(dissenting).
The principal opinion, in which the preliminary rule in prohibition is made absolute as to respondent magistrate, apparently proceeds upon the basis that the magistrate had no jurisdiction to proceed with a preliminary hearing upon complaints filed alleging felony offenses by relator. This conclusion is derived from relator’s contention that a prior order of the juvenile court of Clay County, Missouri, made after a hearing with counsel present for relator, relinquishing jurisdiction over relator, did not state or recite the reasons therefor.
The principal opinion relies heavily upon Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L.Ed.2d 84 (1966). That case, although emphasizing “the basic requirements of due process and fairness’’ turned upon the language of the District of Columbia statute providing for “full investigation” prior to waiver of jurisdiction over a juvenile and order for trial under regular procedures in felony cases. In re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Kent may of course be distinguished from the case here upon its extraordinary facts, which are these: Kent was apprehended by the police for housebreaking, robbery and rape, and in an interrogation of about 7 hours by them, he admitted his involvement in the offense. His mother retained counsel the next day, and counsel made it known to the Social Service Director of the Juvenile Court that he intended to oppose waiver. While Kent was being detained in the Receiving Home, his counsel arranged for his examination by two psychiatrists and a psychologist. Counsel thereafter filed a motion for a hearing on the question of waiver, along with an affidavit of a psychiatrist certifying that Kent was “a victim of severe psychopathology,” and recommending his hospitalization for psychiatric observation. Counsel, in support of the motion, offered to prove that if Kent were given adequate hospital treatment he would be a suitable subject for rehabilitation. Counsel moved also for access to the Social Service file relating to Kent, representing that it was essential to his providing him with effective assistance of counsel. “The Juvenile Court judge did not rule on these motions. He held no hearing. He did not confer with petitioner or petitioner’s parents or petitioner’s counsel. He entered an order reciting that after ‘full investigation, I do hereby waive’ jurisdiction of petitioner and directing that he be ‘held for trial for [the alleged] offenses under the regular procedure of the U. S. District Court for the District of Columbia.’ He made no findings. He did not recite any reason for the waiver. He made no reference to the motions filed by petitioner’s counsel.” [383 U.S. 546, 86 S.Ct. 1049] There was additionally a presumption that the Juvenile Court judge had received and considered recommendations of his staff prior to the order, the reports being later received by the District Court, and both the reports referred to Kent’s rapid deterioration of personality structure and the possibility of mental illness. The court did say [383 U. S. 561, 86 S.Ct. 1057], “Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. *731We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and 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.” The court went on to observe that under Black v. United States, 122 U.S.App.D.C. 393, 35S F.2d 104 (1965), the child is entitled to counsel (with opportunity to function) in connection with a waiver proceedings; and under Watkins v. United States, 119 U.S. App.D.C. 409, 343 F.2d 278 (1964), counsel is entitled to see the child’s social records. It should be here observed that even if a juvenile court should state “reasons” for the order of waiver of its jurisdiction, if the evidentiary hearing, if accorded, failed to reveal a factual basis for the waiver, the order probably could not be sustained on review.
In contrast to Kent the principal opinion even recognizes that “the waiver proceeding under Sec. 211.071 was conducted by the juvenile court with all scrupulous regard for the constitutional requirements of notice, hearing, assistance of counsel for the juvenile, and access by counsel to the reports of investigation made in pursuance of statute.” I do not agree, however, that the transcript of the waiver proceedings does not reveal “some expression by the court of the basis for the order relinquishing jurisdiction.” Even the Juvenile officer’s motion, by further contrast, for an order terminating further proceedings and to transfer jurisdiction of relator for prosecution under the general law pursuant to Sec. 211.071 alleges these felonies: Possession or control of a quantity of marijuana on or about May 13, 1971; Sale of a quantity of marijuana on or about April 3, 1971; and possession of a quantity of Ly-sergic Acid Diethylamide (LSD), on or about May 20, 1971. It is also alleged “that the said minor is not a proper subject to be dealt with under the provisions of Section 211.011 to 211.431, Revised Statutes of Missouri, 1969, all as more fully expressed in prior pleadings and petitions herein.” At the times alleged these offenses were felonies under Chapter 195, RSMo 1969. Sec. 211.071 provides that in the discretion of the judge of the juvenile court where a petition shows an offense which would be a felony if committed by an adult, “the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.-011 to 211.431.”
The record entry of the juvenile court on May 27, 1971, recites that relator, his natural mother, and Richard J. Habiger, his attorney, were present, and announced ready on the juvenile officer’s motion for order terminating jurisdiction and transfer for prosecution under the general law; and “Now attorney for said juvenile granted time to examine reports to be introduced in evidence. Whereupon, said motion is taken up by the court, evidence is heard and the court doth find: * * Jurisdiction over the child in Clay County, and the fact that he was under the age of 17 years, having been born July 4, 1954 [showing at the time of hearing that relator was 16 years, 10 months and 23 days old], were found. Relator’s objection to dismissal of the petitions and certification was overruled, and the juvenile officer’s motion was sustained, the petitions in juvenile court were dismissed, and relator was ordered prosecuted under general law. Thereafter, “Complaints” in Felony Case were filed in the Magistrate Court. The first is for the sale of a quantity of marijuana, which is still a felony offense under Sec. 195.200, subd. 1(1), unless under Subs. 1(1) (c) there is a delivery of less than 25 grams for no remuneration on a *732first offense. The second complaint is for the possession of a quantity of marijuana, now a misdemeanor under Sec. 195.200, subs. 1(1) (a), for a first offense of possession of less than 35 grams of marijuana. Since there is no way of knowing whether the complaints will be amended, or what the evidence will be if the prosecution of relator as an adult proceeds, no expression of opinion is now made as to the effect, or retroactive effect, of the statute, as amended in 1971, after relator was ordered prosecuted under general law.
The transcript of the record in juvenile court shows these facts: Relator was picked up and detained on May 20, 1971, on a petition in juvenile court for selling marijuana on April 13, 1971, and possession of LSD on May 20, 1971. On May 10, 1967, relator was first referred to the Juvenile Office for vandalism of the Goodyear Store at 2021 Swift, North Kansas City. The second referral was on December 18, for taking light bulbs from a decorated Christmas tree. His third referral was on August 13, 1969, for disorderly conduct including drinking as a minor. His fourth referral was on August 29, 1969, for drinking and being in possession of liquor. On these occasions relator was placed on an informal adjustment program which was agreed to by him and his parents. Even while he was on a program of adjustment relator continued to involve himself in difficulty. “Informal adjustment” is a program set up with rules and regulations similar to official probation although it is not handled officially by the juvenile judge. A child is required to make regular once-a-month visits to the Juvenile Office, and relator always kept his visits.
On the May 20th matter, Deputy Juvenile Officer Glenn Young recommended that relator be made a ward of the court, placed on probation and returned to his parents’ home. [See In Re G-D-G_, 485 S.W.2d 449, 453 [3] (Mo.App. 1972), noting that the court is not required to follow the recommendation of the juvenile officer.] Young did not contact any boys’ homes for possible placement because of his recommendation. “Q. What went into a determination of deciding to present a motion to the Court to Certify? What is your basis for asking for a certification? A. The Seriousness involved in his offenses. Q. Is there anything else? A. Not that I can think of right now. * * * Q. In your opinion, would Tom benefit from further care and treatment under juvenile process? A. I do not think so. Q. How do you arrive at that conclusion? A. In the past he has exhibited that he is not capable of following rules and regulations, for one. * * * Q. Is there anything else that went into your consideration leading to your determination that he would not benefit by further care and treatment under the juvenile process? A. Well, I didn’t think that we could benefit him in the juvenile office. I thought about Boonville, or the Training School for Boys; and I did make contact, and found the average age of the juveniles at Boonville is approximately 15.8 years. Tom will be seventeen on July 4th of this year, and so he is quite a bit older than the boys at Boonville, * * *. THE WITNESS : I would also tend to say that the Training school is overly populated, and that Tom would not — in my mind, Tom would not be able to be given the proper supervision or the adequate aid that would be required to help Tom.”
James Edward Button, a supervisor-caseworker at the Boonville Training School for Boys, testified that it had a population of 282 there, 28 at Cuivre River Park Camp, 30 at Watkins Mill Park Camp, and 75 at the Poplar Bluff Youth Center. The recommended capacity at Boonville is 150, and the average age of boys is 15.8. There has been very little success with boys who have been charged with narcotics violations, except for one limited success in transferring [them] to the State Hospital in St. Louis. He would not think the chances for progress were great for a boy approximately 17 years old, charged with *733narcotics violations and a history of being in trouble. On cross-examination Button testified that there are a few boys at Boonville 17 years old, and they may stay until they are 18. The average length of stay there is 7.7 months, and because of over-population some boys are forced to be moved out at an early date. Some children benefit and some do not by going to Boon-ville.
Mrs. Helen Frye, Clay County Juvenile Officer, testified that Clay County does not have “structured environment” for juveniles to which they can be referred by the court. There was not any detention facility (at the time) for boys other than the County jail. On cross-examination, Mrs. Frye testified that it would not be her recommendation to send a boy such as relator to such a facility “Because of the seriousness of the offenses * * *— since we feel that the Training School cannot handle him. Q. I gather, then, that the seriousness of the offenses involved here is your consideration in arriving at the determination to file a motion in this court to certify a lad of the advanced age —A. He is not yet seventeen years of age. There were many things taken into consideration. Q. What else was taken into consideration ? A. I think Mr. Young covered it pretty well. His age; his — well, I refer you to the Juvenile Officer’s Report. It covers it pretty well. Q. I don’t believe there’s much of anything in there that indicates — A. His past referrals; his age; whether or not we felt the Training School could handle this boy; — .” As to whether relator was beyond rehabilitation, or beyond the services that can be offered by the Clay County Juvenile office, Mrs. Frye testified that the court made that decision, “The Juvenile Officer feels that this action is appropriate, or the motion wouldn’t have been filed.” The matter of rehabilitating relator “so as to get him off of drugs, if he were in fact using them” would be a matter of decision of another court, if there were certification. Mrs. Frye did not know whether relator could be rehabilitated. “It would depend on the individual, as Mr. Young stated.”
The relator’s school records were objected to and were not admitted in evidence. In the direct examination of relator’s mother, however, it was brought out without objection that he has had problems in school. “A. Mostly not going to class. On this modular scheduling problem, he evidently goes to cafeteria instead of going to class.” He was not mature enough to realize he had to be there at a certain time. Evidently he doesn’t take responsibility well enough. He would demonstrate immaturity in poor judgment, probably following someone he knows is doing wrong. He was caught smoking and suspended for it from school. On cross-examination, she testified he was suspended four times, 10 days total. He had 36 absences from school, and failed everything in academic schooling.
At the close of the evidence counsel for the Juvenile Officer and for relator argued extensively their positions on the motion to certify relator. Relator’s counsel argued that every possible means and resource of the juvenile court had not been exhausted, and that there must be evidence of whether the juvenile would benefit from further care and treatment of the court. Counsel for the Juvenile Officer argued that relator has shown time and again that he repeats his violations. The school authorities had no better success in giving him adjustment than did the Juvenile Officer in giving him informal adjustment. Adult facilities are better than juvenile court for narcotics offenses, serious offenses which present a danger to society and to the boy.
Upon the issue of whether relator should have been retained in juvenile court for further attempted rehabilitation, or whether the petitions should be dismissed in order that he be tried as an adult, the foregoing evidence supports the juvenile court’s action in these ultimate respects: Relator’s four referrals show that he was not responding to treatment in his own *734home by way of informal adjustment. His poor performance in school shows that he could not conform his conduct to the standards of the school. Because of overpopulation, shortness of stay, and relator’s age above the average of the Training School for Boys, commitment to that institution would be ineffective, especially in view of its poor experience in treating boys who had narcotics violations — that relator’s chances for progress, because of his age and the narcotics violations, were not great, according to Mr. Button. There were no facilities for treating one in a “structured environment” in Clay Clounty. The offenses alleged, being felonies, are serious. The juvenile court’s exercise of discretion as permitted by Sec. 211.071 is supported by the evidence. There is no need for the reviewing court to “be remitted to assumptions” in this case. “The basic requirements of due process and fairness” are here satisfied. In such a case the findings or reasons, being present in evidence, must be deemed to have been made in accordance with the result reached. See Rule 73.01(b) providing for that treatment of a court-tried case, and the comparable Criminal Rule 26.01(c) for the same treatment in jury waived criminal trials. And see the analogous holding in State v. Blackwell, 459 S.W.2d 268, 272 [3] (Banc Mo.1970), that a remand for specific findings is no longer required as to the applicability of the Second Offender Act where there is sufficient evidence in the record on that issue. See also Oliver v. Fisher, 430 S.W.2d 611 (Mo.App.1968), holding that the reasons which the court had in mind when the case was decided are not determinative if the judgment was correct on any theory. In this connection it is interesting to speculate what the Supreme Court in Kent would have done by way of granting certiorari, if the “basic requirements of due process and fairness” were shown by the record to have been accorded Kent, i. e., counsel’s access to the Social Service files and a hearing resulting in evidence sufficient to support the transfer, with the only thing lacking being a recitation in the order of reasons for the waiver of jurisdiction. As demonstrated above, on its facts, this case is far removed and sharply contrasted to the facts in Kent, hence there is no real basis to cause the juvenile court to reassume jurisdiction over relator because it did not go through the formality of stating “reasons” for its action.
It is apparent that no one was misled by these proceedings wherein the seriousness of the offense (a fact to be considered) and the lack of facilities locally as in the state was in evidence, together with a probable lack of success in rehabilitating relator by further attempted treatment at the juvenile court level.
There is a further reason why prohibition against respondent magistrate should not lie. If there existed an insufficiency of evidence to support dismissal of the petitions and order for transfer for prosecution under the general law, that fact could not support issuance of the writ because of any excess of exercise of jurisdiction. Such action could only be an abuse of discretion correctible upon appeal. The majority of the court in In re T. J. H., 479 S. W.2d 433, 435 (Banc, Mo.1972), held that remedy to be available, “[T]he exclusive method of reviewing the Juvenile Court’s waiver order was a motion to dismiss the indictment in the District Court.” The remedy by appeal is present; it must be deemed to be an adequate remedy, a matter which precludes the issuance of a writ of prohibition. It is no answer to say, as does the principal opinion as to the effect of In re T. J. H., “In dismissing that appeal, the Supreme Court neither identified the legal basis asserted for the appeal, nor ruled it, nor precluded resort by the appellant (this relator) to extraordinary remedy,” the only basis set forth in the principal opinion for the issuance of the writ.
For the foregoing reasons I believe that the preliminary rule in prohibition was im*735providently granted and I therefore dissent, and I would quash the preliminary rule.
In participating in this case and because of the foregoing dissent, in accordance with the provisions of Art. V, Sec. 10, Const.Mo.1970 (effective Jan. 1, 1972), I hereby certify this case to the Supreme Court because of conflict with the opinion, In re T. J. H., 479 S.W.2d 433 (Banc, Mo.1972), as to whether prohibition should be available at all under the factual situation presented because of the remedy of appeal to circuit court (and thereafter) being declared to be available. Furthermore, the question of whether prohibition may lie in this case may have the effect of nullifying the en banc decision of In re T. J. H.
SWOFFORD, J., concurs in dissenting opinion of PRITCHARD, J.