concurring. The majority concludes that the judgment below must be reversed for two reasons: (1) judges cannot legislate by setting salaries, Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980); Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978); and (2) even if the act is unconstitutional, the court’s order alone is not sufficient to show that the salaries demanded for two probation officers were essential to the administration of justice. See Union County v. Union County Election Comm., 274 Ark. 286, 623 S.W.2d 827 (1981). That ought to end the matter. Yet most of the opinion dwells on an issue I think we need not answer. That is whether probation officers are county or state employees and the power of the general assembly, through what amounts to local legislation, to impose on counties all expenses for circuit court employees with no recourse at all for the counties.
All the authority the majority cites to support the proposition that the state legislature can require the counties to pay the salaries and expenses of the courts is pre-Amendment 55 and pertains to employees and expenses obviously necessary for the administration of justice. For example, the older cases state that a court reporter is undoubtedly necessary for any court of record. See McLellan v. Pledger, 209 Ark. 159, 189 S.W.2d 789 (1945). A court house or a place to hold court is also essential. Turner, ex parte, 40 Ark. 549 (1883).
But there have been changes in our judicial system so that now judges have secretaries, probation officers, deputy probation officers, case coordinators and bailiffs. That is, some judges do. Some are not so fortunate, because invariably the ability of a particular judge to get these assistants depends upon his influence with legislators serving the county or counties of the judge.
Before Amendment 55 it was customary, indeed necessary, for such local legislation to be approved by the local county judge, who had to insure that funds were available to pay local employees of the judges. That mutuality of respect and trust has obviously deteriorated and this case is a good example of what exists now: quorum courts, with the power over all the county expenses, in conflict with judges who have obtained special legislation for their individual needs.
I would not so quickly conclude that these probation officers are not county employees and that this is not a local matter. This particular circuit is composed of two counties, the largest in the state, Pulaski, and one of the smallest, Perry. There are ten judges serving the circuit. How many employees each has we do not know. Does Pulaski County pay the salaries of all the employees? The record is silent to these relevant facts. Until recently the court reporters were paid locally, each county bearing a part of the responsibility of the salary of the court reporters. Now they are paid by the state. Act 16 of 1981.
Undoubtedly, these employees are “local” or county employees according to the record. They are paid entirely from local funds; the state does not pay them one dime. Furthermore, the legislation was labeled “local,” thereby relieving from responsibility all legislators except those from Pulaski County. So has the state decided this is indeed a matter of state interest? Our prior cases might not control if this issue is squarely before us. Amendment 55 § 4 expressly provides that quorum court shall have the power to fix the salaries of county employees. We should not rush to judgment on this issue. The majority opinion does not mention Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), which has altered dramatically our approach to local legislation. Until the state, in legislation that is not local, declares these employees to be state employees or a matter of state interest and orders the counties to pay their salaries, fully aware of its actions, or until we have a more complete record to decide the issue, I would withhold judgment.
There are some other things which ought to be said. We do not have many questions on the separation of powers issue. Either the separate branches of government try to avoid infringing on the powers of each other and, in the main, respect the roles of each other, or the disputes are allowed to pass without litigation. Most cases are like this one where both parties have good arguments but the disagreement seems trivial. The trial judge’s request seemed reasonable and no reason is given by the quorum court why it was refused. The quorum court appropriated just enough money to avoid a finding that it had refused to fund a position apparently necessary to the function of the court. Did it treat this judge’s request the same as other judges? We do not know. Perhaps the quorum court should address itself to its local legislators if it objects to legislation such as this. Perhaps the judges should make certain that such legislation is within the means of the local government and actually necessary before they seek it. With Amendment 55 a local legislative body now exists with new power and responsibility over local officials and the expenditure of money. That body is anxious to exercise the power and responsibility. Judicial officers who, before Amendment 55, were able to obtain their needs through the county j udge and local legislators now find themselves, just as all local officials do, having to humbly request funds from the quorum court. Sometimes the quorum courts do not act maturely.
It does not serve the best interests of the judiciary, local government, or state government to allow the conflict between local authorities and judges to continue. I believe a solution lies in encouraging the legislature and the judiciary to approach the problems of the circuit and chancery courts in a uniform manner. As this case illustrates, now the matter is approached on a piecemeal basis with local legislation. This will not stop until the legislature stops treating each court individually. Perhaps that will not happen until the judges stop asking. The counties, particularly Pulaski, which has an abundance of trial judges and court employees, should join in this effort, not in an attempt to avoid their rightful burden of the cost of local justice, but to find a fair resolution of a problem that will not improve if ignored.
There should be uniform treatment of the courts statewide. The legislature should determine how many employees are needed for each circuit and chancery court, declare it so, and pay them or pay part of the expense and order the counties to pay the remaining amount. Any other employees deemed necessary by the judges should be obtained and paid for locally. The needs of the judiciary would thus be met and judges would not have to beg. The quorum courts would have to pay certain expenses locally and would do so without quibbling. The friction between the two would stop. The General Assembly has the power to do this because it decides the number and geography of the circuit and chancery courts. In 1977 reapportionment equalized case loads and the geographical areas of the circuits. Act 432 of 1977.
Our decision has resolved nothing of importance; but, as a result a great deal could and should be resolved.