necessity for that it is made the duty of the sheriff to at once notify the parents, if living or know, "or the court may cause the child to be placed in a suitable family home" and "continue the hearing from time to time," "subject to be returned to the court for further proceedings whenever such action may appear necessary." When proper care, training and protection of the child from evil influences cannot be found either in the home of its parents or other "suitable family home," or private institution, the child can be committed to the Industrial Training School. That brings us to the decisive question presented by the record: did the legislature intend to confer on a juvenile court either civil or criminal jurisdiction to commit felons, under the age of eighteen years, to the Industrial Training School, upon conviction, in a juvenile court, of the commission of a felony, or felonies?
Bearing in mind a neglected child, one who, for instance, simply because of the neglect of his parents, is permitted to "wander about the streets in the nighttime having no lawful occupation or employment" as well as the child "who habitually wanders about any railroad yard or tracks, or who jumps or hooks onto any moving train," can be, and are, committed to the Industrial Training School, and that the purpose of so committing them is to reform and build *Page 706 them into honest, upright citizens, could the legislature have intended to vest a juvenile court with either civil or criminal jurisdiction to also commit to the same school, thugs and felons, even though under the age of eighteen years, where they would necessarily come into daily, intimate contact with numerous children whose greatest crime would be that their parents neglected them and they, by reason thereof, wandered about the streets at night and jumped on moving trains? And further, would the legislature having taken the utmost care, as above pointed out, to protect all the children, delinquent, as well as neglected, from criminal influence, from the very moment of their arrest, then nullify all such safeguards and practically defeat the work of building the children into honest and industrious citizens, by vesting a juvenile court with either civil or criminal jurisdiction to commit felons to the very same school (as in the case at bar), where, upon arrival at the school, they would at once become the daily associates and schoolmates of the simply neglected and abandoned children?
Moreover, and as will have been observed, the legislature expressly provided (Sec. 31-1305, supra) when a child under the age of eighteen years is arrested, it must be taken directly before a juvenile court for investigation, except when the charge against the child is a felony. That should make it clear the legislature did not intend to place felons, even though under eighteen, in the same class with neglected children, and thus subject, as fully as, for instance, neglected children, to be committed to the Industrial Training School. But it is insisted the word "charge" used by the legislature in Section 31-1305, supra, and not the offense proven (in this case numerous grave felonies), determines the question in favor of the jurisdiction of the juvenile court. In other words, that because the legislature used the word "charge" in the clause (Sec. 31-1305, supra), reading: "except when the charge against such child is a felony," that that shows the legislature intended to vest juvenile courts with jurisdiction to commit felons (no matter how hardened or experienced, just so they are under the age of eighteen) to the Industrial Training School. That the legislature had no such intention seems clear from other provisions of the same section (31-1305, supra) to the effect that when a child under the age of eighteen is arrested it "shall, instead of being taken before a justice *Page 707 of the peace or police magistrate, be taken directly before the probate court (juvenile court)"; and, further, if a delinquent child is taken before a justice of the peace or police magistrate instead of before a juvenile court, "it shall be the duty of such justice of the peace or police magistrate to transfer the case to such probate court (juvenile court), and of the officers having the child in charge, to take the child before that court, and in any such case the court may proceed to hear and dispose of the case in the same manner as if such child had been brought before the (juvenile) court upon information originally filed as herein provided." Justices of the peace and police magistrates have no jurisdiction to commit children to the Industrial Training School, but justices and police magistrates are vested with jurisdiction to hold preliminary examinations of persons charged with felonies and to bind them over to the district court to answer — jurisdiction which juvenile courts are not vested with. Can anything be plainer, then, that what the legislature intended to provide, and does provide, is this: that when a child under eighteen is arrested, the arresting officer shall take the child directly before a juvenile court, except when the charge is a felony, and that if by any chance a delinquent child is taken before a justice of the peace or police magistrate by an arresting officer, the justice of the peace or police magistrate, as the case may be, shall immediately transfer the case to the juvenile court. It will be noticed that neither a justice of the peace or police magistrate is either authorized or directed to transfer a case against a child to a juvenile court where the charge against the child is a felony, from which it follows that in all such cases (felonies) a justice of the peace or police magistrate shall retain jurisdiction. Furthermore, to except, as that word is used in the above quoted exception clause, is to exclude (32 C.J.S., p. 1152), not include. To give the word, except, any other interpretation than that, nullifies the exception clause. If the legislature had not intended to except or exclude, it would not have incorporated the exception clause in the section.
Furthermore, the legislature expressly vested district courts with jurisdiction to determine the question as to when and under what circumstances it would be proper and advisable to commit a felon under eighteen to the Industrial Training School, by the enactment of Sec. 32-3101, I.C.A. The legislature, it appears therefrom, was not unmindful *Page 708 of the fact that occasionally a case would arise where a boy or girl convicted of the commission of a felony, if surrounded by appropriate influences and given proper training, might be saved from a life of crime; hence, vested the district court with jurisdiction to decide when and under what circumstances a felon under eighteen should be committed to the school. Under Sec. 32-3101, supra, it is provided that when a boy or girl between the ages of eight and eighteen is "found guilty of any felony except murder or manslaughter, the court or judge may, if in his opinion the accused is a proper subject therefor, instead of entering judgment, cause an order to be entered for such boy or girl to be sent to the Idaho Industrial Training School, in pursuance of the provisions of this chapter, and all acts amendatory thereof." It will be noted that even a district court, a court with broad, general jurisdiction, vested with power in proper cases, to sentence felons of all ages to death, is prohibited by Sec. 32-3101, supra, except in special cases, from committing felons to the Industrial Training School, even though under eighteen. Surely, the legislature did not intend to vest a juvenile court with greater jurisdiction in the premises than a district court. It is my view that in determining whether the legislature did, or did not, intend to vest juvenile courts with either civil or criminal jurisdiction to commit felons under eighteen to the Industrial Training School, the decisive question is: did the legislature intend to subject delinquent children (children, while delinquent, who have, nevertheless, not yet become felons), to the dangerous, corrupting, infectious influence of felons, even though, as in the case at bar, under eighteen? The legislature should be credited with having more common sense than that.
Furthermore, the statute does not, in my opinion, clothe a juvenile court with discretion to take two courses, one for delinquency, the other as for a felony. It, of course, has jurisdiction of delinquent children, but it has no jurisdiction whatever of felons of any age. Section 31-1306, supra, vests a juvenile court with jurisdiction to fully investigate into each case of alleged delinquency to ascertain "the facts tending to show such child is a juvenile disorderly person." The section then provides that "if the court shall be of the opinion, after making such investigation, that the child proceeded against should be committed in the manner provided for in Section 31-1308 of the Idaho Code, *Page 709 it shall then be the duty of the court to make an order in said cause fixing the time and place for the hearing to be had upon the information, which shall not be less than five days nor more than fifteen days from the time of making the order. * * *"
Section 31-1308, supra, relied upon to support the contention the juvenile court has discretion to proceed against a delinquent as for a felony, not only does not give that court such discretion, but to the contrary, prescribes an entirely different course. That section (31-1308) provides, as hereinbefore pointed out, that:
"In any case of a delinquent child coming under the provision of this chapter, the court may continue the hearing from time to time, and may commit the child to the care of the sheriff, and may allow said child to remain in its own home, subject to the sheriff, such child to report to the court or sheriff as often as may be required, and subject to be returned to the court for further proceedings whenever such action may appear necessary, or the court may cause the child to be placed in a suitable family home, subject to the friendly supervision of the sheriff, and the further order of the court; or it may authorize the child to be boarded out in some suitable family home, in case provision is made by voluntary contribution or otherwise for the payment of the board of such child, until suitable provision be made for the child in a home without such payment, or the court may commit such child to the Idaho industrial training school; or the court may commit the child to any institution within the county, incorporated under the laws of this state, that may care for children or to any state institution which may now or hereafter be established for the care of boys or girls. * * *"
Therefore I conclude the "decree" of the juvenile court committing appellants, under eighteen, to the Industrial Training School should be vacated and set aside, and the action dismissed. And I am authorized to say Mr. Justice Miller concurs in this dissenting opinion. *Page 710