(dissents).
I must respectfully dissent to this decision for the same concluding reason I stated in Schaffer v. Green, supra. I believe this Court not only has the power to administer the law, but it also has the duty to say what the law is when a “legislative void” occurs, as referred to by the majority decision in Schaffer, when Judge Bussey recited: “The responsible legislative leadership of both the House and the Senate of the Oklahoma State Legislature have galvanized into action, during the closing days of the session, to fill the legislative void created by Lamb v. Brown.” *394Likewise, I refuse to believe that appellate judges are expected to sit equipped with “blinders” as an obstruction to sight or discernment, as were army mules. Nor, are we so bound by the doctrine of “stare de-cisis” that we must close our eyes to the realities of life as they presently exist.
I repeat again that the United States Court of Appeals in the Lamb decision correctly held that the Oklahoma Statute did not comply with the equal protection clause of the Fourteenth Amendment to the United State Constitution. I again state my view to be that the proper action for this Court to have taken in Schaffer was for this Court to have given the male juveniles the benefit of the decision, and to have held that males under eighteen years of age were juveniles, subject to certification by the Juvenile Court. For this Court to reach back to 1910, for the definition of a child, is an effort to turn time back, completely disregarding the facts of life as they exist today. In 1910, a fourteen year old person was free to work in any phase of industry in which he could find employment. Today, a boy cannot even be legally employed to sack groceries until he reaches fifteen years of age. Most other phases of business or industry is proscribed from employing anyone under eighteen years of age, under the child labor laws. The same was true in 1925, when Ex parte Barton, et al., supra, was decided.
With reference to the instant matter, Linda Freshour committed the alleged offense on March 28th. On April 4th the Juvenile Court dismissed her application to be considered as a juvenile, being seventeen years of age; and she was returned to the district judge. The petition filed in this Court states:
“. . . Judge Hunter of the Juvenile Division dismissed the application for want of jurisdiction and immediately thereafter petitioner was taken before Judge Mills of the District Court who arraigned her as an adult and set her preliminary hearing on the 19th day of April, 1972, . . . .”
The petition was filed in this Court on April 6th. Counsel for petitioner correctly argued before this Court that the purpose, intent and function of the juvenile laws are to protect the juvenile. Originally the theory of the juvenile laws was that the child was to be considered society’s child rather than an enemy of society. Theoretically then, if the child belonged to society and was not the enemy of society, then the interests of the state and the interests of the child were not in conflict but coincided. This basic theory has not changed, except to assure that a child receives “due process of law” in all juvenile hearings. See: In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
It therefore appears to this writer in the instant case, insofar as petitioner has not been granted a preliminary examination, nor has she waived such, that the district court — as a trial court — did not have jurisdiction of petitioner when the alleged arraignment occurred; nor does that trial court now have jurisdiction to conduct a trial for petitioner. It appears to this writer that jurisdiction of the district court, as a trial court, does not become fixed until after the preliminary examination has been conducted, or has been waived. See: Nicodemus v. Dist. Court, Okl. County, Okl.Cr., 473 P.2d 312 (1970). Therefore, since H.B. 1705 was executed by the Governor at four o’clock on April 4th, this Court should hold that the seventeen year old girl should receive the benefits of that law. The proper administration of justice dictates that action, if nothing else. This Court, and all other courts, are charged with the fundamental function of properly administering justice. In the instant case, the Honorable Judge Mills recognized that the petitioner is a juvenile when he directed the Sheriff to segregate her in the county jail. Everybody seems to recognize the fact that she is a juvenile; and they discuss the distastefulness of the action; and they recite that the action is personally repugnant to them, but because of tradition and the veil of separation of powers prevents any justifiable action to be taken by this *395Court. I do not believe that theory, and refuse to subscribe to it. When a legislative void is created, it is the duty of the courts to say what the law is, until the legislature cures that defect. That is how the common law was created.
I would hold that the petitioner must be remanded to the juvenile division for a hearing to determine whether or not she should be certified to stand trial as an adult. How can the state, or society, be hurt?
I therefore respectfully dissent to this decision.