concurring in part, dissenting in part.
I concur in the majority opinion and with the granting of the writ of certiorari, but I would do so on somewhat different grounds than the majority.
The circuit court treated the motion in the Trublood case as one requesting a change of venue, deemed it uncontested, granted it, and then gratuitously and wrongly invalidated the act which would have necessitated the venue change.1 It thereafter entered a standing |14order implementing the latter conclusion. I have no hesitancy in concluding that this action constituted a plain, manifest, clear, and gross abuse of discretion apparent from the face of the record.
It is rare for this court to reach the merits of the controversy when deciding a petition for a writ of certiorari. We have done so, however, in an exercise of our superintending control. See Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994). We have also done so to set aside some type of unauthorized relief ordered below that constitutes a plain, manifest, clear, and gross abuse of discretion for which there is no other mode of review. See Helena Daily World v. Simes, 365 Ark. 305, 229 S.W.3d 1 (2006) (writ of certiorari granted to set aside “gag order” constituting unauthorized prior restraint); Ark. Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000) (same); King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996) (writ of certiorari granted to set aside order calling for a new election); Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954) (writ of certiorari granted to set aside refusal of trial court to modify its local rule requiring association of local counsel, where rule was contrary to statute and unreasonable). I therefore concur in the majority’s decision to determine the merits of the controversy. I disagree, however, with at least some of the majority’s resolution of the merits.
I agree that Act 74 of 1883 provides for the continued existence of two judicial districts in Carroll County and that the Act is not unconstitutional under the Arkansas Constitution, article 13, § 1. I also agree that neither Arkansas Code Annotated section l-2-| 1fi105, nor Act 797 of 1997, nor Arkansas Code Annotated section 14-14-201, nor amendment 55 to the Arkansas Constitution impliedly repealed the pertinent portions of the Act. I disagree, however, that Arkansas Code Annotated section 16-17-904 (Act 1727 of 2003), repeatedly invoked by the majority, has any real impact on the question.
As an initial matter, I agree that the “county seat” issue is not properly before us and is, in any event, not determinative of this appeal. This court in Law v. Falls, 109 Ark. 395, 159 S.W. 1130 (1913), discussed the legality of rebuilding a courthouse in Dardanelle in Yell County. Act 100 of 1875 created two judicial districts in that county with jurisdiction assigned as if the two districts were separate counties. The Act did not interfere with the holding of the court in Danville, the county seat. The Dardanelle courthouse was built but later burned down. The county court thereafter entered an order to build a new courthouse at Dardanelle at the expense of the county. The plaintiff sued, contending that the county court had no authority to provide for the building of more than one courthouse, and that the building must be at the “seat of justice,” which meant the county seat. This court stated that
however nearly “seat of justice” and “county seat” are synonymous, it is apparent that a seat of justice is not always a county seat, although a county seat is perhaps always a seat of justice. When this act became effective, upon the building of the courthouse, Darda-nelle became a seat of justice, for here the courts sat and administered justice, and the public officers kept their offices, and performed the functions of their offices.
Id., 159 S.W. at 1131.
|lfiI do not, therefore, consider it critical whether Eureka Springs is deemed a “county seat” or simply a “seat of justice” in determining whether Carroll County can have two validly created judicial districts, and I do not disagree with the majority’s refusal to hinge its decision on that issue.
I do disagree, however, with the majority’s repeated reliance on Arkansas Code Annotated section 16-74-904 as authority for the existence of two judicial districts. The fact that Arkansas Code Annotated section 16-17-904 (Act 1727 of 2003) refers to Carroll County as having two judicial districts and two county seats for purposes of holding district court can hardly be said to have created two judicial districts or county seats where they did not otherwise exist. It is unnecessary to look to section 16-17-904, because, in my view, Act 74 of 1888 remains the law as to the creation of two judicial districts in Carroll County. It is not unconstitutional, nor has it been superseded, as to the creation of two judicial districts. This conclusion is supported by our case law.
In Hutchinson v. Ozark Land Co., 57 Ark. 554, 22 S.W. 173 (1893), this court addressed the constitutionality of a similar act in Clay County. See Act 14 of 1881. Two judicial districts were created and thereafter, the county court levied a different tax millage in each. A resident of the higher-taxed district sued, claiming the Act was unconstitutional under Arkansas Constitution article 16, section 5, which requires equality and uniformity in |17the levy of property taxes. This court invalidated the “financial provisions” of the Act,2 stating,
It is difficult, therefore, to see what effect can be given to the financial provisions of the act quoted above. But in determining this cause it is sufficient to say that these provisions cannot be treated as having created separate taxing districts without holding that they impair the unity and power which the constitution secures to Clay county as a political subdivision of the state.
Hutchinson, 57 Ark. at 559-60, 22 S.W. at 175.
This court did not invalidate the entire Act and was careful to limit its holding to the financial separation provided for in the Act, the only question presented. See also Woolard v. Thomas, 238 Ark. 162, 164-65, 381 S.W.2d 453, 454-55 (1964) (stating that Hutchinson invalidated the Act “insofar” as it separated the financial affairs of the two districts). The Hutchinson court also relied on an earlier case, Patterson v. Temple, 27 Ark. 202 (1871), which invalidated as unconstitutional an act creating two judicial districts in Sebastian County, one in Greenwood and one in Ft. Smith.3
In Patterson, an act approved March 28, 1871, created not only two judicial districts and two circuit courts, but also two county courts and two probate courts, and provided for | isthe separate assessment of property, the separate levy and collection of taxes, and the division of the indebtedness of the county in proportion to the taxable property of each. The allegation was that this Act violated a provision of the Arkansas Constitution of 1868 (article 15, section 1), identical to article 13, section 1 of our present Constitution, prohibiting the reduction of counties to less than six hundred miles. Although the Patterson court invalidated the Act, it acceded to the proposition that the legislature may create two judicial districts:
But, it may be said, the General Assembly can create judicial districts and define the powers and jurisdiction of the courts therein created. While we may accede to that proposition, taken in its general sense, we emphatically deny that it can do so for Sebastian County, as a county, and thereby destroy all its corporate existence in that indirect way, and virtually make two counties under the name of districts.
Patterson, 27 Ark. at 210. The court in Patterson invalidated the entire Act, finding it nonseverable. Id.
A striking difference appears in the facts of the Patterson case and this case, however: Act 74 of 1883 does not create two separate “county courts,” a feature of the Act the court found particularly troubling:
[C]an the General Assembly create, for a single specified county, two separate and distinct county courts, clothed with all the powers and duties appertaining to such tribunals, when the justices of the peace are selected from townships whose area is admitted to consist of less than six hundred square miles ... ? We think not.
Id. at 208. That feature does not appear in Act 74 of 1883, and in my view, although its provisions — to the extent they purport to allow different tax levies in each district — are unconstitutional under Hutchinson, the remaining provisions pertaining to the creation and ^jurisdiction of circuit courts may nonetheless be given effect. See, e.g., Walker v. State, 35 Ark. 386 (1880) (Act of December 15, 1875, creating two judicial districts in Yell County and limiting the selection of jurors to each district was not unconstitutional as denying the right to a jury trial or as reducing the area of the county; it merely divided the county into two judicial districts and the question of whether the public convenience is served by holding court in Darda-nelle, as well as Danville, the county seat, is a matter of legislative discretion); Bonner v. Jackson, 158 Ark. 526, 251 S.W. 1 (1923) (Act 111 of 1923, creating two judicial districts in Woodruff County, was not unconstitutional and the Act’s provision creating two county courts was not squarely presented and to the extent it was unconstitutional would be severable under the severability clause.); Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981) (distinguishing Robinson v. Greenwood, 258 Ark. 798, 528 S.W.2d 930 (1975), which had invalidated an act creating two separate quorum courts in Sebastian County under amendment 55 to the Arkansas Constitution, and upholding, as against an allegation that it was contrary to amendment 55, Arkansas Constitution article 13, section 5, which allows Sebastian County to have two judicial districts).
In my view, therefore, those portions of Act 74 of 1883 that divide Carroll County into two judicial districts for the purpose of administering the courts of Carroll County are constitutional and have not been superseded by subsequent law. It is irrelevant in my view whether Eureka Springs is a “county seat” or merely a “seat of justice,” and I do not believe Arkansas Code Annotated section 16-17-904 is controlling on the point. Finally, in my |2nview, it is unnecessary to reach the constitutional issue regarding the separation-of-powers doctrine. I therefore concur in part with the majority opinion and dissent in part.
. Section 6 of Act 74 of 1883 provides that "the Circuit Court hereby established in the respective Districts of Carroll County shall be as distinct from each other and have the same relation to each other as if they were Circuit Courts of different counties, and may change the venue of case [sic] from one District to another, or to any other county in the Judicial circuit, in like manner as changes of venue are granted in this State.”
. Act 14 of 1881, like Act 74 of 1883, provides for two separate judicial districts and requires that "all revenue ... from all ... sources ... shall be used for the exclusive benefit of the district in which such revenue may arise.”
. The Patterson case was decided prior to the adoption of the Arkansas Constitution of 1874, which contains special provisions in that regard for Sebastian County. See Ark. Const, art. 13, § 5.