(specially concurring) :
Although it is highly repugnant to my personal philosophy regarding the legal criminal procedures wherein persons of relatively tender years are involved, I feel the obligations of my oath as a judicial officer require me to concur in the legal conclusion reached by Judge Bussey.
In 1968, the Thirty-First Legislature enacted Senate Bill No. 446, which defined the term “child” as being “any male person under the age of sixteen (16) years and any female person under the age of eight-teen (18) years.” This same Act also defined “delinquent child,” “child in need of supervision,” and “dependent or neglected child.” Senate Bill No. 446 was codified as 10 O.S.Supp.1968, §§ 1101 to 1504.
In 1970, the Thirty-Second Legislature amended 10 O.S.Supp.1968, § 1101 by the passage of Senate Bill No. 375, which amendment omitted any definition of the word “child”, but did define “delinquent child” to mean “(1) any male person under the age of .sixteen (16) years and any female person under the age of eighteen (18) years who has violated any federal or state law or municipal ordinance, * * *.”
The 1970 definition of “delinquent child” was codified as 10 O.S.Supp.1970, § 1101 (a).
As well, the Thirty-Second Legislature enacted 10 O.S.Supp.1970, § 1101A, the title to which act, which was House Bill No. 1292, reads as follows:
“An Act Relating to Children; Amending Section-109, Chapter 282, O.S.LJ968 (10 O.S.Supp.1969, § 1109);
Pertaining to the questioning of children by law enforcement officers and others; defining terms, and directing codification of definitions.”
Section 2 of 1101(A) contains two definitions. “Child” is defined as any person under the age of eighteen (18) years. “Delinquent child” is defined in the exact language as is set out in 10 O.S.Supp. 1970, § 1101(a).
Unquestionably, the Legislature intended to maintain the distinction between a person under the special statutory ages who had violated a criminal law and the general term “child.”
Such Legislative intent can be found in S.C.R. No. 93, adopted in April of 1970, wherein the Thirty-Second Legislature stated there was no Legislative intent in the enactment of Enrolled Senate Bill No. 375 to make it possible for a child previously certified as an adult, for purposes of a criminal prosecution, to be dealt with as a “child in need of supervision” or a dependent or neglected “child” as a result of such legislation. It is to be noted that the ages for both “child in need of supervision” and “dependent or neglected child” was established at eighteen (18) for both sexes; as distinguished from those cases where a person under the ages of sixteen (16) and eighteen (18) had violated a criminal sanction.
Because the language of 10 O.S.Supp. 1970, § 1101A is identical with the language *381of 10 O.S.Supp.1970, § 1101(a), insofar as both define the term “delinquent child,” that part of § 1101A must fall as being unconstitutional in light of language of Lamb v. Brown, 10 Cir., 456 F.2d 18.
The definition of “child” as contained in § 1101A must likewise fall because of two reasons. First, it is clear the definition of “child” as contained in § 1101A was not intended by the Legislature to apply to those persons who had violated a criminal law or penal' óMinarice, arid secondly,- and as spelled out by Judge Bussey, the provisions of § 1101A do not stand the test of Art. 5, Sec. 57, of the Oklahoma Constitution.
State ex rel. Short v. Johnson, 90 Okl. 21, 215 P. 945 (1923) clearly held:
The provision of this section, that every act shall have but one subject, which shall be clearly expressed in its title, is positive, mandatory, and reasonable.
Also, School Dist. No. 25 of Woods County v. Hodge, 199 Okl. 81, 183 P.2d 575, held that the purpose of the constitutional provision of Art. 5, Sec. 57, that every Act of the Legislature shall embrace but one subject which shall be clearly expressed in its title is to prevent the blending of repugnant objects in one Act, and to prevent the inclusion of provisions not indicated by the title, in order that those interested may not be misled or misinformed as to contents of the statute by any expression used in its title.
If there is no constitutionally acceptable definition of a child or the establishment of an age at which a child may subject himself to juvenile proceedings because of the violation of a criminal law, 10 O.S.Supp.1968, § 1112 becomes vague, uncertain, indefinite, incapable of construction and application, and therefore unconstitutional.
The only salvation for § 1112 of the Juvenile Code, in as much as it relates to criminal or quasi-criminal charges, is to say that Title 21, § 152, is the only constitutional and non-discriminatory legislative act remaining wherein the age at which the person is presumed to know right from wrong and accountable for his acts.
The opinion of this Court, written by Judge Bussey, and concurred in by an additional member of the Court, erases any question concerning the validity of any conviction had upon a male child of the age of sixteen (16) or seventeen (17) without a juvenile hearing prior to the opinion of the Court of Appeals, 10th Circuit, and as well, any conviction had on males sixteen (16) or seventeen (17) between the 10th Circuit opinion and the date of this opinion. This be true even if the opinion of the Federal Court was treated as retroactive, rather than prospective, in application.
There has been placed before me a Dissent to. the Courts holding, written by my colleague, Judge Brett. The Dissent closes with the observation that this Court should hold “that males under eighteen years of age who are charged with the commission of a crime, are — like females — juveniles.”
Cannot it be as logically argued that with the lowering of the voting age; with the advent of eighteen year olds serving on juries and passing judgment of their fellow man, that this Court should not follow what seems to be a National trend and also lower the age of juveniles to sixteen, or even fifteen?
Have we, in this so-called enlightened time, forgotten the basic structure of our Republic? Are we to ignore the fundamental constitutional concept of separation of powers between the Legislative, Executive, and Judicial branches of government?
Clearly, the establishment of a non-discriminatory age to govern juvenile proceedings is a matter of public policy, and rests exclusively with the Legislature and not with the Courts. Unquestionably, one of the major areas of public discontent with the judiciary is the tendency on the part of some judges to substitute their own “legislative judgment” for that of constitutionally formed and acting Legislatures.