dissenting: I must respectfully dissent from that portion of the opinion written for the court holding the invalid portion of Chapter 278, Laws of 1965, separable from the remainder of the act.
The legislature was fully aware that the facilities of the state for handling juvenile offenders was limited. This is indicated by the provisions of Section 6 (a) (5), which read:
“(5) commit such child, if a boy under the age of sixteen (16), to the state industrial school for boys, or if a boy sixteen (16) years of age or over to [either] the state industrial school for boys, [or the state industrial reformatory:] Provided, No boy sixteen (16) years of age or over shall be committed to the state industrial school for boys unles such commitment has received the prior approval of the director of the division of institutional management, [and if any boy sixteen (16) years of age or over is committed to the state industrial reformatory such commitment shall be subject to the same conditions and rights as would be the case if such commitment were made by a district court;] . . .” (Emphasis added.)
The new provisions of this subsection are emphasized, and those held invalid are set apart in brackets.
By providing that no boy 16 years of age or over shall be committed to the state industrial school for boys unless such commitment has received the prior approval of the director of the division of industrial management, the legislature froze commitments to that institution in keeping with the facilities available at that institution. Evidence in the record discloses that the state industrial school for boys will be capable of taking not more than 20 or 30 boys per year in the 16 and 17 year age group for the entire state of Kansas.
K. S. A. 76-2110 provides:
“Whenever there shall be as large a number of boys in the school as can properly be accommodated, it shall be the duty of the department of social welfare to give notice to the courts of the fact by publication in some daily paper of general circulation published at the capital of the state, whereupon no boys shall be sent to the school by the said courts until notice shall be given them by the department of social welfare as aforesaid that more can be received.”
*232Reports issued monthly by the Kansas Rureau of Investigation disclose that there are approximately 350 to 400 offenders per month in the state of Kansas 16 and 17 years of age. For the month of March, 1966, there were 455.
The appellant testified that in 1965 there were 826 boys 16 and 17 years of age arrested in Sedgwick County for felonies and misdemeanors, not counting traffic offenses.
It was abundantly clear to the legislature that some outlet for the extension of jurisdiction of the juvenile courts to include the 16 and 17-year-old male offenders had to be provided. It therefore designated the Kansas state industrial reformatory as a place for the commitment of these offenders. Little did it suspect this portion of the act would be declared unconstitutional, and little did it suspect the original exclusive jurisdiction foisted upon the juvenile court would obligate the juvenile court to conduct the full dress hearings required by Kent v. United States, 383 U. S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, to waive such jurisdiction.
In my opinion, the legislature would not have enacted the act in question had it known the portion authorizing commitment to the state industrial reformatory at Hutchinson was invalid.
The burden cast upon the probate judges of the state, who are by statute made the judges of the juvenile courts of their respective counties (K. S. A. 38-804) will be intolerable, particularly in the greater populated counties. Nowhere was any appropriation for additional money made to cover the expense of such extended jurisdiction and resultant litigation. (See, 6 Kan. L. Rev. 347, 349.)
Throughout the history of our state the legislature has had an eye on economy in resolving litigation. For example, see K. S. A. 60-102. The legislature obviously did not contemplate the tremendous expense which is being imposed upon juvenile courts to waive the original exclusive jurisdiction conferred upon them over 16 and 17-year-old male offenders who were previously handled in the criminal courts, where the facilities had become established and the procedures tested.
Under Kent the juvenile court is confronted with a critically important proceeding, if its original exclusive jurisdiction is to be waived and the offender is to be prosecuted in the criminal courts. The juvenile offender is entitled to counsel, and whether tire requirement of K. S. A. 1965 Supp. 38-821, that a guardian ad litem be appointed, will fulfill this requirement remains to be seen. He is not only entitled to counsel, but must be informed of his rights *233to counsel. The juvenile court must accompany its waiver order with a statement of reasons or consideration therefor. The statement must be sufficient to demonstrate that the statutory requirements of Section 3 (b) have been met; that the question has received the careful consideration of the juvenile court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.
Not only this but consider further requirements imposed by the United States Supreme Court where a waiver hearing is conducted. In Kent it was said:
“With respect to access by the child’s counsel to the social records of the child, we deem it obvious that since these are to be considered by the Juvenile Court in making its decisions to waiver, they must be made available to the child’s counsel. This is what the Court of Appeals itself held in Watkins. [Watkins v. United States, 119 U. S. App. D. C. 409, 343 F. 2d 278 (1964)]. There is no doubt as to the statutory basis for this conclusion, as the Court of Appeals pointed out in Watkins. We cannot agree with the Court of Appeals in the present case that the statute is ‘ambiguous.’ The statute expressly provides that the record shall be withheld from ‘indiscriminate’ public inspection, ‘except that such records or parts thereof shall be made available by rule of court or special order of court to such persons ... as have a legitimate interest in the protection ... of the child. . . .’ D. C. Code §11-929 (b) (1961), now § 11-1586 (b) (Supp. IV, 1965). (Emphasis supplied.) The Court of Appeals has held in Black [Black v. United States, 122 U. S. App. D. C. 393, 355 F. 2d 104 (1965)] and we agree, that counsel must be afforded to the child in waiver proceedings. Counsel, therefore, have a legitimate interest’ in the protection of the child, and must be afforded access to these records.
“We do not agree with the Court of Appeals’ statement, attempting to justify denial of access to these records, that counsel’s role is limited to presenting ‘to the court anything on behalf of the child which might help the court in arriving at a decision; it is not to denigrate the staff’s submissions and recommendations.’ On the contrary, if the staff’s submissions include materials which are susceptible to challenge or impeachment, it is precisely the role of counsel to ‘denigrate’ such matter. There is no irrebuttable presumption of accuracy attached to staff reports. If a decision on waiver is ‘critically important’ it is equally of ‘critical importance’ that the material submitted to the judge — which is protected by the statute only against ‘indiscriminate’ inspection — be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from its staff or otherwise. The Juvenile Court is governed in this respect by the established principles which control courts and quasi-judicial agencies of the Government.” (pp. 562, 563.)
*234The waiver proceeding necessarily contemplates review in the appellate courts, and the burdensome expenses upon the taxpayers to pay the bill follow just as night follows day. (See, State v. Dubray, 121 Kan. 886, 250 Pac. 316.)
The waiver provision in Section 3 (b) of the act is new to the Kansas juvenile code, and the expense will also be new and additionally burdensome, particularly with the provisions of the act designed by the legislature as an outlet — commitment of 16 and 17-year-old male offenders to the Kansas state industrial reformatory —declared invalid. Failure of adequate facilities to cope with the problem will undoubtedly lead the juvenile courts to resort to waiver proceedings.
The act as it now stands thwarts the very purpose of the Kansas juvenile code as expressed in K. S. A- 38-801, because the state cannot exercise its parental power where it lacks proper facilities to provide for the juveniles.
I am confident the legislature would not have enacted Chapter 278, Laws of 1965, had it known the portion declared invalid was unconstitutional. Accordingly, it is' respectfully submitted the entire act should be declared unconstitutional because the portion declared invalid is inextricably tied to the whole enactment..