dissenting. My disagreement with the majority goes to the classification of this action as “viz, that Davidson is demanding a particular type of hearing.” As I view this statement by the majority they are doing an injustice not only to Davidson but also to the Chancellor who only enjoined the Arkansas State Police Commissioners from barring the press and public from any hearing held in connection with Davidson’s appeal.
The record shows that Davidson, a career State policeman, was publicly fired by written letter charging him with having received public monies to which he was not entitled. In accordance with Ark. Stat. Ann. § 42-406 (d) (Repl. 1964) he made written application for reinstatement. The Commission notified him that a hearing would be held on August 19, 1971, at 2:00 p.m. In the meantime Davidson learned that the Commission had been barring the public and the press from such hearings and on August 11, Davidson requested that his petition be considered at a public hearing in accordance with the Freedom of Information Act, Ark. Stat. Ann. §§ 12-2801 — 12-2807 (Repl. 1968). The Commission did not respond to Davidson’s request for a public hearing until 4:05 p.m. August 17, 1971, which did not leave Davidson with enough time to apply for a writ of mandamus [Ark. Stat. Ann. § 33-106 (Repl. 1962) requires a minimum of two days notice as a prerequisite to a hearing on a mandamus petition and in Savage v. Hawkins, 239 Ark. 658, 391 S.W. 2d 18 (1965), we held such notice to be mandatory.]
Davidson applied to the Chancery Court for a temporary injunction that was granted on August 19, 1971.1 At that hearing the Commission objected to the Chancellor’s jurisdiction. That afternoon the Commission indefinitely postponed Davidson’s appeal for a hearing pursuant to Ark. Stat. Ann. § 42-406 (d). Davidson then applied to the Circuit court for a writ of mandamus to comoel the Commission to hold a hearing.2 The Circuit Court by a letter opinion, copied in the majority opinion, denied any mandamus relief until the Freedom of Information Act controversy was determined in the Chancery action.
The permanent injunction entered by the Chancellor reads:
“That this Court has jurisdiction to afford petitioner the relief that he seeks for'the above stated reasons, and this Court specifically holds that the Freedom of Information Act applies to this matter, and that the ‘personal exclusion provision’ in said act does not apply to this matter since the petitioner had not been personnel of the Department of Public Safety since July 22, 1971, when he was officially discharged and his badge and all other muniments of his office were taken away from him.
“IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Demurrer of the respondents filed herein is overruled, and the Temporary Injunction rendered by this Court on August 19, 1971, should be, and the same is hereby made permanent, and the respondents are permanently restrained and enjoined from barring the public and the news media from any hearing which they may hold in the future concerning the appeal of the petitioner from his dismissal as a State Police Officer; and the Temporary Injunction Bond of $1,000.00 filed herein in cash by James E. Sparks in behalf of the petitioner, should be, and the same is ordered by the Court to be remitted by the Clerk of the Court to the said James E. Sparks, or James Thweatt, his attorney of record, and the costs of this action are assessed against the respondent Arkansas State Police Commission.”
Thus as can be seen from the order, the Chancellor did not compel the Commission to do any thing. The order entered does not mandamus the Commission to hold any kind of a hearing nor require it to perform any duty — it only enjoins the Commission from barring the news media and the public from any hearing it may hold concerning Davidson’s appeal.
This court has long recognized that equity has jurisdiction to grant relief where the legal remedies are inadequate, Ark. Cotton Grs. Co-op Assn. v. Brown, 168 Ark. 504, 270 S.W. 1119 (1925), and that an adequate remedy at law means a present remedy — not one that may be exercised some time in the future, Taylor v. Bank of Mulberry, 177 Ark. 1091, 9 S.W. 2d 578 (1928). In Black v. Bowman & Trammel, 9 Ark. 501, (1849), the jurisdictional issue was stated in this language:
“It is a general rule, says Judge Story, subject to few exceptions, that where the plaintiff can have as effectual and complete a remedy in a court of law as in a court of equity, and that remedy is direct, certain and adequate, he must resort to a court of law for redress. But where there is a clear right, and yet there is no remedy in a court of law, or the remedy is not plain, adequate, and complete, ánd adapted to the particular exigency, then, and in such cases, courts of equity will maintain jurisdiction.” (Emphasis mine).
In this case the record shows the Commission waited until Davidson did not have a plain and adequate remedy at law, Savage v. Hawkins, supra, before it informed Davis of its intention to hold a secret hearing. Thus at the time Davidson filed his petition in Chancery, he did not have a plain, adequate and present remedy at law because Ark. Stat. Ann. § 33-106 requires a minimum of two days notice before a hearing could be had at law.
On the merits, I agree with Davidson. The letter by which he was fired in effect publicly accuses him of embezzling public money through the receipt of fines that he was not entitled to receive. Ark. Stat. Ann. § 42-406 (d) contemplates that any testimony heard by the Commission be transcribed because it authorizes an appeal to the Circuit Court of Pulaski County upon the record made before the Commission. Thus the Commission by holding a dark secret meeting really SERVES NO confidential personnel problem. When it is remembered that the charge upon which Davidson was fired was by law made a public record, one can only wonder what public purpose the Commission is serving in barring the news media and the public from the hearing it is required by law to hold. Of course, if, in such secret meeting, the Commission should reinstate Davidson, then of course he will have no right of review because of mootness and will not be able to obtain a transcript of the evidence heard — and in that case he will have proved his point that he did not have an adequate remedy at law to publicly vindicate the charges against him. While there may be some who would think that the reinstatement alone should be sufficient vindication, the public, because of the darkness of the secret meeting, may assume that the Commission did nothing more than whitewash the matter.
For the reasons stated, I respectfully dissent.
The only prayer in Davidson’s petition was:
“Wherefore, premises considered, petitioner prays that this court issue forthwith a temporary injunction restraining and enjoining the respondents from barring the press and the public from the hearing to be held on August 19, 1971 at 2:00 p.m. on the case of this petitioner; that upon final hearing said injunction be made permanent.”
Davidson did not request any reliet m ttus petition under the Freedom of Information Act.