concurring in part and dissenting in part:
I respectfully dissent from that part of the majority opinion which appears to hold1 that the district court could order the *234Division of Mental Hygiene and Mental Retardation of the Nevada Department of Human Resources to confine the minors in an out-of-state facility had the minors first been committed to or placed in the custody of the Division.
The order of the district court, if read in isolation, seems to “order the Division to confine the minors in an out-of-state facility”; however, when read together with the entire record, it is clear that the only duty to be performed by the Division was to physically transport the minors to that facility. NRS 62.300. They were not committed to or placed in the custody of the Division, but were placed directly by the court in the out-of-state facility.
Jurisdiction of the district court does not extend to the function of determining what course of action should be taken nor should it assume the latitude to substitute its appraisals and conclusions for those of the Division.
The decisions to provide mental health service, which and how many services to provide and where and how to provide them, are legislative and executive decisions requiring a balancing of public interests which the courts are neither authorized nor suited to direct. In Galloway v. Truesdall, 83 Nev. 13, 31, 442 P.2d 237, 249 (Nev. 1967), this Court said:
The courts must be wary not to tread upon the prerogatives of other departments of government or to assume or utilize any undue powers. If this is not done, the balance of powers will be disturbed and that cannot be tolerated for the strength of our system of government and the judiciary itself is based upon that theory.
Cf. Jones v. Beame, 380 N.E.2d 277 (N.Y. 1978); Blaney v. Commissioner of Correction, 372 N.E.2d 770 (Mass. 1978).
It is not to be inferred that Division action could ever be above judicial review or beyond the scope of the extraordinary writs, NRS ch. 34. Our courts will always possess the authority to set aside decisions of the Division if they are arbitrary or illegal.
I agree with the majority that the juvenile division of the district court had the power to directly place the minors in the out-of-state facility, NRS 62.040; NRS 62.240; NRS 62.200(l)(c); that the cost was a proper charge against the county of their legal residence, NRS 62.240(2), and that the district court was without authority to order the Division to pay the cost of treatment at the out-of-state facility. I concur in the remainder of the majority opinion.
In the majority opinion it is written:
“Petitioners next contend that even if not precluded from continuing the delinquency proceedings, the court could not order the Division to confine the minors in an out-of-state facility. We disagree.”