
    In re Cooper.
    (Decided February 14, 1938.)
    
      Mr. John W. Cowell, for petitioner.
    
      Mr. Robert J. Paul, city prosecutor, and Mr. James F. Conway, Jr., for the city of Cincinnati.
    
      Mr. Michael G. Heints, amicus curiae.
    
   Hamilton, J.

This is an original action in habeas corpus, whereby the petitioner seeks release from custody under a judgment of conviction in the Municipal Court of Cincinnati. The conviction was for a violation of Section 12970, General Code, in failing to provide his child with food, etc.

The claim is that Section 12970, General Code, is repealed by Section 1639-62, General Code, a section of the new Juvenile Code, which provides;

“That existing Sections 1639 to 1683-1, inclusive, of the General Code, and all other sections or parts of sections of the General Code inconsistent herewith, he, and the same are hereby repealed.”

The writer is of opinion that the clause “all other sections or parts of sections” has reference only to prior existing sections of the Juvenile Code, and does not have reference to the Criminal Code of Ohio, of which Section 12970 is a part. The new Juvenile Code is a codification of the former juvenile laws, and, as stated in Section 1639-59: “The purpose of this chapter is to secure for each child under its jurisdiction such care,” etc.

Section 12970, General Code, is a criminal statute. As was said by this court in the ease of State, ex rel. Brown, v. Hoffman, 23 Ohio App., 348, 155 N. E., 499: “The Juvenile Court does not deal with crimes. Its jurisdiction is limited to delinquent, neglected, or dependent minors, under the age of 18 years.”

In considering the question before us, the declared purpose of the juvenile chapter of the code must be borne in mind. The child is the whole consideration.

Section 12970, General Code, is a section dealing with adult misdemeanors, and provides punishment for criminal offenses.

It will be noted that the jurisdiction of the Juvenile Court is expressly limited to juvenile work “under this chapter.” It has not general jurisdiction under the act. See Sections 1639-7, 1639-8, 1639-9, 1639-10, 1639-11, 1639-12 and 1639-16, General Code.

The act does give jurisdiction to the Juvenile Court to punish persons having the custody of a child or who owe the duty of support. This is for the purpose of enforcing performance of that duty. While the Juvenile Court is given original jurisdiction in such cases on complaint, that jurisdiction is not exclusive. See sub-section 5 of Section 1639-16, General Code. That the Legislature did not intend the jurisdiction to be ex-elusive is borne out by tbe fact that in tbe preceding sub-section it is expressly provided that the jurisdiction shall be exclusive in the subject-matter contained in sub-section a.

It is therefore clear that the petitioner is not entitled to his release on the ground that jurisdiction lies solely in the Juvenile Court. If Section 12970 is repealed, then there could be no offense charged thereunder, and the conviction would be void.

If Section 12970, General Code, is repealed it must be because it is inconsistent with Section 1639-46, General Code, a part of the juvenile act, or that that section is repealed by implication.

The writer, as above stated, is of the opinion that the repealing clause has reference only to juvenile matters and does not repeal all inconsistent provisions of the Ohio Criminal Code.

However that may be, no such inconsistency exists. True some of the matters constituting an offense in Section 12970, General Code, appear in Section 1639-46, General Code, but these were so provided in order to enforce protection for the child, which, as heretofore stated, is the purpose of the act to which the Juvenile Court is limited. This certainly is not inconsistent with the Criminal Code, the jurisdiction of which lies in another court of different-jurisdiction. It is suggested that the penalty provision is different, and, therefore, the older section is repealed. True, the maximum fine is higher in Section 1639-46 of the later Juvenile Code. But the declared purpose of the law must be borne in mind. The juvenile, act gives wider discretion to the Juvenile Court, as the purpose is not only to punish for past failure of duty, but to enforce the discharge >of such duty to the child. Section 12970, General Code, simply provides punishment for criminal offense. The laws are different. The offenses are different. The laws are administered under different jurisdictions. If the offense is charged under Section 12970, the judgment upon conviction would be as therein provided. If the charge is under Section 1639-46 in the Juvenile Court, the judgment upon conviction would be as therein provided.

The rule is that repeal by implication is not favored. There is no reason to consider repeal by implication in the instant case.

Both sections can be given effect, each in the jurisdiction provided therefor, and no repeal of Section 12970, General Code, results..

Writ denied.

Ross, P. J., concurs.

Matthews, J.,

dissenting. It seems clear to me that Section 1639-46 of the Juvenile Court Code, as amended, and Section 12970, General Code, so far as material here, are duplicate definitions of the same offense, that is, failure to provide, with a difference of application based on age and a difference in the punishment prescribed. The result of holding that both sections are laws permits the extent of punishment in all cases, and indeed whether there shall be any punishment at all when the minor is between the ages of 16 and 18 years, to be dependent upon the forum selected by the prosecuting witness or attorney. This seems to me to be a construction that imputes to the Legislature an intention to make an unconstitutional delegation of legislative power.

In the absence of legislative authority, courts themselves may not suspend execution of sentences. Ex Parte United States, 242 U. S., 27, 61 L. Ed., 129, 37 S. Ct., 72. And if courts are to impose punishment for crime, the Legislature must prescribe limits within which the judicial discretion must be confined. I quote from the syllabus of Ex Parte United States:

“The Constitution assigns to the Legislature the power to enact laws defining crimes and fixing the degree and method of punishment; to the judiciary the power to try offenses under those laws and impose punishment within the limits and according to the methods therein provided; to the executive the power to relieve from the punishment so fixed by law and so judicially ascertained and imposed.

“The power of Congress to fix punishment for crime includes the power, by probation or other suitable legislation, to equip the courts in advance with such latitude of discretion as will enable them to vary and control the application of punishment to suit the exigencies of each case, in accord with obvious considerations of humanity and public well-being;

“But the courts, albeit under the Constitution they are possessed inherently of a judicial, discretionary authority which is ample for the wise performance of their duties in the trying of ^offenses and imposing of penalties as the laws provide, have no inherent constitutional power to mitigate or avert those penalties by refusing to inflict them in individual cases.”

The same rule is, of course, applicable to state courts under our state Constitution.

If the Legislature cannot delegate its law-making power to the courts, it would seem to follow, for stronger reasons, that it could not place in the power of a private person or a prosecuting attorney the power to determine whether any punishment should be inflicted, or, a greater or less punishment, by selection of the forum in which the prosecution is conducted.

I do not know that it is disputed that a prosecution under one section would be a bar to a prosecution under the other. The Legislature cannot avoid the double jeopardy provision of the Constitution by multiplying definitions in the statutes and by providing for multiple prosecutions, each pertaining to a particular and different definition for the same non-eon-forming conduct.

My associates speak of these two sections being given effect “each in the jurisdiction provided therefor.” There is but one jurisdiction here involved, and that is the jurisdiction of. the state of Ohio. This is not an instance of different acts or of the same act violating laws of different jurisdictions,'such as federal, state and municipal. It is one offense (failure to provide) created by one sovereignty — the state of Ohio.

Nor is it a. case of the same act violating different statutes defining crimes containing some common elements and some different elements.

In 8 Ruling 'Case Law, 149, Section 135, it is said:

“A single act may be an offense against two statutes, and, if each statute requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. And there is no doubt that it is within the power of the Legislature to create two or more offenses which may be committed by a single act, each of which is punishable by itself. A conviction or acquittal in such case under either statute would be no bar to a conviction under the other, for the accused would not be twice in jeopardy for one offense, but only once in jeopardy for each offense.”

These two sections do not create two or more offenses.- They simply reiterate the sovereign condemnation of the same offense — failure to provide.

The nature of the offense defined by these sections requires continuing conduct. And it is true that a conviction today for failure to provide would be no legal bar to a later prosecution based on tomorrow’s default. But the purpose of both statutes is to insure the support, protection, and welfare of the minor. And by the Juvenile Court Code the Legislature has indicated its purpose to give to that court wide discretion in fixing the terms of punishment, and probation so as to accomplish that object. This purpose would be largely frustrated if at the time the matter is brought to the attention of that court the parent should be serving a sentence, for failure to provide, imposed by another court.

Against this background, the Juvenile Court Code should be construed.

I recognize the rule of statutory interpretation unfavorable to repeals by implication, but, in this instance, its application is weakened by the fact that the Legislature contemplated that recourse to that principle might result in continuing in force existing statutes hostile to its purpose. So the Legislature expressly provided by Section 1639-62, General Code: “That existing Sections 1639 to 1683-1, inclusive, of the General Code, and all other sections or parts of sections of the General Code inconsistent herewith, be, and the same are hereby repealed.”

The provisions that it is necessary to consider particularly are Sections 12970 and 1639-16, General Code.

Section 12970 is as follows:

“Whoever, having the control of or being the parent or guardian of a child under the age of sixteen years, wilfully abandons such child, or tortures, torments, or cruelly or unlawfully punishes it, or wilfully, unlawfully or negligently fails to furnish it necessary and proper food, clothing or shelter, shall be fined not less than ten dollars nor more than two hundred dollars or imprisoned not more than six months,' or both.” By Section 1639-46, General Code, a section of the Juvenile Court Code, it is enacted:

“Whoever is charged by law with the care, support, maintenance or education of a child and fails, neglects or refuses so to do, or who abandons such child, or who unlawfully beats, neglects, injures or otherwise ill treats such child, or causes or allows him or her to engage in common begging, or whoever, being the father of an illegitimate child under the age of eighteen years and fails, neglects or refuses so to do, upon complaint filed in the court exercising the powers and jurisdiction in this chapter conferred, shall be fined not less than ten dollars, nor more than five hundred dollars, or imprisoned not less than ten days nor more than one year, or both; provided, if he. shall pay promptly each week for such purpose to the court, or to a trustee named by such court, a sum to be fixed by it, sentence may be suspended. Such neglect, nonsupport or abandonment shall be deemed to have been committed in the county in which such child may be at the time of such neglect, non-support or abandonment. Each day of such failure, neglect, or refusal shall constitute a separate offense, and the judge may order that such person stand committed until such fines and costs are paid. In the case of an illegitimate child, if it is proven at the hearing from the evidence that the defendant is the putative father of said child, and that said defendant is unable to support or cqntribute toward the support of said child, said defendant shall not be acquitted or discharged. The court shall make a finding of paternity and continue the case until such time as if appears that said defendant is able to support, or to contribute toward the support of such child.”

By Section 1639-16, General Code, the jurisdiction of the Common Pleas Court is defined:

“(a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code:

“1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, or (4) crippled.

“2. To determine the custody of any child not a ward of another court.

“3. To determine the paternity of any child alleged to have been born ont of wedlock and to provide for the support and disposition of such child, subject to the concurrent jurisdiction of other courts as provided by law.

“(b) The court shall have original jurisdiction to determine ail eases of misdemeanors charging adults (1) with contributing to, encouraging, or tending to cause by any act of omission, the delinquency, neglect or dependency of any child; or (2) with any act or omission with respect to any child, which act or omission is a violation of any state law or municipal ordinance; or (3) with desertion, abandonment or failure to provide subsistence.

“(c) Except as to Juvenile Courts separately and independently created by law, jurisdiction to hear, determine and make a record of any action" for divorce or alimony involving the custody or care of children filed in the Court of Common Pleas and certified by the presiding judge of the Common Pleas Court with all the papers filed therein to the court for trial; and to provide for the custody, care and support of children certified by the Common Pleas Court .of any county of the state after a divorce has been granted.

“Provided, however, that no such certification shall be made in either case unless the consent of the judge of the court exercising the powers and jurisdiction conferred in this chapter is first obtained.

“After such certification is made and consent obtained, the court shall proceed as if such action was originally begun in said court.”

The act also contains some definitions of terms that are of some assistance in determining the legislative intent. By Section 1639-1, General Code, it is enacted that “The word ‘child’ includes any child under eighteen years of age.” “The word ‘adult’ includes any person eighteen years of age or over.” Section 1639-2, General Code, defines delinquent child, Section 1639-3, neglected child, and Section 1639-4, dependent child.

By other sections, provision is made for the effective exercise by the Juvenile Court of the jurisdiction conferred by Section 1639-16, both as to children and adults. When an adult is arrested for violation of any of the provisions of the act he “shall be taken before the judge and tried according to the provisions of this chapter.”

By Section 1639-7, it is enacted that “The Juvenile Court, or Court of Common Pleas, division of domestic relations of any county * * * shall have and exercise the powers and jurisdiction conferred in this chapter.” And that is the only provision conferring jurisdiction over the subject-matter of the chapter upon any court.

It is clear, I believe, that no court in Hamilton county, other than the Court of Common Pleas, division of domestic relations, has jurisdiction over the offenses by adults created by this act.

The petitioner is not held for violation of any provision of the Juvenile Court Code. The charge against him was the violation of Section 12970. Reliance is placed upon Sections 1558-6», 13422-2 (113 Ohio Laws, 123), and 13422-3 (115 Ohio Laws, Pt. 2,163), General Code, for the authority of the Municipal Court of Cincinnati to hear and determine the cause. The first section confers jurisdiction upon the Municipal Court of Cincinnati in all actions, civil and criminal, in which justices of the peace have or may be given jurisdiction. The other two sections confer jurisdiction upon justices of the peace, inter alia, “in all cases of violation of any law relating to * * *

“(3) The abandonment, non-support or ill treat ment of a child by its parents; * * *

“ (7) The torturing, unlawfully punishing, ill treating, or depriving anyone of necessary food, clothing, or shelter.”

These sections were in force when the Juvenile Court Code was enacted.

While Sections 1558-6», 13422-2 and 13422-3, General Code, confer jurisdiction upon the Municipal Court to hear complaints of violation of such laws as may fall within the general description, a criminal statute, of the kind described, must exist and its violation be charged before the authority of the court can be called into operation. It is claimed that Section 12970, General Code, is such a statute, and that the complaint filed in the Municipal Court charges a violation of it.-

Now was Section 12970, General Code, still a law at the time charged? Is it inconsistent with the Juvenile Court Code? If it is, it was repealed by the express provisions of Section 1639-62, General Code.

It will be observed that the age limit fixed by Section 12970, General Code, is sixteen years, whereas the Juvenile Court Code fixes the age limit at eighteen years. Another inconsistency relates to the punishment. Section 12970 provides for a fine of not less than ten dollars nor more than two hundred dollars or imprisonment for not more than six months or both. Section 1639-46 of the Juvenile Court Code provides for a punishment by fine of not less than ten dollars, nor more than five hundred dollars, or imprisonment of not less than ten days nor more than one year, or both. There is also a provision for suspension of the sentence in the discretion of the court in the event the defendant makes suitable arrangements for the support of the child.

These provisions are certainly inconsistent. Both cannot be given effect. Therefore, the later expression of the Legislature must be given effect. The result is that the prior inconsistent statute (Section 12970) is repealed by the express provision of Section 1639-62, General Code.

As I have already pointed out, a strained attempt to reconcile these two sections in excessive deference to the rule unfavorable to repeals by implication leads to unconstitutional results. Avoidance of such a result is a paramount obligation in the construction of statutes.

If I am right in this conclusion, the petitioner was not charged with the violation of any law. That which was described in the warrant and which had been a law had ceased to be such. That would seem to show conclusively that his conviction was erroneous. But this proceeding in hateas corf us must be decided on the question of whether the Municipal Court of Cincinnati had jurisdiction. If another statute, penalizing failure to provide, existed, and the Municipal Court was not excluded by express statutory provision from jurisdiction to hear charges of violating it, it might be said that that statute coupled with Sections 1558-6a, 13422-2 and 13422-3, General Code, would confer jurisdiction, so that it could not be said that the conviction would be void as distinguished from erroneous.

Now has the Municipal Court been excluded from jurisdiction to hear causes arising under Section 1639-46 and the other sections of the Juvenile Court Code?

We have referred to some of the provisions of that code which throw light upon the proper construction of Section 1639-16. The language of that section in the light of the other provisions seems to me to manifest a legislative intent to confer exclusive original' jurisdiction upon the Court of Common Pleas, division of domestic relations, to completely administer the provisions of the Juvenile Court Code, excepting in those instances in which concurrent jurisdiction is expressly mentioned. As nothing is said in the Juvenile Court Code about any other court having concurrent jurisdiction, I conclude that the Municipal Court of Cincinnati is without jurisdiction to hear complaints charging failure to provide.

For these reasons, the prayer of the petition should be granted, and the petitioner discharged from custody.

For these reasons, I dissent from the opinion just announced.  