(concurring). My views with regard to the constitutionality of MCLA 712A.4; MSA 27.3178(598.4) are set forth in my opinion in People v Fields, 388 Mich 66; 199 NW2d 217 (1972) and need not be repeated here. In my dissenting opinion in People v Rubin Williams, 50 Mich App 270; 213 NW2d 307 (1973), I set forth my views as to whether Juvenile Court Rules of 1969, Rule 11, is effective in providing substantive standards for waiver of juveniles as opposed to meeting the requirements of procedural due process. In my opinion, neither issue is dispositive here.
Act 22 of the Public Acts of 1946 (1st Ex Sess) changed the language of § 4 to read as set forth by *7Judge Fitzgerald in his opinion.1 This act states in its title its purpose as:
"[T]o amend sections 3 and 4 of chapter 12a of Act No. 288 of the Public Acts of 1939 * * * to revise and consolidate the statutes relating to the organization and jurisdiction of the probate courts of this state; * * * and the jurisdiction of the juvenile division of the probate courts over children * * * .”
Section 4 of Act 54 of the Public Acts of 1944 (1st Ex Sess) reads as follows:
"In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony which involves a maximum penalty of imprisonment for a term of more than 5 years, the judge of probate of the county wherein the offense is alleged to have been committed shall, upon motion of the prosecuting attorney, waive jurisdiction, and in case of all other felonies, said judge may, after investigation and examination, including notice to parents if address is known, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.” (Emphasis added.)
In People v Smith, 246 Mich 393, 398; 224 NW 402, 404 (1929), the Court dealt with a statute the text of which far exceeded the scope of its title. The Court there stated:
"We must hold the amendment, attempted by Act No 37, Pub Acts 1927, unconstitutional, and, therefore, no amendment. This holding leaves the law as it was before the aborted attempt to amend.”
See also In re Petition of Hendricks, 248 Mich *8124; 226 NW 878 (1929); People v Rose, 218 Mich 642; 188 NW 417 (1922); John Spry Lumber Co v Sault Savings Bank Loan & Trust Co, 77 Mich 199; 43 NW 778 (1889); Campau v Detroit, 14 Mich 276; 66 ALR 1483 (1866); Michigan Civil Jurisprudence, §§ 163, 170-174, pp 542-544, 553-563.
Based upon the above authorities, it must be concluded that 1944 PA 54 (1st Ex Sess), § 4 did revive as the applicable law upon the declared unconstitutionality of MCLA 712A.4; MSA 27.3178(598.4).
The mandatory language of the first portion of § 4 which requires a probate judge to waive jurisdiction in cases involving a felony carrying a maximum penalty of imprisonment for a term of more than five years sets forth a clearly ascertainable standard. By contrast, the remaining language with regard to all other felonies leaves in the hands of a probate judge the same broad unascertainable discretion held subject to constitutional infirmities in People v Fields, supra. However, the last half of §4 can be severed, leaving the first half of said section remaining as applicable law. See Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60; 38 NW2d 77 (1949); Rohan v Detroit Racing Association, 314 Mich 326; 22 NW2d 433 (1946); Ritter v Pontiac, 276 Mich 416; 267 NW 641 (1936); People v McMurchy, 249 Mich 147, 157-159; 228 NW 723, 727-728 (1930); Chusid v State Superintendent of Private Employment Bureaus, 28 Mich App 72; 184 NW2d 276 (1970); and 2 Sutherland, Statutory Construction (4th ed), § 44.12, pp 357-358.
Finally, while the language of § 4 does not specifically mandate a motion by the prosecuting attorney, in view of the fact that the language of the first half of § 4 is mandatory as to the duty of *9the probate judge, I conclude that in all cases where a child over the age of 15 years is accused of any act the nature of which constitutes a felony which involves a maximum penalty of imprisonment for a term of more than 5 years, it would be the duty and responsibility of the prosecuting attorney, by proper motion, to place the case before the probate judge for waiver.
Act 140 of the Public Acts of 1969, an amendatory act in effect at the time juvenile court jurisdiction over defendant White was waived in 1971, incorporated certain insubstantial Changes into the statutory language but in no way cured the constitutional defect recognized in Fields.