The opinion
THORNTON, J.,
dissenting.
The legislature has unequivocally vested the juvenile court with continuing authority and responsibility for the care and protection of children under its jurisdiction. ORS 419.507 (as amended in 1973). See, State ex rel Juv. Dept. v. Richardson, 267 Or 374, 378 , 517 P2d 270 (1973). In my view the majority opinion is now sanctioning the impairing and weakening of the court’s authority. The opinion says that L is legally entitled to special treatment on the one hand; then says in effect that the juvenile court should not put undue pressure on the Children’s Services Division (CSD) to provide it.
This case comes down to a question of whether CSD is actually without available funds to provide this treatment.
The director of CSD testified that there was an available surplus of funds for treatment of such children at in-state facilities at substantially the same cost. Therefore I am not prepared to say that the trial judge erred in concluding that CSD should have tried to obtain authority from the Emergency Board to transfer its in-state care surplus to the out-of-state category in order to comply with the court’s order.
ORS 291.326(1)(d) provides:
"(1) The Emergency Board, during the interim between sessions of the Legislative Assembly, may exercise the following powers:
"‡ * * * *
"(d) Where an emergency exists, to revise or amend the budgets of state agencies to the extent of authorizing transfers between expenditure classifications within the budget of an agency.” (Emphasis supplied.)
In Norman v. Van Elsberg, 262 Or 286 , 497 P2d 204 (1972), the statute in issue there authorized judges of juvenile courts to fix salaries of juvenile counselors *270 but also provided that such salary must be approved by the budget-making body of the county. Our Supreme Court, in reversing this court, held that the statute meant that juvenile court judges were to have authority to fix salaries subject to scrutiny of the budget-making body of the county only for the purpose of rejecting the proposed salaries if they were found to be unreasonable; that the word "approved” did not mean that budget-making body of county had final authority to designate juvenile counselors’ salaries.
In the case at bar I would agree that under the separation of powers doctrine the juvenile court has no authority to order the legislature or the Emergency Board to appropriate necessary funds. I do not, however, construe the court’s order as constituting such action.
Following the rationale of Norman v. Van Elsberg, supra, and Children’s Services Div v. Weaver, 19 Or App 574 , 528 P2d 556 (1974), I would modify the order of the trial court by providing that CSD is directed to apply to the Emergency Board for that Board’s approval or rejection of either of the following: (a) authority for CSD to make the above transfer of funds, or, in the alternative, (b) allocation of sufficient additional funds to provide the subject treatment for L, or show cause why such action is not taken, and affirm as thus modified.